BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
PARK FALLS EDUCATION ASSOCIATION
PARK FALLS SCHOOL DISTRICT
Mr. Gene Degner, Executive Director, Northern Tier UniServ
Central, P.O. Box 1400,
Rhinelander, WI 54501, appearing on behalf of the Union.
Wisconsin Association of School Boards, by Attorney Barry Forbes,
122 West Washington
Avenue, Suite 400, Madison, WI 53703, appearing on behalf of the School District.
The Park Falls Education Association, hereinafter referred to as the Union, and the
School District, hereinafter referred to as the District or Employer, are parties to a collective
bargaining agreement (CBA) which provides for final and binding arbitration of certain
which agreement was in full force and effect at all times mentioned herein. The parties
Wisconsin Employment Relations Commission to assign an arbitrator to hear and resolve the
grievance regarding the District's decision to assign Nola Michalski, hereinafter referred to
Grievant, to the Title One reading position for the 2002-2003 school year. The undersigned
appointed by the Commission as the Arbitrator and held a hearing into the matter in Park
Wisconsin, on January 7, 2003, at which time the parties were given the opportunity to
evidence and arguments. The hearing was transcribed. The parties filed post-hearing briefs
briefs by March 13, 2003, marking the close of the record. Based upon the evidence and the
arguments of the parties, I issue the following decision and
The parties were able to stipulate to a statement of the issues as follows:
1. Did the District violate the rights of Nola Michalski when it
assigned her to teach Title One
for the 2002-2003 school year?
2. If so, what is the appropriate remedy?
RELEVANT CONTRACTUAL PROVISIONS
The Board of Education for the School District of the City of
Park Falls and the towns of
Eisenstein, Fifield, and Lake, Price County, Wisconsin (hereinafter referred to as the
its professional employees represented by the Park Falls Association (hereinafter referred to
"Association") in order to effectuate the provisions of Section 111.70 of the Wisconsin
to encourage and increase effective and harmonious working relationships between the Board
the Association, recognize their responsibilities toward each other and the community.
The Board and the Association also
recognize that the ultimate aim of education is the continued
development and implementation of quality in our educational program and the constant
the welfare of our children.
III. MANAGEMENT RIGHTS
The Board, on its own behalf and on behalf of the electors of the
District, hereby retains and
reserves unto itself, all powers, rights, authority, duties, and responsibilities conferred upon
vested in it by the Laws and the Constitution of the State of Wisconsin, and of the United
The exercise of the rights, powers,
authority, duties and responsibilities by the Board, 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
VIII. TEACHER CONTRACTS
. . .
The individual's teacher and
extracurricular assignments shall be specified on the contract. A teacher
may not give up part of his assignment without the consent of the Superintendent and be
eligible for a new contract.
. . .
contracts shall be written in accordance with the provisions of this
. . .
A teacher taking course work at the
request of the Administration to become certified to
teach subjects he or she was not originally hired to teach will be reimbursed for books and
. . .
XVIII. REDUCTION IN
. . .
Seniority: For the purpose of this
provision, seniority shall be computed from the date on which the
teacher was first approved for employment by the Board of Education, and shall accrue only
in any case of continuous employment in the bargaining unit (commences with bargaining
employees hired after July 1, 1997). Seniority for work on a part-time basis shall be
computed at the same percentage as the teacher's part-time contract. Approved leave shall
not be considered an interruption of continued employment for the purpose of this provision.
The District shall provide the Association
with a seniority list annually on or about October
In the event two or more employees,
subject to layoff, are equal in seniority, the determining
factor shall be administrative recommendation, based on such things as academic preparation,
extra-curricular involvement, performance in the classroom and knowledge of subjects
Certification: It shall
be the sole responsibility of the individual teacher to keep his/her certification
current. Such certification shall be on file in the office of the Superintendent of Schools.
Teachers shall be placed according to their
district-wide seniority on any list for which they
have provided regular part-time or regular full-time teaching
services to the Park Falls district requiring such certification,
providing such services were
performed within the last 10 school years, and providing certification in those areas have
Recall: Personnel who
have been laid off shall have recall rights for three (3) school years
commencing with the second year immediately following the last year worked.
When a teaching position becomes
available, the Board shall recall laid-off teachers in the
reverse order of layoff to any position for which they are certified, providing that they have
taught in that certification areas [sic] in a regular part-time or full-time position in the Park
Falls District within the 10 year period prior to having been laid off, and providing
certification has been kept current in that area.
. . .
VACANCIES, TRANSFERS AND
A. 1. Notices of vacancies,
including extra curricular as well as teaching positions, will be
posted on the official bulletin board in each school and sent to the Association president
as soon as the Administration is aware of the existence of such vacancies. The parties
agree that this language does not provide bargaining unit members with 1st
2. Such notices
shall contain the date of posting, a description of the position, name and
location of the school, requirements of the position, name of the person to which the
application is to be returned and date by which the application is to be returned.
At the time of the events giving rise to this grievance, Nola Michalski had been
the District as a teacher for about 22 years and as an aide for roughly 8 years before that.
22 years as a teacher, she was assigned first as a fifth grade teacher and then, 3 years later,
as a third
grade teacher, a position she held until the 2002 2003 school year. At all relevant
times she was
licensed by the State of Wisconsin to teach Kindergarten through eighth grade and further
(licensed) as a reading specialist. Her reading specialist licensure qualified her to teach the
In July of 2002, the Grievant received notice from the administration that she was to
assigned to teach the "Title One" reading program during the 2002 2003 school year
to working in her regular capacity as a third grade teacher. This grievance followed.
THE PARTIES' POSITIONS
The Union's Initial Brief
The Union believes that the District violated the Grievant's contractual rights by
"conditions of employment" she had enjoyed for 22 years. This change violates the CBA's
in that it tends to upset the harmonious working relationship referred to therein and, hence,
further the ends of that particular contractual clause.
The Grievant was not hired because she held 316 licensure. She was hired because
licensed to teach elementary classes and her movement to a position which required the 316
was the first time the District had considered her 316 licensure.
Article 9 is also violated. This article obliges the District to pay for the cost of new
additional certification required of its teachers in the event it assigns one of them to a
requiring certification or licensure he or she doesn't have. This clause is violated, says the
because the Grievant was already licensed to teach the class into which she was assigned and
therefore the District didn't have to pay the costs of her licensure as a reading specialist.
The District failed to fill the vacant Title One position via external posting. Because
posted the position vacancy internally and did not consider any applicants prior to appointing
Grievant to the position, it placed her into a different certification category and blurred the
between K-8 licensure and specialized teaching certification like the 316 reading specialist.
The Union also argues that the Grievant's reassignment "offends" the seniority
Article 18. The movement of a 22-year teacher into another assignment, and thus a new
category," without her consent "offends the idea of seniority on the other end of the scale."
Union says that in doing so, the District placed the Grievant in a position of potentially
recall rights in her previous position under Article XVIII and denying her "a future
to which she would otherwise have been entitled.
The District's Initial Brief
The District argues that it has the right to assign teachers as it deems necessary under
terms of the CBA, in particular Article 3, the Management Rights clause. The CBA contains
restrictions upon the District to effect involuntary transfers of any employee to any position
he or she is certified.
By transferring the Grievant to the Title One program, the District and the Union
benefited. The District because it could pay for the Grievant's Title One salary out of
thereby freeing up funds it could use to recall a third grade teacher who had been laid off,
Union because one of its bargaining unit members could be recalled from lay off status.
The Union's Reply
The Union seems to argue that the District ignores Article XIX, which requires that
for the Grievant to be transferred to a new position she must first apply for the vacancy.
did not apply for the Title One vacancy, it was a violation for the District to transfer her into
also argues that Article XVIII, Reduction in Staff, requires that a bargaining unit member in
status may only be recalled to a position for which he or she is qualified and because Tracy
the laid off teacher who was called back to fill the position vacated by the Grievant, was not
to fill the Title One position vacancy, she should not have been recalled.
Because the District did not advertise/fill the Title One vacancy from outside the
ranks of its own employees
and because of some prior layoffs of teachers with seniority over other teachers who were
not laid off, i.e. because the
District chose not to reassign more experienced teachers in order to lay off the least senior
teachers, the Union contends
that this transfer was arbitrary and capricious.
Since the management rights article of the contract is limited to "responsibilities
conferred upon it by the laws
of Wisconsin" this transfer should have been bargained with the Union.
The District's Reply
The District reasserts its argument that the contract contains no language restricting
to involuntarily transfer an employee and observes that the Union fails to point to any such
The District, however, did produce evidence to support its actions. The Grievant was the
teacher certified to teach the Title One program and by transferring her to that position it
to recall a teacher on lay off status and shift the cost of the Title One position's salary and
to federal funding thus creating substantial savings to the District.
Although Article XVIII mandates that an employee looses seniority after ten years of
not teaching in a specific
teaching area, this does not constitute a restraint or restriction on the district's right to
reassign its teacher employees.
The Union first argues that the District's transfer of the Grievant to the Title One
teaching position without
her consent contravenes the Preamble to the CBA. The Preamble contains boilerplate
language broadly proclaiming
the respective parties' mutual intent to effectuate the State's statutory provisions relating to
labor relations and to
"encourage and increase effective and harmonious working relationships between the Board
and the Association" and
to recognize the parties' mutual responsibilities towards each other and the community.
According to the Union, when
the District transferred the Grievant without her consent it offended the broad references
relating to "harmonious
working relationships" contained in the Preamble thus constituting a breach of the agreement.
As with any other
contractual language, the Preamble must be read in light of the entire agreement. Its
language may not be isolated from
the rest of the agreement. Its meaning must be determined in relation to the contract as a
whole. Hemlock Public
Schools, 83 LA 474, 477 (Dobry, 1984) and Great Lakes Dredge & Dock Co., 5 LA
409, 410 (Kelliher, 1946).
The Arbitrator thus looks to the balance of the contract to give specific meaning to the broad
conceptual notions set
forth in the Preamble.
The District argues that the "Management Rights" clause gives it the right to transfer
its teacher employees
as it did in this case. The CBA does reserve to the District the right to operate its business
and control the work force
"limited only by the specific and express terms of this agreement." These rights are inherent
to management in any
event and may not be denied unless the exercise of them would constitute a clear violation of
the terms of the contract
"or are so clearly arbitrary or capricious as to reflect an intent to derogate the relationship."
Fairway Foods, 44 LA
161, 164 (Solomon, 1965). This is known as the Reserved Rights Doctrine and the
undersigned recognizes it as a
sound and well entrenched arbitral principle. The question then, is whether the remaining
sections of the CBA contain
any specific and express terms limiting these rights.
The Union complains that the District's actions violated Article IX, which is entitled
"Professional Improvement." Article IX requires that the District reimburse teacher
books and tuition expenses they incur for taking course work leading to certification to teach
they were not originally hired to teach so long as the course work was taken at the request of
District. In the instant case, the Grievant already possessed the certification necessary to
to teach the Title One reading program into which she was transferred. She possessed that
when she was originally hired. No additional course work was required in order for her to
certified to teach the Title One program nor did the District request that she take any.
Article IX has
no application to the facts of this case.
The Union next suggests that because the District failed to post the Title One vacancy
externally and because
it failed to consider any applicants before it transferred the Grievant into the Title One
position, it violated Article XIX,
"Vacancies, Transfers and
Reassignments." Article XIX though, while clearly requiring the District to post
vacancies internally, does not require
it to post vacancies externally. Nor does Article XIX contain any mandate
requiring the District to consider applicants
prior to reassignments. The language of Article XIX is not ambiguous in this regard and the
undersigned finds no
breach of it flowing from the actions of the District.
The Union argues that the reassignment of the Grievant runs contrary to the seniority
provisions of Article
XVIII, "Reduction in Staff." The movement of a teacher with 22 years of experience in one
area of teaching to another
area of teaching, i.e. into a different "certification category" "offends the idea of seniority on
the other end of the scale."
In other words, the Union seems to argue that because the Grievant will lose her recall rights
in the certification area
of K-8 after 10 years, assuming she doesn't teach in the K-8 area for the next 10 years, she
has, by virtue of this
involuntary transfer, lost a "future employment right" to which she would otherwise have
been entitled. This argument
is flawed because it assumes that the CBA contains a prohibition against an involuntary
transfer out of a "certification
area" which results in the loss of recall rights after 10 years. It does not. The District is
free to transfer, involuntarily,
a teacher employee from one "certification area" to another. Once transferred, that teacher's
recall rights in his or her
former "certification area" remain intact for a period of 10 years. This provision in Article
XVIII has nothing to do
with involuntary transfers from one area to another, nor does it prohibit such a transfer. I
have reviewed the case of
Hurley Education Association, XIV, No. 24975, MA-1526 (Houlihan, 1979) and, as well
reasoned as Arbitrator
Houlihan's analysis is, it is not instructive to the undersigned under the facts of this case
other than to offhandedly
observe that his statement "On balance, the Employer's actions seem to be a reasonable
accommodation of all of the
contractual standards" does apply nicely here.
The Union argues that Article XIX, "Vacancies, Transfers and Reassignments"
in order for the Grievant to have been transferred to the new position, she first must have
the position. Article XIX clearly requires no such thing. It requires only that notice of a
posted in a specific place in each school and that it be sent to the Union president when the
Administration becomes aware of the vacancy. It also provides that the notice contain the
posting, position description, name and location of the school, position requirements, contact
and the date by which the application must be returned to the District. Finally, Article XIX
the agreement of the parties that its language does not provide bargaining unit members with
consideration for available positions.
The fact that the Grievant was originally hired, according to the Union, because of
to teach elementary classes and not because of her 316 licensure is quite irrelevant to the
issues in this
case. It remains that she is licensed under 316 and consequently qualified to teach the Title
reading program. Her individual teaching contract provides that she be a professionally
legally qualified teacher and that she will perform services to the District as a teacher.
what she was qualified to do, and did, prior to her transfer and teaching is what she is
qualified to do,
and does, now.
Finally, the Union suggests that the transfer here was arbitrary and capricious. It
supports this argument with
a vague reference to a past layoff of more senior teachers and the District's decision not to
reassign them along with
the fact that the District failed to fill this vacancy from outside the ranks of the membership.
The District was faced
with the need to fill the position of the Title One reading teacher. The Grievant was the
only teacher in the system
qualified to fill that position. Since the Title One position was funded by federal dollars, the
District was able to move
the Grievant into that position and save the funds which otherwise would have been paid to
her and, at the same time,
allow the District to recall another bargaining unit member on layoff status to fill the vacated
K-8 position left by the
Grievant. By doing so, the District also saved the dollars being paid towards the laid off
compensation. The reassignment can hardly be considered arbitrary or capricious. It was
based upon a reasonable
allocation of available District assets which easily passed contractual requirement muster, and
which removed another
bargaining unit member from layoff status by bringing her back to work. In short, it was a
The District did not violate the rights of Nola Michalski when it assigned
her to teach Title One for the 2002-2003 school year.
Therefore, the grievance is hereby denied.
Dated at Wausau, Wisconsin, this 22nd day of April, 2003.
Steve Morrison, Arbitrator