BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
GREEN BAY EDUCATION ASSOCIATION
GREEN BAY AREA PUBLIC SCHOOL
Attorney Michele A. Peters, 700 West Michigan, Suite 500, P. O. Box
442, Milwaukee, Wisconsin 53201-0442, appearing for the Association.
Melli, Walker, Pease & Ruhly, S.C., by Attorney Jack D.
Walker, Ten East Doty, Suite 900, P. O. Box 1664, Madison, Wisconsin 53701-
1664, appearing for the District.
The Association and the District are parties to a collective bargaining agreement
in effect at all times relevant to this proceeding and which provides for final and binding
The parties selected Arbitrator Dennis P. McGilligan from a panel of staff arbitrators
them by the Wisconsin Employment Relations Commission ("Commission"). By letter dated
December 17, 2002, the Commission appointed Dennis P. McGilligan as Arbitrator to
dispute set forth below. Hearing on the matter was held on April 1, 2003, in Green Bay,
The hearing was transcribed, and the parties completed their briefing schedule by August 15,
To maximize the ability of the parties we serve to utilize the Internet and
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
After considering the entire record, I issue the following decision and Award.
The parties stipulated to the following issue:
Did the School District violate Article IX, Section D 1 when it
awarded a physical education
teaching position at West High School to an applicant with less seniority than the Grievant?
The parties disagreed on how the remedy portion of the issue should be framed. The
Association framed the issue as follows:
If so, what is the appropriate remedy?
The District framed the issue in the following manner:
If a finding is made that the District violated the contract, the
remedy should be a declaration of
the District's duty.
The Arbitrator adopts the Association's framing of the remedy portion of the issue.
Robert Gaulke ("Grievant") began as a full-time teacher with the Green Bay Area
School District ("District") in November 1993. Prior to his full-time employment, the
a substitute teacher for the District for approximately one year. The Grievant's full-time
in chronological order within the District are as follows:
Almost one year as an alternative
education instructor at the Broadway Central Office;
Three years as a
special education teacher at Washington Middle School;
Two years as a
special education, emotionally disturbed teacher at Green Bay East High
Three years as a
physical education, health and adaptive physical education teacher at
Green Bay West High School ("West"); and
One year as a physical education, health
and adaptive physical education teacher at Preble
In addition to his teaching, the Grievant has performed co-curricular duties for the
He has coached football, basketball and track. He was the boys head basketball coach at
Nate Rykal ("Rhkal") began teaching in the District in 1999 as a physical education
at Washington Middle School. At the time of the dispute, Rykal had three years experience
District teaching physical education at Washington Middle School. He also had three years
coaching experience in the District as an assistant coach in baseball and basketball.
Daniel Nerad ("Nerad") is the superintendent for the District. John Wilson
assistant to the superintendent for human resources. David Neubauer ("Neubauer") is the
at West. Steve Brossard ("Brossard") is the athletic director and a business education teacher
Richard Feldhausen ("Feldhausen") is the executive director of the Green Bay
Facts Giving Rise to the Instant Dispute
On March 20, 2002, Neubauer and Brossard informed the Grievant that he would not
renewed as boys head basketball coach at West. The Grievant asked why and was told that
lost the support of parents and players. He was also told that they were informing him "on
because the arena staffing meeting was that night in case" the Grievant wanted to go to it. 1/
1/ Arena staffing is a process where the
teaching vacancies existing for the next fall as of the date of the arena staffing event are all
all employees line up (literally) in unit-wide seniority order, and the procedure starts when
"the first person in seniority has their stab at whatever
job they're interested in."
The Grievant attended the March 20 arena staffing meeting. He bid on the
position at Preble High School and was granted it. The Grievant's former physical education
at West was then open for bidding. Amy Phillips signed up for and was awarded the
education position at West. The Grievant had called Phillips following school on March 20
informed her that he might bid out of West at arena staffing.
Rykal also attended the March 20 arena staffing meeting. He attended the meeting at
suggestion of Neubauer who advised him that a teaching opportunity might open up at West
the Grievant had lost the coaching position. Rykal left the arena staffing meeting early
Phillips, who had more seniority, took the position at West.
While at arena staffing, Rykal had a conversation with the Grievant. In that
Grievant advised Rykal that the West position might not be right for Rykal since "he was
a job at East High School." The Grievant also told Rykal that "they'll screw me over the
screwed him over." The Grievant added that "he would make it hell for whoever they
there, referring to the basketball job."
Rykal was offered the position to coach basketball at West the following week. He
offered the position while he was employed at Washington Middle School. He accepted this
at the end of March 2002.
Phillips left the District on or about June 4, 2002. On June 6, 2002, the District
bulletin entitled "Teaching Vacancies for the 2002-03 School Year" that contained position
354. Position number 354 was posted as follows: "Physical Education and Health
at West (2
sections of Physical Education 10/11; 1.5 sections of Physical Education 9; and 1.5 sections
at West)." (Emphasis in the original). Both the Grievant and Rykal signed up for the
Neubauer met with Wilson, they looked at the personnel files, and concluded the two
applicants "were both equal," and "I needed a basketball coach and so I went after Nate
Rykal as a
basketball coach, yes." They found no substantial difference in physical education
since the Grievant had just been terminated from the basketball position, Rykal stood out as
The District awarded position number 354 to Rykal.
On July 12, 2002, the District provided the Grievant a written denial to his request to
to West. After receipt of the denial, the Grievant met with Feldhausen; and filed a grievance
the District. The grievance claimed that the District "granted the transfer to a less senior
Nate Rykal (Seniority Date: 8/27/99) in violation of Article IX of the collective bargaining
agreement." For a remedy, the grievance requested that a "voluntary transfer to Position
granted to the most senior candidate, Bob Gaulke, for the 2002-2003 school year."
Coach/Teacher in the Building
West is a very diversified school with many low income students. The District wants
in these high poverty schools to also teach in the building where they coach. In this
can serve as role models; work on academic problems with teachers involving student
build school spirit; serve as a parent contact and facilitate contact with college recruiters.
who are not teachers in the building where they coach are not immediately available when
perform these functions.
The District Athletic Handbook "Philosophy Statement for
The Green Bay Public School District believes co-curricular
activities are an integral part of the
total educational process. Through participation in these opportunities, students can have
and training in events not ordinarily obtainable in the general curriculum. Policies have been
developed and are implemented to cultivate the high ideals of good citizenship, community
involvement and personal growth. The school district considers involvement in co-curricular
activities a privilege. Student participation carries with it certain responsibilities and
which promote growth toward becoming a responsible member of society. We expect
be a credit to themselves, their family, school, and community.
The "Objectives" include this guideline:
Involve teachers and community members
as coaches and advisors
They also include these "Objectives for student participants":
. . .
2. To develop an understanding of the rules of each
activity and learn to participate within these
rules in accordance with the Green Bay Public Schools' policies and procedures in regards
to discipline, attendance, academic expectations, Alcohol and Other Drug Abuse and violence
. . .
5. To provide an
opportunity to learn respect and fellowship.
6. To develop pride, school
spirit, a good attitude, and exhibit good sportsmanship.
Coaches' responsibilities are detailed in a job description. It states the head coach
the inventory of equipment, enforce all Board policies, supervise the conduct of participants,
coordinate and schedule all activities with the supervisor, enforce all eligibility rules, review
detention record of each player and make sure all players are academically eligible. In sum,
coach must make sure his athletes can stay in the game, and succeed outside the boundaries
On July 3, 1995, Arbitrator Stanley H. Michelstetter II issued an Interim Arbitration
(Schleis case) wherein he found that the District violated Article IX, Section
D, when it selected a
junior employee to fill a vacant teacher position. In reaching this conclusion, Arbitrator
reasoned that it was the District's responsibility under this contract provision "to produce
evidence specifically explaining why its extra-curricular requirements dictate that it accept a
senior person's voluntary transfer request." The District therein opined "that it was to the
of West High School both academically and co-curricularly to have the head boys basketball
at the school full-time." However, Arbitrator Michelstetter found that while this may have
"it could also be mere pre-text. Other evidence indicates that there have been occasional
which the head basketball coach has not been a teacher at West." Arbitrator Michelstetter
However, assuming for the sake of argument that the Employer
did need to have the head
basketball coach present at West as a regular teacher, then why would the Employer have
Mr. Anderson to be the head boys' basketball coach last year when he was not regularly
West, rather than having selected a teacher who was already a teacher at West. Based upon
record as a whole, I don't believe that the reasons the Employer has offered for its choice of
junior person are its real reasons for this transfer. Accordingly, the Employer has violated
by selecting Mr. Anderson.
Neither the District nor the Association has proposed to
the voluntary transfer
language in bargaining since the Michelstetter award.
ASSIGNMENT, TRANSFER, REASSIGNMENT
. . .
1. In acting upon
requests for voluntary reassignment and/or transfer, the following
qualification criteria will be applied:
b. Instructional and
co-curricular requirements; and
c. Staff availability and
Where the foregoing factors are
substantially equal, the preference in assignment or
transfer shall be given to the applicant with the greatest number of years of continuous
service in the District.
. . .
POSITIONS OF THE PARTIES
The Association basically argues that the Grievant should have been awarded position
354 based upon an assessment of the factors under Article IX, Section D 1.
The Association next argues that the District's reliance on the "co-curricular
is a pretext for avoiding the seniority provision.
The Association also argues that this case is analogous to the Schleis
case and warrants the
same outcome in favor of the senior applicant for the position.
For a remedy, the Association requests that the Grievant be awarded position number
West or provided the option to transfer to the position at the end of the academic term.
The District first argues that the contract language on its face permits the District to
judgment it made in this case to award the posted position to the employee who met the
The District also argues that its application of the disputed contract language herein
consistent with the construction of the contract made be Arbitrator Michelstetter in the
In addition, the District states that unlike Schlies there is no showing of a
pretext in the instant case.
The District requests that the grievance be dismissed. If a finding is made that the
violated the contract, the District believes that the remedy should be a declaration of the
duty. The District states that the Grievant should not be awarded the posted position at West
he bid out of the position and because he lacks the "clean hands" necessary for an equitable
At issue is whether the District violated Article IX, Section D 1 when it awarded
number 354 to an applicant (Rykal) with less seniority than the Grievant.
The Association argues that there is such a violation. The District disagrees.
Article IX, Section D 1 states that the following criteria will be applied in filling the
a. Individual qualifications;
b. Instructional and
co-curricular requirements; and
c. Staff availability and
"Where the foregoing factors are substantially equal," seniority preference is given.
There are two questions to be analyzed: Were the factors under Article IX, Section D
substantially equal for the Grievant and Rykal? If so, did the Grievant or Rykal have greater
of continuous service in the District?
In support of its argument that the Grievant should have been awarded the position
upon the above contractual factors, the Association first maintains that the Grievant
only substantially equal qualifications but has superior qualifications than Mr. Rykal."
On the face of it, the Arbitrator would agree. The posting for position number 354
a teacher of Physical Education and Health at West. Unlike Rykal, the Grievant had
the District teaching both physical education and health at the high school
level. (Emphasis added).
In addition, the Grievant had a more varied, broader-based teaching background with the
Rykal. However, Wilson testified that the District interprets the phrase "individual
to mean "certified or not." (Tr. p. 174). This practice is not unreasonable or arbitrary.
applicants were certified for the position. Therefore, the Arbitrator rejects this argument of
Likewise, there were no "substantial differences" in the area of staff availability and
experience. (Tr. pp. 113-114). Both applicants were available to transfer to position
Both applicants had three years experience teaching physical education. Based on this, the
found no substantial difference in their experience. (Tr. p. 114). There is no reason to
This leaves the instructional and co-curricular requirements.
The Association asserts that the Grievant met the instructional requirement for both
education and health while Rykal did not. For three years, the Grievant taught physical
health and adaptive physical education to high school students at West. (Tr. p. 12). Rkyal
any instructional experience in health. (Tr. p. 174). Nevertheless, both applicants could
instructional needs meaning that they were certified to teach physical education and health at
school level. Id. Therefore, the Arbitrator also rejects this argument of the
The District claims that "Rykal was found to be superior because of the requirements
co-curricular position." In particular, the District asserts "Rykal needed to be at the school
fulfill the co-curricular position he held, which best fulfills the overall mission of the
question is whether this satisfies the "co-curricular requirements" standard of Article IX,
In his Interim Arbitration Award, Arbitrator Michelstetter found that "co-curricular
requirements" were "a legitimate factor upon which the Employer might makes its judgment"
respect to employees' voluntary requests to transfer. Green Bay Area Public School District,
p. 6 (Michelstetter, 7/95). However, Arbitrator Michelstetter cautioned that while this factor
entitled to weight, the District's unilateral control over extra-curricular assignments would
substantial authority to undermine Article IX (D) if the mere fact that someone held an
extra-curricular position was automatic license to obtain any regular teaching
position. (Emphasis added).
Hence, the importance of the term "requirements." Id. Arbitrator Michelstetter
found that it was the
District's responsibility "to produce credible evidence specifically explaining why its
requirements dictate that it accept a less senior person's voluntary transfer
request." Id. (Emphasis
In his Order Denying Motion for Reconsideration of the Interim Arbitration Award,
Michelstetter explained this duty:
The crux of the issue is the difference in contract interpretation
specified in the award. The
award finds that the contract term "requirements" is substantive and that the Employer must
that its selection is based upon an extra-curricular "need" rather than its mere desire to have
appears to be a very desirable coach assigned to a teaching position at West High School.
award notes, the Employer had a desire to have Mr. Anderson become a full-time teacher at
sought to rationalize its choice in terms of the contract. This does not meet the contractual
If the Employer seeks to change this result, it needs to change the collective bargaining
not the terms of the arbitration award. (District Exhibit No. 12).
Likewise, there has been no such showing herein. The extra-curricular requirements
contrary to the District's assertion, dictate that the District accept Rykal's
voluntary transfer request.
(Emphasis added). Nor has the District shown that its selection of Rykal was based upon an
extra-curricular "need" rather than its strong desire to have the teacher fill the position who
coached boys basketball at the school.
The District's own witnesses support this conclusion. In this regard, the Arbitrator
the job posting did not require coaching at West as a condition for position
number 354. (Association
Exhibit No. 2, p. 2, Tr. p. 132). Wilson testified that the "District does not require any
have any co-curricular attached to it, I would agree with that." (Tr. p. 176).
The District argues, however, that if the "requirements" factor means that the
requirements must be attached to the teaching position this "would write the co-curricular
of clause "b" out of existence, because there never is a co-curricular requirement of an
position." The District points out that the teaching and co-curricular assignments are always
in the District.
The Arbitrator agrees that the co-curricular assignment doesn't have to be formally
to the teaching position in order to satisfy the co-curricular portion of Article IX, Section D
However, if the co-curricular requirements were attached to the teaching position, this should
the co-curricular requirements factor of clause "b." The District points out that job postings
instructional positions never contain a reference to coaching or other co-curricular activity
never mixed. The District did not, however, claim that this could not be done. As pointed
Arbitrator Michelstetter: "There may be situations in which the inter-relationship of the
extra-curricular position requires the person to be a teacher at the same school." Green Bay
School District, supra, p. 7.
Other District witnesses also support a conclusion that it is desirable, but not required
a coach in a school as a teacher. Brossard, the Athletic Director at West, testified:
Q In fact, it is not currently a requirement for a
sport to be offered that it be coached by a
teacher at West, is it?
. . .
A Is not a requirement, but it is desired.
Q It's something you would
prefer but not something you require, is that
a fair summary of your
A Yes. (Tr. p. 91)
Daniel Gage is the social studies teacher and girls basketball head coach at West.
(Tr. p. 63).
At the time he transferred from Southwest to West, he was not coaching at Southwest. (Tr.
When he transferred into West, there was no coaching requirement if he were to transfer.
The Association asserts that the "co-curricular requirement" was mere pretext for
junior applicant (Rykal). Arbitrator Michelstetter found that the evidence in his case
the Employer's reason for making the instant transfer is a pre-text for avoiding the seniority
of this agreement section." Green Bay Area Public School District, supra,
p. 7. In support
thereof, Arbitrator Michelstetter noted the successful junior applicant was selected as the
basketball coach at West before he started work there as a teacher. Id. In
addition, "there have been
occasional years in which the head basketball coach has not been a teacher at West." Those
factors are present in the instant case.
However, the District makes a very strong case for the desirability of having the head
basketball coach at West as a teacher. Daniel Sidel is a special education teacher and
football coach at West. (Tr. p. 55). He has experience coaching in the school in which he
and he has experience coaching in a school where he does not teach. (Tr. p. 56). The
former is better
because "I've been able to form a close relationship with the kids who are in the schools in
teach and coach." In the latter, the relationship is not quite as close. (Tr. p. 57). He also
problems by arriving "too late to see the teacher," and would be unable to address them on a
West does not have a successful athletic program, if measured by "wins and losses."
thinks they are "somewhat successful" in helping their athletes in school. (Tr.
West has "a very diverse student body" and many students "don't have the support
in place that would enable them to participate in extra-curricular activities, not just sports."
59). Money restricts West students, as do cultural differences, and literally physical
size. (Tr. p. 60). There is a high proportion of stressful home life. Id. West
needs every athlete it
can get, replacements are not waiting in the wings. Id. As a result, Sidel tries
"a little harder to keep
that kid eligible to play, find a way to help him play." (Tr. p. 61).
Other teachers, coaches and administrators at West also believe that it is better to
coaches, particularly head coaches, in the building in order to support the school mission.
68-75, 77-79, 84-87, 93-97, 112, 114-118).
Nerad has expertise in high poverty schools (like West), and wrote a doctoral
the subject. (Tr. pp. 137-140). He finalized the decision to select Rykal, based upon the
of his research, including his view that strong staff relationships come not only from support
classroom functions of teachers, but also from support of the co-curricular programs. (Tr.
pp. 142-145). Where students are able to build a relationship with staff members there will
be a positive
impact on learning. (Tr. p. 142). Coaching is much more "than the time in the gym, being
more than the X's and O's on the court but really serving as a key advisor to keep these kids
and keep them on the correct path." (Tr. p. 144). Nerad felt that having the coach in the
as a teacher was the "best" way to "support those young people in pursuit of their learning
The District has a genuine desire/interest in having coaches in the building as
would like to obtain this result in hiring situations like West where possible. Therefore, the
finds that the "co-curricular" consideration is not a pretext in the instant case. However, this
desire/interest in having coaches in the building fails to rise to the level of "requirement"
the haphazard, uneven manner in which the District has gone about trying to implement this
philosophy, not only at West but also at other schools in the District. Many head coaches
teachers in the building where they coach. (Association Exhibit No. 9). The District has no
policy or directive from the superintendent or the Board emphasizing the importance of this
commitment to having coaches in the building when filling teacher positions. It has set no
goals to achieve this result. The District's own treatment of Rykal at West (it hired him as
before he had a teaching job) raises a serious question as to the relative importance it
attaches to this
goal. The District does not have to demonstrate that it always attains this result. However,
District must demonstrate that it makes a systematic, sustained effort toward achieving this
instead of using the "co-curricular requirements" only when convenient.
There are no co-curricular requirements in the instant case. Individual qualifications,
instruction requirements, staff availability and experience are all substantially equal.
Seniority is the
tie breaker under Article IX, Section (D) and on that basis the Grievant should have been
The District argues, contrary to the above, that it is permitted a substantial degree of
discretion in the voluntary transfer clause. The District believes that it exercised this
properly herein because Rykal needed to be at the school to best fulfill the co-curricular
held and the overall mission of the school.
The Arbitrator agrees with the District that seniority is not as important a
making voluntary transfers as it is when there is an involuntary transfer or layoff. It is also
the voluntary transfer clause gives the District a great deal of discretion when filling
evidenced by its application of the various criteria under Article IX, Section D 1 in
However, the District has not established a "requirement" that the disputed position be filled
boys head basketball coach. Therefore, the Arbitrator rejects this argument of the District.
The District states that it does not agree with Arbitrator Michelstetter's analysis of
"requirements" in his Interim Arbitration Award. However, the District filed a motion for
reconsideration of the Interim Arbitration Award that was denied by Arbitrator Michelstetter.
(District Exhibit No. 12). There is no evidence that the District ever sought to vacate or to
Arbitrator Michelstetter's decision based on Secs. 788.10 or 788.11 Stats. Nor has the
sought to change the language of Article IX, Section D in collective bargaining at any time
herein. (Tr, p. 153). The District cannot use the grievance arbitration process to achieve
that it did not obtain (much less seek) at the bargaining table.
Contrary to the District's assertion, its application of the disputed contract language
is not consistent with the construction of the contract made by Arbitrator Michelstetter in the
case. Having applied the standards articulated in Arbitrator Michelstetter's Award
to the facts of this
case, the Arbitrator finds that the answer to the issue stipulated to by the parties is YES, the
District violated Article IX, Section D 1 when it awarded a physical education teaching
West High School to an applicant with less seniority than the Grievant.
A question remains as to the appropriate remedy.
The District argues that if there is a finding of violation, the appropriate remedy is a
declaration of violation and an order not to violate the clause in that manner in the future.
District believes that the remedy should not include assigning the Grievant to West because
out of the position and because he lacks the "clean hands" necessary for an equitable remedy.
It is true that the Grievant immediately bid out of the position after losing his
Nevertheless, there is no contractual restriction on his application to return to the position.
Therefore, the Arbitrator rejects this contention.
The Arbitrator shares the District's concern about the Grievant's comments
undermine the basketball program. However, they were made in the "heat of the moment"
losing his coaching job. There is no evidence that he feels the same way today. Contrary to
District's assertion, the fact he filed a grievance to enforce his contractual rights is not
improper motivation or pretext. If he ultimately takes the teaching position, and uses that
to undermine the West program then he would be subject to the disciplinary procedure.
the Arbitrator also rejects this argument of the District.
For a remedy, the Association requests that the Grievant be assigned to position
at West. The Association opines that this remedy would "return the parties to the position
would have been but for the District's breach of the contract." However, considering the
education, the Association believes this translates to an order that the transition occur at the
an academic term and that the Grievant be permitted to transfer or not.
In formulating a remedy, the Arbitrator will apply the following standard articulated
In form the remedy should be one that would appear to most
directly effectuate the intent and
purposes of that provision in the labor agreement in connection with which the right was
Elkouri and Elkouri, How Arbitration Works, 5th Edition, p.
394 (1997), citing comments by
arbitrator Ryder in Proceedings of the 16th Annual Meeting of NAA, 68-69
(BNA Books, 1963).
Here, it is undisputed that where the candidates for a voluntary transfer are assessed
substantially equal, the parties agreed to seniority as the mechanism to award the position.
remedy that would most effectuate the intent and purposes of Article IX, Section D 1 is to
applicant with the most seniority the teaching position. Since the Grievant has greater
should be awarded the position.
Based on all of the above and the record as a whole, it is my
The grievance is sustained and the District is ordered to: (1) offer position number
(Physical Education and Health at West) to the Grievant at the end of the 2003-04 school
(2) give the Grievant the option to accept or to decline said position at that time.
The Arbitrator will retain jurisdiction over the application of the remedy portion of
for at least sixty (60) days to address any issues over remedy that the parties are unable to
Dated at Madison, Wisconsin, this 20th day of October, 2003.