BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LUXEMBURG-CASCO SCHOOL DISTRICT
Mr. David B. Kundin, Executive Director, Bayland UniServ,
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 District named above are parties to a 2001-2003 collective
agreement that provides for binding arbitration of certain grievances. The parties jointly
the Wisconsin Employment Relations Commission to appoint the undersigned to resolve a
involving mileage. A hearing was held on December 11, 2002, in Luxemburg, Wisconsin,
time the parties were given the opportunity to present their evidence and arguments. The
completed filing briefs on March 21, 2003.
The parties ask:
Did the District violate the collective bargaining agreement
when it declined a mileage request
related to extra curricular functions? If so, what is the appropriate remedy?
The collective bargaining agreement for 2001-2003 provides under the salary
cents per mile for travel to teachers who must travel between schools. That provision has
as the second item in several previous bargaining agreements.
David Feldhusen, a teacher in the District for the past 12 years, filed this grievance.
has two extracurricular assignments senior high newspaper and 7th
grade boys basketball coach.
Feldhusen had the coaching assignment for about for three or four years, then he was out of
four or five years, and has held it again for the last two years. He teaches at the high school
Luxemburg and drives to Casco for the basketball assignment. The round trip is 10 miles.
were some tournaments in Denmark, Wisconsin, that involved more miles.
Feldhusen submitted mileage requests to the Business Manager, Sue Buchholz, who
them on February 6, 2002. Buchholz's denial stated that the District has approved a list of
to staff members for assuming extra curricular and/or athletic activities or positions, and that
coaching contract and payment is intended to pay him for time and personal expenses, such
traveling time and mileage. Her letter also stated that the only parties that receive mileage
events are referees that officiate at games.
Feldhusen had not submitted mileage requests in the past, but he had leased a vehicle
started watching his mileage more. He recalled the mileage reimbursement statement in the
contract and decided to see whether it applied to him. When his request was denied, he filed
grievance. In response to his grievance, Buchholz replied on February 21, 2002, that no
member with a coaching contract has been paid mileage for travel to practices. Charles
Schmiling, Dwight Will, Randy Warnek and Dawn Hanson have had coaching assignments in
different school building or location. In a later step of the grievance process, the District
Administrator, Patrick Saunders noted that Feldhusen did not request mileage during eight
he coached at the middle school. Saunders also noted that since 1999, at least five other
have taught and coached in combinations involving travel to or from the middle school, and
the individuals nor the Association interpreted the mileage reference to extend to extra
assignments. Saunders checked with 15 other school districts that indicated no mileage was
coaches in the northeastern part of the State.
The parties agree that no one ever asked for mileage before in a similar
also agree that the mileage reimbursement statement has been in successive labor contracts
The collective bargaining agreement has the major extra duties on the last page of the
contract, separate from the salary schedule where the mileage reimbursement appears. One
extra duties listed under senior high is DECA/FFA/FBLA. Pat Staege is a teacher at the
high school and has an extracurricular assignment as advisor to the DECA Club.
DECA is Distribute
Education Clubs of America. Staege is paid mileage for going to Sam's Club to pick up
items or going to a meeting in the summer. He has held this extracurricular assignment for
and has been paid mileage all those years. Other club advisors for the FFA and FBLA also
Saunders has been the District Administrator for four years. He checked with Board
who had been on the Board for several years, and none of them recalled negotiating mileage
athletic assignments at different locations. Saunders testified that Staege's role as DECA
not extra curricular but it is instructional and part of his teaching assignment. A grade is
and evaluations are given, and the activity is reflected on students' report cards. Saunders
distinction between academics and athletics and stated that the extra curricular assignments
with academics got mileage paid.
Article IV of the collective bargaining agreement states that teaching assignments by
area or grade level will be specified on individual contracts, and deviation from the contract
upon mutual consent of the teacher and administrator. Feldhusen's individual contract states
teaching assignment is history, and his extra curricular is senior high newspaper and
basketball. Article VI states under non-teaching duties that major extra duties and extra pay
duties as established by the Board will be indicated on the teacher's contract but not as part
Saunders testified that on the list of major extra duties on the back of the contract,
duties that are tied directly to instruction are paid mileage, such as the fall musical, the
and senior band/vocal. The fall musical is part of a teaching load but takes time outside of
to prepare and practice. Saunders stated that music is a curricular subject. Similarly, the
musical and senior band/vocal assignments qualify for mileage. However, other curricular
assignments such as the math competition and academic competition do not qualify for
THE PARTIES' POSITIONS
The Association asserts that the language in the collective bargaining agreement states
26 cents per mile will be paid for travel to teachers who must travel between schools, and
language should apply to any staff member who has an extra duty assignment such as
fact that no teacher ever asked for it before does not preclude Feldhusen from being eligible
The District argues that the mileage provision only applies to the salary schedule and not the
duty schedule, but at the end of the day, it is all payment for performing services rendered to
District. Regardless of whether it is the regular assignment or part of an extra duty
assignment, it is
still part of the same basic teacher's contract.
During the course of the hearing, the District's position seemed to change after
unrefuted testimony that he always got mileage reimbursed for travel related to his extra duty
assignment as the DECA advisor. Saunders then explained that the DECA advisor extra duty
assignment was academic in nature. Thus, when the extra duty assignment was academic in
mileage was paid but if the assignment was athletic or non-academic, then mileage was not
There is no language in the collective bargaining agreement that reflects that distinction.
Arbitrators are to give words their ordinary and popularly accepted meaning. Many
arbitrators apply a "reasonable man standard," where the party whose understanding is most
aligned with the ordinary meaning of that language is entitled to prevail. The plain language
that "teachers" receive the mileage benefit, and the District's interpretation cannot withstand
under a reasonable man standard. No reasonable person could read that language to prohibit
teacher from receiving a benefit afforded to a colleague merely because one teacher's extra
assignment is academic and the other's is athletic. The language does not say that.
The Association argues that past practice does not apply or support the District's
interpretation of the mileage reimbursement clause. There is nothing ambiguous about the
dispute. The District seeks to prove that its custom and practice is not to pay teachers
travel related to non-academic extra duty assignments. However, the mileage provision
that teachers shall be paid mileage for travel between schools, making no distinctions
whether the travel is related to regular duties or extra duty assignments, and making no
between the type of extra duty assignment. If the contract language were designed to pay
for some extra duty assignments and not for others, those distinctions should appear in the
Absent such distinctions, the plain meaning of the language must prevail.
The Association states that even during the hearing, the District admitted that the
the language did not preclude its application to some extra duty assignments. The District
prohibit only certain types of extra duty assignments from this benefit. Such distinctions
only in the minds of the employer but must be contained in the contract. As a remedy, the
Association seeks to have the District pay Feldhusen the full amount of mileage
submitted for the 2001-2002 school year for his extra duty assignment as
7th grade basketball coach.
Also, any other teacher who seeks mileage for extra duty assignments shall also receive this
payment regardless of the type of extra duty assignment.
The District contends that the collective bargaining agreement is silent with regard to
on its discretion not to reimburse individuals for mileage relating to coaching activities.
management rights provision, the District reserves the rights, authority,
duties and responsibilities that are not specifically denied it by virtue of the provisions
agreement or by law. The agreement thus reserves to the District the right to determine who
reimbursed for mileage relating to the performance of extra duties, and the agreement is
silent as to
any limitation on that right. The Employer retains all managerial rights except as expressly
The mileage provision is at the bottom of the salary schedule and is not included in
extra duties schedule. The extra duties schedule is silent regarding mileage. The location of
mileage reimbursement footnote on the salary schedule is critical and was put there to
applicability to teaching duties alone. Had the parties intended mileage to be reimbursed for
performing extra duties, they would have included such a provision at the bottom of the
duties schedule, but they did not. Moreover, the salary schedule and major extra duties
separate documents with separate purposes. Base salaries and compensation for extra duties
distinguished under Article VI, A. The District asserts that the labor agreement must be
as a whole.
Also, the District states, the mileage footnote refers to "teachers" and a coach is not
as a teacher. The footnote provides those teachers who "must travel" between schools shall
reimbursed for mileage. No individual must travel between schools to perform extra duties
coaching since participation in extra duties is voluntary. Teachers and non-teachers alike are
to perform coaching duties under the major extra duties schedule. Applying the footnote at
bottom of the teacher's salary schedule to the extra duties schedule would therefore lead to
nonsensical result of teachers being eligible for reimbursement and non-teachers not being
Adopting the Grievant's position would give the agreement an unreasonable, illogical
contemplated by the parties. To expressly include some guarantees in an agreement is to
others. The omission of a mileage reimbursement provision in the major extra duties
the intent that there is no obligation to pay mileage for extra duties.
The District further argues that past practice is not admissible as the contract is clear
unambiguous. Even if the agreement were deemed to be ambiguous, it is the Association's
to show that a past practice exists, and it has not done so. The evidence shows that mileage
for curricular extra duties, not extra curricular duties such as coaching. Also, the custom
of other school districts and the bargaining history of the parties are substantial evidence that
parties did not intend to reimburse coaches for mileage. No living Board member recalled
intending to pay coaches for mileage. The Grievant and the Association have acquiesced in
District's consistent exercise of discretion not to pay coaches for mileage, and thus have
objection to the District's denial of this grievance.
In Reply, the Association
The District first said it would not pay mileage for travel related to extra duty
The after Staege testified that he was paid mileage for travel for an extra duty assignment,
said that it paid mileage for only some extra duty assignments but not
others. Those assignments that involved academic extra duty assignments would
receive mileage, but
not athletic extra duty assignments, according to the District. However, that distinction does
appear in the contract itself. So now the District says it has a management right to make that
distinction. The Association replies that this expansive interpretation of the management
conveniently allows the District to deny this grievance and keep from having to pay all those
who perform extra duty assignments equally without arbitrary distinctions.
The Association notes that the District has tried to change the nature of the extra duty
assignment and says that these duties are voluntary and not required as that term appears in
contract. According to the District, Feldhusen does not have to travel between schools but
to do so. That argument is without merit and flies in the face of logic and contract law.
teacher may volunteer to take on an extra duty assignment, the District would not argue that
teacher has a choice of whether to travel to the site where the coaching duty is to take place.
District would not allow the teacher to decide whether or not to travel to the school where
basketball team practices, or permit the teacher to decide whether or not to attend practices
No interpretation of the master agreement can be made the allows such an absurd result to
The teaching contract establishes the contractual obligations and those are not voluntary.
The mileage provision is part of the contract and appears right after the salary
District refers to it as a footnote. But would the District argue that the Board obligation to
to 6.5% of the salary for State teacher retirement is a footnote that only applies to the salary
and not to extra duty pay? Surely not, because the District pays retirement on extra duty pay
it does for regular salaries. The District is stuck with language that it cannot ignore and is
for straws to prevent its application.
While the District argues that past practice supports its refusal to pay coaches mileage
travel between schools, the fact that a provision in a contract has not been tested is not
any acquiescence on the part of the Association. There is no waiver, it just means that no
Feldhusen sought mileage.
In Reply, the District
The District objects to the Association's misstatement of the District's position when
that the position seemed to change. The Association's argument is fatally flawed because it
distinguish between the clearly distinct terms "extra duty" and "extra curricular." The
took the position that the mileage provision applied to any extra duty assignments. Saunders
testify that the District elected to pay mileage to curricular activities pursuant to the mileage
on the salary schedule. The District paid mileage for curricular duties pursuant to its
The Association is correct in stating that there is no language in the collective
agreement that reflects a distinction between curricular and extra curricular activities. The
between curricular and extra curricular activities is not based on the language in the mileage
reimbursement footnote on the salary schedule or any other language in the agreement,
distinction is purely a product of the District's management discretion.
Contrary to the Association's position, the inclusion of a footnote on the salary
the exclusion of such a footnote on the major extra duty schedule is a distinction with a
Had the parties intended to pay mileage for major extra duties, they would have included
provision at the bottom of the major extra duties schedule. Moreover, it is irrelevant that the
footnote does not distinguish between curricular and extra curricular activities because the
does not apply to extra duties at all.
The language at issue here is quite clear and clearly applies to the Grievant's
language at the bottom of the salary schedule simply states: ".26 per mile travel for teachers
must travel between schools." While the District has argued that this provision does not
to the next page which contains the major extra duties and stipends, it clearly applies to the
extra duties just as the first footnote under the salary schedule regarding retirement applies to
major extra duties. To find that the first footnote would apply to the major extra duty
the second footnote would not apply would be a ridiculous interpretation of the contract.
the footnote applies to both the salary schedule and the major extra duty schedule.
Moreover, the mileage footnote applies to some of the major extra duties
by the District's
own admission. The District asserts that it has the managerial discretion of whether or not to
mileage and when to pay it and to whom. That is contrary to the contract, which simply
it pays mileage for travel between schools. The contract does not limit the mileage payment
academic subjects or curricular duties. Nor does it exclude the athletic extra duties from the
reimbursement. And while the District states that non-teachers may perform extra duties
coaching, the contract applies to teachers and Feldhusen is a bargaining unit member covered
contract. Presumably, the District can pay people outside the bargaining unit anything it
wants to pay
The District also has landed on the words "must travel" and claims that the coaching
assignment is voluntary. Arguably, all work is voluntary until one accepts the work. Once
agree on the assignment and make a contract for such, the work loses its voluntary nature
becomes subject to the terms and conditions of the collective bargaining agreement, including
and the mileage and any other terms that apply. Feldhusen was required to travel between
as a part of his assignment, and he falls with the mileage's language of "must travel"
The custom or past practice of not paying coaches for mileage for travel between
cannot prevail over the clear language of the contract. Although no one grieved it in the
language remained in the contract and is enforceable. The fact that other schools in the area
not pay mileage to coaches is irrelevant to consideration of the terms of this collective
According, the grievance is sustained and a remedy will be so ordered. The remedy
to the Feldhusen grievance filed and not to all situations that have occurred in the past. The
may work out mileage for the future, apply the terms of this Award, or resolve grievances as
occur. However, a remedy broader than this grievance is not appropriate.
The grievance is granted. The District violated the collective
bargaining agreement when it
failed to pay David Feldhusen mileage that he requested for travel between schools. The
ordered to reimburse David Feldhusen for his mileage request. The Arbitrator will retain
until May 30, 2003, for the sole purpose of resolving any disputes over the scope and
the remedy ordered.
Dated at Elkhorn, Wisconsin, this 8th day of April, 2003.
Karen J. Mawhinney, Arbitrator