BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
SHAWANO-GRESHAM EDUCATIONAL SUPPORT
SHAWANO-GRESHAM SCHOOL DISTRICT
(Linda Burris Grievance)
David Campshure, UniServ Director, United Northeast
Educators, appearing on behalf of the
James Kalny, Attorney, Davis & Kuelthau, appearing on
behalf of the District.
The Shawano-Gresham Educational Support Personnel Association and the
Shawano-Gresham School District were parties to a collective bargaining agreement which
provided for final
and binding arbitration of grievances. Pursuant to the parties' request, the Wisconsin
Relations Commission appointed the undersigned to decide a grievance filed by Linda Burris.
Hearing on the matter was held on February 19, 2003 in Shawano, Wisconsin, at which time
parties presented such testimony, exhibits and other evidence as was relevant to the
hearing was transcribed. The parties filed briefs and reply briefs by June 30, 2003,
record was closed. Having considered the evidence, the arguments of the parties, the
provisions of the contract, and the record as a whole, the arbitrator makes the following
The parties were unable to stipulate to the issue to be decided in this case. The
frames the issue as follows:
Did the District violate the parties' collective bargaining
agreement when it involuntarily
transferred the grievant, Linda Burris? If so, what is the appropriate remedy?
The District frames the issue as follows:
Does the collective bargaining agreement
require posting prior to the reassignment of duties
under the facts and circumstances of this case?
Since the parties were unable to agree on the issue, the
undersigned has framed it. Based on a review
of the record, the opening statements at hearing and the briefs, the undersigned has framed
Did the District's actions involved herein violate the collective
bargaining agreement? If so, what
is the appropriate remedy?
The parties' 2001-2003 collective bargaining agreement contained the following
ARTICLE III MANAGEMENT
Section 3.01: Management retains all rights of
possession, care of, control of, and management
of the District that it has by law, and retains the right to exercise these functions except to
extent such functions are restricted by the express terms of this Agreement. These rights
at [sic] not limited enumeration to, the following rights:
1. To direct all operations of the
. . .
3. To hire, promote, transfer, schedule and
assign employees in positions with the school
. . .
11. To determine the methods, means and
personnel by which the school system
operations are to be conducted.
. . .
ARTICLE X SENIORITY
. . .
10.03 For purposes of this Agreement, all employees shall be
placed in one or more of the
following classifications based on their current assignments:
a. Maintenance; Custodian, Cleaner
b. Instructional Aide; Non-Instructional Aide
c. Secretary I; Secretary II; Secretary III
d. Computer Technician I; Computer Technician II
e. Central Kitchen Manager; Cook; Cook/Server
. . .
ARTICLE XII JOB
Section 12.01: Vacancies Whenever a
vacancy occurs and the District decides to fill the
vacancy or when a new position is created, it shall be made known to all employees through
Section 12.02: Notice of all
vacancies shall be posted on bulletin boards in convenient
locations in each school of the District for a period of five (5) workdays with the day
posting being considered the first day. When school is not in session for students, copies of
postings shall also be sent to the Union President or his/her designee. Said posting shall
a. Type of work
b. Location of work
c. Starting date
d. Rate of pay
e. Hours to be worked
g. Minimum requirements
Section 12.03: Interested employees may apply,
writing, to the Superintendent, or
designee, within the five (5) day posting period.
Section 12.04: Vacancies
shall be filed with the most senior qualified internal
applicant. Whether or not any internal applicant is qualified shall be determined by the
Board or its
designee in its sole discretion. If no internal candidate is deemed qualified, the Board may
the vacancy to the outside public; interview and hire the outside applicant.
Section 12.05: If the District
utilizes qualification tests such tests shall be uniformly
administered to all internal and external applicants. The Association, upon request, shall be
such test results with the names of all applicants kept confidential.
One-on-One Instructional Aides One-on-One Instructional Aides shall
continue to be allowed to apply for open positions during the school year, as indicated in
12.03, and, if awarded the position, shall start in the new position effective with the
year unless another date is mutually agreed to between the employee and the District
or his/her designee. If the wage rate in the new position is higher than the employee is
receiving as a one-on-one aide, the employee shall receive the higher wage rate and start
seniority, if in a new classification, as if he/she had started in the new position at the time
receives his/her letter of appointment to the new position.
The District operates a public school system for Shawano and Gresham, Wisconsin.
Association is the exclusive collective bargaining representative for regular full-time and
regular part-time aides, custodial, maintenance, secretarial, clerical, and food service
employees of the District.
The support staff employees who work in the job categories just referenced have been
in various classifications. The classifications are identified in Sec. 10.03 of the collective
agreement and in the salary schedule appendix.
There are two classifications for the aides: instructional aides and non-instructional
classification that is pertinent to this case is instructional aide.
There are numerous types of instructional aides. For example, at the High School,
library aides, aides for the Alternative School program, aides for the At-Risk program, aides
English as a Second Language program, computer lab aides, one-on-one aides and aides for
Emotionally Disabled program (hereinafter ED aides).
All of the instructional aides just listed share a common job description. It is the job
description for an instructional aide. Thus, there is not one job description for library aides,
for computer lab aides, another for ED aides, etc. The instructional aide job description
To assist the teacher or other certified
personnel in achieving instructional objectives by working
with individual students or small groups.
1. Works with individual
students or small groups of students to reinforce learning of material
or skills initially introduced by the teacher.
2. Assists the teacher in
devising special strategies for reinforcing skills based on a sympathetic
understanding of individual students, their needs, interests, and abilities.
3. Operates and cares for
equipment used in the classroom for instructional purposes.
4. Helps student master
equipment or instructional materials assigned by the teacher.
5. Distributes and collects
workbooks, papers, and other materials for instruction.
6. Guides independent study,
enrichment and remedial work set up and assigned by the teacher.
7. Assists with the supervision
of students during emergency drills, assemblies, play periods, and
8. Assists with such large
group activities as drill work, reading aloud, and storytelling.
9. Reads to students, listens to
students read, and participates in other forms or oral
communication with students.
10. Under the direction of the
teacher, check notebooks, correct papers, and supervises testing
and make-up work.
11. Types and prepares related
classroom materials, work sheets, study guides, etc.
12. Alerts the classroom teacher
to any problem or special information about an individual
13. Maintains the same high
level of ethical behavior and confidentiality of information about
students as is expected of certified staff.
14. Participates in inservice
training, as assigned.
15. Performs such other duties
The types of instructional aides pertinent to this case are ED
aides and one-on-one aides. A
brief overview of what each one does follows.
ED aides, as the name implies, work with students who are emotionally disabled.
of students they work with varies; some ED aides work with one student, while others work
more than that.
One-on-one aides, like ED aides, also work with students with special needs.
aides work with students who are medically fragile and have special medical needs, such as
tube feeding, diapering, or being moved throughout the system. What differentiates
from ED aides is that one-on-one aides receive special training to perform these tasks that the
aides do not receive. If the student supervised by the one-on-one aide is not at school, the
one-on-one aide is sent home. An instructional aide who works primarily with one student is
automatically a one-on-one aide; it depends on whether the aide has special training.
. . .
The record indicates that the District has changed duty assignments within the support
classifications on several occasions. The examples noted in testimony were as follows: 1)
computer lab aides were switched; 2) a library aide was reassigned to do computer work; 3)
monitor was reassigned to door security; 4) job duties have been shifted between secretaries;
a non-instructional aide was reassigned to an in-school suspension room supervisor. None of
changed assignments were posted. Additionally, none of these changed duty assignments
. . .
The following bargaining history is pertinent herein. Attorney Dennis Rader, who
the parties' initial collective bargaining agreement, testified that when the language was
that ultimately became Sec. 10.03 of the collective bargaining agreement, the Association
the District that that language proposed by the Association limited the District's ability to
duties within the classification. The bargaining history also indicates that when the parties
and agreed on the job posting language found in
Article XII, the Association never proposed, and the District never agreed, that job
duties had to be
Linda Burris, the grievant herein, began working for the District five years ago as a
non-instructional aide. Her first assignment was working as a hall monitor. Her second
working as front door security. This change occurred without any posting.
Prior to the start of the 2000-01 school year, Burris was bumped by a more senior
When that happened, the District offered her a choice of three different job assignments, all
were in the instructional aide classification. The job she selected was working as an
in the Emotionally Disabled program at the high school. This change, wherein Burris moved
the non-instructional aide classification to the instructional aide classification, occurred
For the last two years, Burris primarily worked out of Mr. Waldvogel's classroom
students who were emotionally disabled. She assisted Waldvogel in instructing students in
subjects. She helped students with their homework, attended classes with them, showed
to do things, kept them in line, called parents, talked with their teachers and sometimes made
games to teach them different learning strategies. The number of students that she worked
varied. Sometimes it was as many as six students while sometimes it was just one.
she worked with two students at a time.
While Burris was performing the duties just listed, ED aide Mary Reyes worked
with one student, Jeremiah, as part of the Emotionally Disabled program. While Jeremiah's
Individual Education Program (IEP) document says, in pertinent part, that he "would do well
a one-on-one aide", the District's Pupil Services Director, Dave Cullen, testified that
pretty independent compared to a lot of these other kids." Jeremiah does not have special
needs. When Jeremiah was absent from school, Reyes typically did not report to work. The
school staff register referred to Reyes as a "one-on-one aide." Additionally, Reyes' e-mail
also referred to her as a "one-on-one aide".
In October, 2002, there were three ED aides at the High School: Linda Burris, Mary
and Mary Sutter. As was noted earlier, Burris primarily worked with several ED students
Reyes worked exclusively with one student, Jeremiah. The record does not indicate who
That month, Reyes posted for, and was awarded, an instructional aide position at an
After Reyes left the high school, the high school principal, Chris Ligocki, reassigned
aide duties that Reyes had performed to another ED aide at the high school. Specifically, he
those duties to Burris. As previously noted, Reyes worked exclusively with one student
so Ligocki assigned Burris to do that work. Ligocki testified that in taking this action (i.e.
Burris to perform the duties previously performed by Reyes) he reviewed the District's
considered the job duties which needed to be performed, considered the personnel he had
to perform that work and made a decision that he thought was in the District's best interest.
Burris has been working one-on-one with Jeremiah since October, 2002. Every
before school starts, she takes Jeremiah down to the boys' locker room so he can take a
During the day, she accompanies him to his classes. In the spring of 2003, she took him off
afternoons a week to a job where he was working to learn job skills through the JET
Jeremiah is absent from school, she is assigned to do other work.
None of the work duties just listed is beyond the scope of the job description for an
instructional aide or not generally performed by an ED aide.
When Burris started working with Jeremiah, she was not given any medical training
other preparation for working with him. The District did not change Burris' work hours or
pay after she started working with Jeremiah.
After Burris started working with Jeremiah, the District posted a vacancy for an
aide for the ED program at the high school. After the posting was made, Burris expressed
in applying for it because she considered the posted position to be her old job.
Burris and Principal Ligocki then met and discussed her interest in the posting.
meeting, each became agitated with the other. Burris told Ligocki that she wasn't cut out for
working with Jeremiah, that she couldn't handle it, and that she wanted to go back to her old
Ligocki told Burris that she couldn't do that, and that if she couldn't handle it (i.e. working
Jeremiah), then she would have to quit.
No one in the bargaining unit posted for the vacancy, so the District hired someone
outside. The person who was hired, Anthony Wilbur, was a short-term employee. After he
District posted again for an instructional aide for the ED program at the high school. Once
after the posting was made, Burris expressed an interest in applying for it because she
posted position to be her former position. Once again, Ligocki did not allow Burris to post
The Association grieved the District's actions involving Burris. The grievance
the District violated the collective bargaining agreement when it "transferred" Burris from
position as an ED aide into a "one-on-one aide" position and then denied her the right to post
former position. The requested remedy was that Burris be "reinstated" to her "posted
District denied the grievance. The grievance was processed through the contractual
procedure and was ultimately appealed to arbitration.
POSITIONS OF THE PARTIES
The Association's position is that the District violated the collective bargaining
when it involuntarily transferred Burris from an instructional aide position working with
students to an instructional aide position working exclusively with one student. It elaborates
contention as follows.
The Association acknowledges at the outset that the management rights clause gives
District the right to transfer employees between positions and manage the operations of the
However, the Association asserts that clause does not give the District the unfettered right to
job duties to positions and transfer employees as it pleases. According to the Association,
District's management right to assign job duties to positions and transfer employees between
positions is restricted by another contract provision, namely Article XII (the job posting
The Association's view of Article XII follows. That article requires the District to
vacancies it intends to fill. The posting, in turn, has to identify the type of work, location of
hours of work and classification. All bargaining unit employees are eligible to apply for the
The Association submits that this means the District cannot restrict which employees may
a posting. Finally, it notes that the language says that the vacancy is to be filled with "the
qualified applicant." If a senior bargaining unit employee meets the qualifications for the
then he/she gets the job and the District cannot transfer a less senior employee into the
bring in a new hire. The Association believes that if the District is allowed to move an
has posted for one position within a classification to another position within the same
this will render the job posting provision meaningless.
The Association argues that the District's conduct herein violated the job posting
in three different ways. First, the Association avers that when there were no internal
Reyes' position working with Jeremiah, the District involuntarily transferred Burris into that
This contention is obviously premised on the notion that Reyes' position was first posted and
after no interested employees came forward, Burris was transferred into Reyes' old position
assigned her old duties.
Second, the Association contends that this involuntary transfer required Burris to
different type of work afterwards than she had done previously. According to the
type of work Burris performed changed; she went from being an ED program aide to being a
one-on-one aide. This contention is based on the premise that Reyes was a one-on-one aide.
To support that
premise, the Association relies on the following points: 1) that Reyes worked exclusively
student (Jeremiah); 2) that an internal District memo referred to Reyes as a one-on-one aide;
Reyes' District e-mail signature referred to her as a one-on-one aide; and 4) Ligocki's
Reyes was performing the work of a one-on-one aide. Building on the premise that Reyes
was a one-on-one aide, the Association believes it is self-evident that Burris is now a
one-on-one aide too
because she is now doing the same work as Reyes did - working exclusively with Jeremiah.
Association maintains that this designation (i.e. that Burris is now a one-on-one aide) proves
type of work changed after she took over Reyes' duties and should have been posted.
Third, the Association argues that the District violated the job posting article when it
to let Burris post into the posted ED aide position. What the Association is referring to is
Burris learned of the ED aide posting, she told Principal Ligocki that she was interested in
out of working with Jeremiah and going back to her old duties, but that he (Ligocki) would
her post for the vacancy. The Association asserts that Ligocki had no right to do that (i.e.
Burris her contractual right to post for that vacancy). The Association contends that by
the right to post for the vacancy, Ligocki acted in an arbitrary, capricious, malicious and
unprofessional manner. The Association claims that if Burris had been allowed to post into
ED aide position, she would have gotten it because she would have been the senior qualified
Next, the Association disputes the District's contention that Sec. 10.03
position. According to the Association, the phrase " current assignments", which the District
on, simply means that employees are placed in one or more of the five listed classifications
the position(s) they held at the time not positions they may have held in the past.
Aside from that,
the Association relies on the general arbitral principle that general contract language is
more specific language. Applying that principle here, the Association asserts that the broad
seniority, like management rights, is modified by the more specific job posting language.
Next, the Association disputes the District's contention that there is a past practice of
involuntarily transferring employees between positions within a classification. First, as the
Association sees it, just two instances were cited to support the existence of a practice (i.e.
transfer of a hallway monitor to a door monitor and the transfer of two computer aides).
Association avers that two instances are not sufficient to establish a practice. Second, aside
that, the Association submits those two instances are factually distinguishable from what
here. Third, responding to the fact that it did not grieve these past instances where
individuals were transferred within their classification, the Association asserts that it
did not waive
its right to grieve the issue herein. It cites Elkouri for the proposition that acquiescence with
to past violations of a contract provision does not prohibit enforcement of that provision in
Finally, in response to the District's bargaining history argument, it is the
that the bargaining history is simply not relevant in this particular case. According to the
the meaning of Article XII is clear and unambiguous, so there is no need for the arbitrator to
the parties' bargaining history in interpreting same.
The Association therefore asks the arbitrator to sustain the grievance. As a remedy,
Association asks that Burris be reinstated to her former ED aide position.
The District's position is that its conduct herein did not violate the collective
agreement. It elaborates on this contention as follows.
The District sees this as an assignment of duties case. As a result, it avers that the
provision applicable here is the management rights clause (Article 3.01). According to the
that clause gives it the right to assign job duties to employees and assign employees in
within the district. Applying that language to the instant facts, the District asserts that the
management rights clause gave the high school principal the authority to assign Burris the
previously performed by Reyes. The District submits that when the principal made that
decision, he did not do so for arbitrary or capricious reasons. To support that premise, it
testimony that he considered how and by whom the District's operations were to be carried
assigned personnel to conduct those operations. The District knows that Burris wants out of
assignment she has been given (i.e. working with Jeremiah). However, as the District sees
it, this case
should not be about whether the grievant likes her assignment or not; instead, it should be
ability of the District's management to address the needs of the District by assigning duties to
in the manner it deems best.
The District argues that there is no bargaining history evidence that shows that the
intended to water down the express thrust of the language of Section 3.01. In fact, as the
sees it, the bargaining history is to the contrary. To support that premise, it cites the
District negotiator Rader that the management rights clause was an important part of the
initial collective bargaining agreement. According to the District, it demanded, and got, a
reservation of management rights. The District maintains that this strong management rights
imposes a strong burden on the Association to show, via the contract language or practice,
management rights clause should be overridden in
this particular case. The District's position is that the Association did not produce such
language or practice.
The District asserts that another contract provision, namely Sec. 10.03, also supports
notion that management reserved to itself the right to assign duties within classifications. In
thereof, it cites the language contained therein which references "current assignments". As
District sees it, the reference to "current assignments" recognizes that assignments may vary
a classification. The District asserts that the bargaining history evidence supports that
To support that premise, it again cites the testimony of District negotiator Rader that when
negotiated the language that became Section 10.03, the Association never referenced
as limiting the District's right to assign duties within classifications. Applying that
the District avers that there was no change in classification for Burris. According to the
Burris was an instructional aide both before she was assigned to work with Jeremiah and
was assigned to work with him. The District argues that since there was no promotion or
into a new classification, there is no contract provision which limits the District's reserved
to assign duties or positions within classifications.
The District also avers that the conclusion just noted (i.e. that the contract leaves to
management the right to assign duties within classifications), is supported by a past practice.
According to the District, the practice is that management has reassigned positions within
classifications on many occasions. To support that premise, it relies on Ligocki's testimony
1) reassigned a library aide; 2) reassigned the hall monitor to be a door monitor; 3)
reassigned a non-instructional aide to be a suspension room supervisor; 4) shifted job duties
between secretaries; and
5) switched two lab aides. The District asserts that all these reassignments occurred without
posting. Building on that premise, the District submits it did not need to post the
involved here either.
Next, the District responds as follows to the Association's contention that
Article XII applies
herein. First, it contends that Article XII only requires the posting of vacancies when they
The District avers it complied with that contract requirement because the "vacancy" in this
was, in fact, posted. By that, what the District is referring to is the fact that it posted for an
instructional aide in the high school after Reyes transferred out of the high school. It calls
to the fact that the posting included the "type of work" involved (i.e. the ED program).
District argues that Article XII neither addresses nor prohibits the assignment of duties or the
of duties. That being so, it is the District's position that Article XII does not modify the
management has been given to assign duties within classifications. Third, it contends that the
Association distorted the evidence concerning the posting of the vacancy created when Reyes
What the District is referring to is this: in their brief, the Association asserts that the
Reyes' position first, and then transferred Burris into it after no one bid for it. The District
that is factually incorrect.
The District maintains that what really happened was just the opposite, namely that
first reassigned the duties Reyes had been performing to Burris, and then Ligocki posted the
for an instructional aide at the high school.
The District maintains that the parties' bargaining history also demonstrates that
requirement that a posting is to contain the "type of work" was not intended to require the
to post particular duties within classifications. To support that premise, it again cites the
of District negotiator Rader. According to the District, his testimony establishes that when
negotiated the language that ultimately became Article XII, they did not intend it to require
of specific job duties or inhibit management's right to assign duties. Building on that
District maintains that any notion that a specific vacancy specific to job duties must be posted
contrary to the bargaining history and the Association's position in bargaining.
Next, the District responds to the Association's argument that the "type of work"
performed by Burris has changed. The District disputes that assertion. The District
that Burris now primarily works with one student (Jeremiah), while she previously normally
with two students at a time. As the District sees it, that does not seem like a significant
Aside from that, the District emphasizes that no evidence was offered that Burris is now
work outside her classification as an instructional aide. Said another way, the duties she is
performing are within the scope of those normally performed by ED aides. Finally, the
maintains that there is a difference between working with a student one-on-one as a job duty
expectations of a one-on-one instructional aide as a type of work under the contract.
The District also disputes the Association's assertion that Burris is now a "one-on-one
The District contends that Burris is not a one-on-one aide for the following reasons: 1)
no special needs requiring a one-on-one aide; 2) Burris received no special training as is the
procedure for one-on-one aides; 3) Burris has not been treated as a one-on-one aide under the
contract; 4) Burris is not sent home if Jeremiah is not in school; 5) Reyes transferred from
duties during the school year without special agreement; and 6) Burris is not performing any
not in her job description.
The District therefore asks that the grievance be denied. The District notes that
arbitrator find otherwise, and allow the grievant to post into the vacancy in the ED program
high school and take back the specific duties that she used to perform, there is no express
language that would prohibit the District from immediately reassigning her back to the duties
It is noted at the outset that the parties have approached this contract interpretation
different perspectives. The District sees this as an assignment of duties case which is
the management rights clause. In contrast, the Association sees this as a posting case which
governed by the job posting provision. Their differing views of the case explain why the
unable to stipulate to an issue and left it to the arbitrator to decide. Based on the rationale
follows, I find that the job posting provision does not address what happened when Principal
assigned Burris to perform the work previously performed by Reyes (namely, working with
Jeremiah), so the management rights clause controls not the job posting provision.
I begin with a description of how this discussion is structured. The discussion is
divided into two parts. In the first part, I address the contract language and the evidence
thereto. Specifically, I will address Sec. 10.03, Article III and Article XII, the parties'
history and an alleged past practice. In the second part of the discussion, I address the
contention that the District's conduct herein violated the job posting language in several
My discussion on the contract language begins with a look at Sec. 10.03. I decided
that provision first because it gives some context to a word that will be used later in this
The word is classification. Section 10.03 identifies the various classifications that bargaining
employees are placed in. Subsection b specifies that there are two classifications for the
instructional aides and non-instructional aides. There are numerous types of instructional
name a few, there are library aides, ED aides and one-on-one aides. These different types of
instructional aides do not have their own classifications though. As a result, there is no
for library aides, or for ED aides, or for one-on-one aides. Instead, they are all officially
part of the
instructional aide classification. To prove this point, one need look no further than the
description. All the different types of instructional aides share the same job description,
instructional aide job description. Thus, there is not one job description for library aides,
ED aides, etc.
The focus now turns to Article III, the management rights clause. Section 3.01
reserves to management the overall authority to direct the operation of the school system.
3 gives management the right to transfer and assign employees in positions within the school
for the purpose of operating the system. Paragraph 11 reserves to management the authority
determine how and by whom these operations are to be conducted. The first sentence of
says that the District's right to exercise these functions are not to be limited "except to the
extent such functions are restricted by the express terms of this Agreement." The phrases
extent" and "restricted by the
express terms of this Agreement" make it clear that the reserved management rights
are to be
protected unless they are specifically and clearly restricted by terms expressed in the
question in this case is whether there is another contract provision that either limits or
management's right to transfer and assign employees in positions. The Association argues
is while the District disputes that contention.
The Association contends that Article XII, the job posting provision, limits
right to assign duties. The problem with this contention is that the job posting provision does
address, much less modify, the assignment of duties within classifications. What it
requires, is that vacant positions be posted when the District decides to fill them. After
bid on the posting, the vacancy is filled with "the most senior qualified internal applicant."
District determines the qualifications of those posting for the vacancy. Nothing in Article
restricts or prohibits management from assigning duties within classifications. Additionally,
nothing in Article XII that requires a vacancy to exist before the District can adjust
work assignments within a classification. Finally, there is nothing in Article XII that
the job duties performed by an individual vacating a position must be posted or that specific
must be posted. While these statements were limited to just Article XII, a review of the
bargaining agreement reveals they also apply to the agreement as a whole. Given the
is concluded that neither the job posting provision nor any other provision in the agreement
management's right to assign duties within classifications.
This interpretation of the contract (i.e. that the contract leaves to management the
assign duties within classifications) is supported by the parties' bargaining history. What I
referring to is this: First, District negotiator Rader, who negotiated the parties' initial
bargaining agreement, testified without contradiction that when the language was negotiated
ultimately became Sec. 10.03 of the collective bargaining agreement, the Association never
District that the language proposed by the Association limited the District's ability to assign
within classifications. Second, Rader's testimony also established that when the parties
and agreed on the job posting language found in Article XII, the Association never proposed,
District never agreed, that Article XII's requirement that a posting contain the "type of
required the District to post particular duties within classifications. When this testimony is
collectively, it establishes that the notion that specific job duties must be posted is contrary to
parties' bargaining history.
This interpretation of the contract (i.e. that the contract leaves to management the
assign duties within classifications) is also consistent with the way it has been applied in the
following shows this. First, the record indicates that the District has changed or shifted duty
assignments within classifications on several occasions. While the Association asserts it has
just twice, the record indicates it has happened more than that. Specifically, there are five
noted in the testimony: 1) computer lab aide assignments
were switched; 2) a library aide was reassigned to do computer work; 3) a hall monitor
reassigned to door security; 4) job duties have been shifted between secretaries; and 5) a
non-instructional aide was reassigned to an in-school suspension room supervisor. At a
instances show that management has previously changed duty assignments within
Second, none of the changed duty assignments just noted were posted or grieved. Third,
the record shows, job duties have not been posted in the past, or been guaranteed through the
process. For example, there are no job postings in the record that included specific job
The focus now shifts to the Association's contention that the District's conduct
job posting language in the following ways.
First, the Association contends that when there were no internal applicants for Reyes'
working with Jeremiah, the District involuntarily transferred Burris into that position. This
is premised, of course, on the notion that Reyes' position was posted first, and then, after no
applied for it, Burris was transferred into Reyes' old position and was assigned her old
problem with this contention is that it is not factually accurate. Here's why. Burris' own
indicates that immediately after Reyes left the high school, Ligocki assigned her (Burris) to
Jeremiah; then later, the District posted a vacancy for an instructional aide. This testimony,
as a review of the grievance itself, establishes that Burris was assigned to work with
the posting went up.
Second, the Association argues that the job posting provision required a posting in
As was just noted, a posting was made. What was posted, of course, was a vacant
position. That is what the District obligated itself to post in Article XII (i.e. vacant
was noted earlier in this discussion, Article XII does not require the District to post work
or specific job duties. The posting which was made here complied with all the requirements
XII. Specifically, it included the "type of work" involved (namely, working in the ED
program at the
high school). The question of whether Burris could post for that vacancy will be dealt with
Third, the Association contends that Burris' type of work changed after she was
work with Jeremiah. As the Association sees it, Burris went from being an ED aide to being
a one-on-one aide. In addressing this contention, I have decided to emphasize at the outset
that neither ED
aides nor one-on-one aides are classifications. As was noted in my discussion of Sec. 10.03,
classification involved here is instructional aide. ED aides and one-on-one aides are simply
within the instructional aide classification. Said another way, they are simply two types of
within the instructional aide classification. In this case, there is no question that Burris'
has not changed. By that, I mean that she was an instructional aide before she started
Jeremiah and she remains an instructional aide. She is still covered by the instructional aide
description and is part of
that classification. Insofar as the record shows, she is not performing any job duties
that are outside
the instructional aide job description.
That said, the focus now shifts to the Association's contention that Burris' type of
changed from an ED aide to a one-on-one aide. The Association's contention is based on the
that Reyes was a one-on-one aide when she worked with Jeremiah. Building on that
Association argues that if Reyes was a one-on-one aide, then Burris must be too because she
is now doing the same work Reyes did (i.e. working exclusively with Jeremiah).
While the District disputes the notion that Reyes was a one-on-one aide, there
evidence in the record that supports the conclusion that she was a one-on-one aide.
am referring to the following evidence: 1) that Reyes worked exclusively with one student
2) that an internal District memo referred to Reyes as a one-on-one aide; 3) that Reyes'
District e-mail signature referred to her as a one-on-one aide; and 4) that during his
testimony, Ligocki at one
point said that Reyes did one-on-one work.
However, even if Reyes was a one-on-one aide, it does not automatically follow that
was too. Here's why. The record indicates that in this district, an instructional aide who
primarily with one student is not automatically a one-on-one aide; it depends on whether the
received special training. As was noted in the
BACKGROUND section, one-on-one aides receive
special training to work with students who are medically fragile. While it is unclear from
if Reyes received this special training, it is crystal clear that Burris has not. The reason
Burris has not
received this special training is because the District does not consider Jeremiah to be
That is the District's call to make. Since Burris has not received this special training, this
she is not a one-on-one aide as that term is used in Sec. 12.06. In so finding, I am well
this conclusion seems incongruent with the facts, since Burris now works exclusively with
one-on-one. However, there is a distinction between providing one-on-one service as a job
being a one-on-one aide as a type of work. In this district, the former does not require
training while the latter does. As was just noted, Burris does not have that special training,
is not a one-on-one aide as that term is used in Sec. 12.06. Instead, she remains what
she was prior
to working with Jeremiah an ED aide. That being so, her type of work has not
Finally, the Association argues that the District violated the job posting article when
to let Burris post for the posted position. What the Association is referring to is this: after
learned of the posting, she told Principal Ligocki that she was interested in getting out of
with Jeremiah and going back to her old duties, but that he (Ligocki) would not let her post
vacancy. The Association asserts that Ligocki had no right to do that (i.e. deny Burris her
right to post for that vacancy). Legally speaking, the Association
is correct. Management officials are not supposed to preclude employees from
exercising their legal
rights. However, in this case, I am not enforcing Wisconsin's public sector labor law.
Instead, I am
interpreting and enforcing the parties' collective bargaining agreement. Contractually
District could preclude Burris from posting in this particular instance for the following
vacancy was for an instructional aide working in the ED program at the high school, and
very same job Burris already held. The reason Burris wanted to post for the vacancy was
she viewed the posted job as her old job, and she wanted to go back to her old job duties. In
words, she wanted to use the posting as a way to select/change her job duties within her
However, under the contract, employees do not get to do that. Since the management rights
gives management the right to assign duties within a classification, it would have served no
in this particular instance to allow Burris to post for a job she already held. Consequently, it
that the District did not violate the job posting article when Ligocki refused to let Burris post
. . .
My summary of this case follows. The Association reads the job posting language to
the transfer or assignment of duties within classifications. However, the job posting
not explicitly or implicitly cover the transfer or assignment of job duties within
Instead, the management rights clause does. That clause explicitly gives management the
assign duties. In this case, the principal decided to take an experienced instructional aide
grievant) and assign her the duty of working with Jeremiah. There is no language in this
which limits the District's right to do that, so the District acted consistent with its reserved
management rights. In so finding, it is noted that the notion that specific job duties must be
is contrary to the parties' bargaining history. Additionally, the record indicates that
reassigned duties within classifications before. Finally, the District's actions herein did not
the job posting provision. Accordingly, no contract violation has been found.
In light of the above, it is my
That the District's actions involved herein did not violate the collective bargaining
Therefore, the grievance is denied.
Dated at Madison, Wisconsin, this 18th day of September, 2003.