BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
WCEA, AFFILIATED WITH THE
NEA AND WEAC
THE BOARD OF EDUCATION OF
BOYCEVILLE COMMUNITY SCHOOL
Mr. Steven Holzhausen, Executive Director,
West Central Education Association, 105 21st Street
North, Menomonie, Wisconsin 54751, appearing on behalf of WCEA, affiliated with the
WEAC, referred to below as the Association.
Mr. Christopher R. Bloom, Weld, Riley, Prenn & Ricci,
S.C., Attorneys at Law, 3624 Oakwood
Hills Parkway, P.O. Box 1030, Eau Claire, Wisconsin 54702-1030, appearing on behalf of
of Education of Boyceville Community School District, Boyceville, Wisconsin, referred to
the Board or as the District.
The Association and the Board are parties to a collective bargaining agreement which
effect at all times relevant to this proceeding and which provides for the final and binding
of certain disputes. The Board and the Association jointly requested that the Wisconsin
Relations Commission appoint an arbitrator to resolve a grievance filed on behalf of Mike
Commission appointed Richard B. McLaughlin, a member of its staff, to serve as arbitrator.
on the matter was held on May 1, 2003, in Boyceville, Wisconsin. The hearing was not
The parties filed briefs by June 30, 2003.
The parties did not stipulate the issues for decision. I have determined the record
Did the District violate the parties' collective bargaining
agreement when it assigned
the Grievant to attend a school-wide assembly on November 5, 2002?
If so, what is the remedy?
The Board's right to operate and manage the school system is
recognized, including the
determination and direction of the teaching force; the right to plan, direct and control school
activities, to schedule classes and assign work loads . . .
. . .
The Board will make every effort to maintain all conditions of
employment, wages and
working conditions including . . . general working conditions at not less than the present
in effect in the district at the time this Agreement is signed, provided that such conditions
improved for the benefit of students and teachers as required by the express provisions of
Agreement. This Agreement shall not be interpreted or applied to deprive teachers of
advantages heretofore enjoyed unless expressly stated herein.
. . .
BINDING ARBITRATION -- ARTICLE VIII
. . .
E. It is understood that the function of the Arbitrator
shall be to provide an opinion as to the
interpretation and application of specific terms of this existing Agreement. The Arbitrator
shall not have power without specific written consent of the parties . . . to issue any opinions
that would have the parties add to, subtract from, modify or amend any terms of this
. . .
. . .
The Board shall have the right to assign Junior High staff up
6 assignments per day plus
one tutorial preparation period and one preparation period. Any teacher with six (6)
day shall not be required to have a tutorial period but shall have two preparation periods.
shall be in their assigned area during the tutorial prep period. This period shall be use (sic)
1. Tutor students. Teachers should be aware
of what students are in study hall during
their prep time and be available to help them.
2. Meet with
administrators, parents, teachers or others regarding school business.
3. Prepare for classes.
Within the four-period block schedule, the Board shall have the
right to assign Senior High staff
up to three (3) assignments per day plus one preparation period. During the preparation
teachers shall allot a portion of time equivalent to the tutorial prep period in the Junior High
for meetings with students, parents, teachers and administrators and preparing for classes.
standards in effect under the 1994-95 collective bargaining agreement regarding individual
contract percentages and the ratio of preparation to teaching time under an eight period day
maintained under the four period block schedule.
Assignment -- A specific time period when a teacher is
supervising students, including classes,
study halls, noon duty, etc.
Preparations -- The number of different
subjects which a teacher must prepare for each day.
Prep Period -- The designated time when a
teacher is not in charge of students and may
prepare for classes or take care of other matters . . .
The grievance questions the authority of Bill Fisher, the Board's High School
compel the Grievant's attendance at a school play conducted on November 5, 2002, during a
preparation period. The Board conducts two plays during the course of the school year, one
Spring and one in Fall. Fisher has indicated at faculty meetings that he views the plays as
events requiring the participation of all teachers. He testified that the participation serves
purposes. One is to provide supervision to assure safety and the other is to establish
support for the events. School-wide attendance is, in Fisher's words, "an important thing for
Fisher asked the teachers to attempt to reach a consensus on the most appropriate date and
the school plays. The teachers met to discuss the point over a lunch hour. No District
attended the meeting. An instructor informed Fisher that the faculty determined that
2002 at 10:30 a.m. was the consensus choice. Fisher set the Fall play for that date and time.
The school calendar set the afternoon of November 5, 2002, for parent-teacher
For the 2002-2003 school year, the high school instructional day consisted of four blocks.
the establishment of four block scheduling, the District divided its instructional day into eight
Each block essentially covers what was two periods under the eight period schedule. The
5 play split the periods within Block 2, allowing half a period for instructional use and half
play. The 2002-2003 schedule denotes two "PREP" periods for the Grievant. The first is
from 10:10 until 10:55 a.m., and the second is Block 4B, from 2:42 until 3:27 p.m.
Sometime after the play started, Fisher noted that the Grievant was not in attendance.
looked for the Grievant, found him in his lab and asked him if he was going to come to the
Grievant responded that he would be down at the end of his prep period. Fisher responded
indicating he wanted him to attend. The Grievant did so.
The Grievant testified that he viewed Block 2A as his regular prep and Block 4B as
tutorial prep. He believed the District made the initial determination as to which period
prep and which tutorial prep, but that changes could be made as agreed upon by a teacher
principal. Prior to the 2001-2002 school year, teaching schedules specifically noted the
constituted regular preparation and that which constituted tutorial preparation. Starting with
2001-2002 teaching schedule, Fisher has denoted all prep periods a "PREP". He stated that
so reflected the flexibility needed to accomplish the purposes of tutorial
preparation. The vast bulk of prep periods is devoted to regular preparation, and the
a single, fixed tutorial preparation period unduly restricted its benefit. No teacher grieved
issuance of a teaching schedule that did not specifically identify regular and tutorial
The grievance that prompted this proceeding is the third filed by the Grievant
District's right to assign duties during preparation periods. The first resulted in a written
agreement dated May 25, 1989, that reads as follows:
The purpose of this letter is to memorialize the terms of a
settlement agreed upon by the parties
with respect to the grievance filed by Mike Kneer over the denial of his scheduled
on December 23, 1988 . . . During a recent telephone conversation, you indicated that the
grievance arbitration proceeding relating to that issue would be dismissed if the District
a compromise settlement proposed by the Association. Under that compromise, teachers
up their scheduled preparation periods whenever regular classes are suspended for two or
periods due to special events such as the Christmas-related activities involved in Mr. Kneer's
grievance. Conversely, when classes are suspended for less than two full periods (e.g. a
school assembly), teachers would be entitled to take their scheduled preparation periods.
only preparation periods falling within the time that regular classes are suspended would be
For instance, if afternoon classes are suspended, teachers would still be entitled to take their
morning preparation periods if that is when they are ordinarily scheduled.On behalf of the
I left a message with your secretary that the foregoing settlement proposal was acceptable.
as the parties have thereby reached mutual agreement as to the manner in which preparation
are to be handled when regular classes are suspended due to special events, it should, of
follow that this newly implemented practice shall be binding upon the parties unless and until
superseded by some form of mutual agreement between the parties to the contrary.
James Ward, then the Board's legal counsel, and James Begalke,
then the Association's Executive
Director, signed the letter, thus resolving the 1989 grievance.
The second grievance resulted in Boyceville School District, MA-11397,
Further facts will be set forth in the
THE PARTIES' POSITIONS
The Association's Brief
The Association states the issues for decision thus:
Did the District violate the 1999-2001 collective bargaining
agreement between the West Central
Education Association and the Boyceville Community School District when it required the
to attend a school play performance during his regularly scheduled preparation period?If so,
The Association contends that the 1989 grievance settlement and the decision in
that there "is a clear difference between preparation and tutorial preparation." Beyond this,
evidence establishes an "established practice of designating when during the school day
and tutorial preparation will occur." The practice allows teacher input into the
designation. The contract establishes that "teachers shall allot" a portion of their prep time
preparation. Changes to this allotment are infrequent, typically District initiated, and
incorporate teacher input. Teachers, including the Grievant, have not used their contractual
to infringe the "District's right of assignment during both types of preparation." With
background, the Association notes that the Grievant's two prep periods take place at different
of the day. Even though the class schedule does not distinguish between the two prep
Grievant considers the morning period his regular prep period and the afternoon period his
prep. Fisher's direction that the Grievant attend the school play indicates that he "felt it was
prerogative to switch the two preparations." These facts fall squarely within the rule
the 1989 grievance settlement. The terms of the settlement thus govern this
grievance. Any other
conclusion permits the District to bootstrap its long-standing view of assignment rights onto
MA-11397. Fisher's printing of the 2001-02 class schedules without clear distinction
between the prep
periods was the preface to an effort the District seeks to bring to completion in this
effort, however, violates the labor agreement, overturns the 1989 settlement agreement and
MA-11397. The District in fact argued in that proceeding that the two types of prep are
distinguishable, and the decision
declined to address the assignment authority at issue here except to note that the
contract set broad
outside boundaries to a professional relationship between principal and teacher that must be
meaning on a case-by-case basis. Here, however, Fisher seeks only to "ensure that his stated
of having all staff attend all school events" is implemented. His means of achieving the goal
however, overstepped the labor agreement and evidence something other than
professionalism. The Grievant's conduct is consistent with the labor agreement, with
MA-11397 and with the
1989 settlement agreement. It thus follows that the grievance should be sustained. To
violation of the labor agreement, the Association requests "that the District be required to
following notice in all places where the District posts notices to the public, including all
The Boyceville Community School District violated the collective
bargaining agreement with the
West Central Education Association when the High School Principal assigned the Grievant to
a school event during his scheduled preparation period.
The District adds that the notice should be sent "on District
letterhead" to all Association members
"at their home address" and that "the official 2003-04 class schedule be printed with a
between preparation and tutorial preparation periods."
The Board's Brief
After a review of the evidence, the Board contends that Article II permits it to
classes and assign work loads" except as limited by the labor agreement. Article X creates
preparation and does limit the Board's right to assign during that period. This limitation has
addressed in the 1989 settlement agreement and in MA-11397. The prior award did not
address the issues posed here except to note that the allocation between preparation and
preparation was not a unilateral choice of teachers, but turned on a case-by-case
this background, "the Arbitrator must determine whether the designation of the Grievant's
period (10:10 - 10:55) as the tutorial prep period was based on legitimate business reasons,
arbitrary or capricious, based upon the specific facts of the assignment." If the period is
taken to be
tutorial prep, then the District had the authority to assign the Grievant to attend the play. In
assignment was determined to be the date and time selected by the teaching staff." The
voted to have the play set for 10:30 a.m. on November 5, 2002, "to have the least
disruption to classroom instruction." This establishes a "legitimate education reason for the
More specifically, the assignment did not "undermine the teachers' prep time
the teachers chose the time and date on their own." Since there were no classes set for the
it follows that "the teachers did not need a preparation period to prepare for afternoon
the District specifically identified preparation and tutorial preparation periods prior to the
school year has no bearing on the grievance. Fisher discovered that he needed greater
scheduling the meetings appropriate to tutorial prep than that afforded in the 2000-2001 class
schedules, and changed to a general "Prep" designation in the 2001-2002 and the 2002-2003
years. The past specification of the type of prep cannot constitute a binding practice.
reserves to the District the right to assign, and even if it did not, the Association did not
change from a specific to a generic designation of prep time. Of the five teachers who
up a prep period, only the Grievant challenged the assignment. Attendance at a school play
is a rare
occurrence and does not interfere with a teacher's ability to prepare for classes. Even if it
possible to find a violation of the agreement, the sole appropriate remedy would be to state
violation, which under the terms of the prior award, must be restricted to the facts of the
contract will not support an Association demand for the specific designation of regular or
preparation on class schedules. Since the contract does not support this result, it "permits
to switch the designation of tutorial and regular prep periods." To conclude a broader
appropriate "would restrict the District's assignment rights under Article II" and put the
award in violation of Article VIII, Section E. The District concludes that it "acted
for legitimate educational purposes when it assigned teachers to attend a school wide play
the time and date established by a vote among staff members." The Grievant "was not
deprived of a preparation period" and the grievance should be denied.
I have adopted the Board's statement of the issues as that appropriate to the record.
Association's statement presumes its own answer by questioning the Board's right to assign
the regular preparation period. As the Board points out, the issue is whether the Board had
authority to consider Block 2A as the Grievant's tutorial prep.
The Board persuasively notes that the grievance questions its right to assign under
There is no reason to question whether it had the authority to assign the Grievant to attend
under Article II standing alone. Article II does not, however, stand alone. The general
rights of Article II affect preparation periods specifically governed by Article X. Thus, the
interpretive issue is whether the provisions of Article X specifically limit the general rights
As the parties point out, this issue cannot be considered a clean slate. The 1989
agreement and MA-11397 must be considered in the interpretation of Article X. The
persuasively contends that if Block 2A is considered the Grievant's regular prep period, the
settlement agreement governs the point. The November play suspended classes for "less than
full periods" and Block 2A falls "within the time that regular classes are suspended." If
Block 2A is
the Grievant's regular prep, then the 1989 settlement agreement specifies he "would still be
to take (his) morning preparation".
The interpretive issue posed by the Board is whether it has the ongoing authority to
the designation of the Grievant's regular and his tutorial prep period, and thus to designate
on November 5, 2002 as the Grievant's tutorial preparation. Neither Articles II nor X
address this point. Bargaining history and past practice offer no assistance. That Fisher
specified on class schedules which period was regular and which was tutorial preparation has
binding significance here. He changed, without Association challenge, his means of
periods on class schedules from the 2001-2002 school year. Whatever is said of the change,
no evidence that the parties share an understanding on the point. That the Grievant has
expressed his position that he can at least affect the designation establishes something short
Association agreement on the point, and nothing regarding Board assent to it.
On balance, the Board seeks on the facts of this grievance more than the labor
the 1989 settlement agreement can offer. Article X was not drafted to address the situation
questioned by the grievance. The play split the Grievant's prep period at Block 2A in
X requires that "(d)uring the preparation period . . . teachers shall allot a portion of time
to the tutorial prep period in the Junior High School." The use of "the preparation period"
that an entire block constitutes the high school prep period, but teacher schedules often split
halves of a block. The succeeding sentence refers to the junior high school eight period day
"the ratio of preparation to teaching time". This reference indicates that preparation periods
distinguishable periods within an eight period day. Nothing in either sentence clearly
impact of an assignment that splits a preparation period in half.
More to the point, each sentence undercuts the Board's view that tutorial preparation
occur whenever the Board chooses to assign it, without regard to a specific schedule. The
of MA-11397 further undercuts the Board's view. As the Association points out, the parties'
arguments in that case treated preparation periods as distinct periods rather than as
spans of time. To exemplify, the award (MA-11397 at 11) summarizes Fisher's testimony
Fisher testified that he schedules tutorial prep in the final period
of the day to permit school-wide
attendance at pep assemblies and similar gatherings. Fisher added that such assignments
be made during a teacher's regular preparation period.
The Grievant has a prep period at Block 4B, at the close of the
school day. As argued in the
grievance underlying MA-11397, that specific time slot was the Grievant's tutorial prep
Board's arguments do not clarify what has changed since that litigation other than Fisher's
of class schedules that can account for treating a preparation period as something other than
That the teachers voted on the time and date of the school play affords no persuasive
for the interpretation of Article X. If the teachers voted not to have the play, it does not
the vote affects the Board's authority under Articles II or X. As the Board points out, an
authority under Article VIII, Section E is restricted to "the interpretation and application of
terms of this existing Agreement." The parties can choose to be bound by a consensus or
vote, but nothing in the labor agreement grants an arbitrator the ability to interpret contract
based on a vote.
In sum, Fisher's assignment of the Grievant to attend the Fall play on November 5,
asserted the unrestricted District right to determine what portion of Block 2A or 4B that the
would allot to tutorial prep. This undercuts the language of Article X and the provisions of
This poses the issue of remedy, which in this case effectively revisits the issue on the
The Association's proposed remedy seeks to redress bad faith and to establish future
practices. Regarding the former point, the evidence falls far short of establishing the sort of
conduct demanding a public reproach. The evidence indicates that Fisher desires to have
District-wide attendance at certain school activities, and desired it enough to alter his
Neither is sufficiently remarkable, contractually or factually, to support the remedy the
The latter point raised by the Association is the more significant. The evidence,
not support the relief the Association seeks concerning the establishment of future schedules.
language of Article X is not as clear as the Association asserts. The allotment required by
refers to periods, but not in the blanket fashion the Association's proposed remedy would
singular reference to "the preparation period" implies, at the high school level, an entire
related reference to the eight period junior high school day may imply no more than that the
prep period should not consume more than 1/8 of an instructional day, however allocated.
language does not hermetically seal periods or preclude drawing time from either half of a
same way that Fisher's assignment stretched the holding of the prior arbitration, the
proposed remedy seeks to stretch the language of Article X.
Beyond this, the Association's remedy has something less than clear support in the
purposes of Article X. The primary purpose of tutorial prep is to "Tutor students." This
sufficient regularity of schedule for both teacher and student to prepare and to meet. As
this argues against the unfettered right to allot that Fisher asserts in this case. However, it
of demanding a rigid system by which a teaching schedule could preclude tutoring students
schedules do not dovetail with an instructor's preordained, single period of tutorial prep. To
such students from the tutoring process due to a scheduling nicety has no evident basis in
This brings the analysis back to a point raised in MA-11397:
The parties dispute whether a teacher or an administrator can
make the allotment between
preparation and tutorial preparation that is specified in the four-period block portion of
There can be no answer to this issue beyond the facts of each assignment. Under Article X,
and regular prep can overlap. In the absence of student demand for tutoring or the meetings
in Item 2, a teacher can devote tutorial prep to classroom prep. Similarly, a teacher can
student during regular prep. The contract sets no more than the outside boundaries to the
administrator/teacher relationship. An administrator cannot use the assignment rights granted
tutorial prep to defeat the existence or purpose of regular prep. Similarly, a teacher cannot
regular prep in a manner designed to undercut the Board's assignment rights during tutorial
The administrator/teacher relationship is one involving professionals expected to function
with a high
degree of independence. As a matter of contract interpretation, Article X cannot dictate that
relationship beyond the facts of a specific case.
Here, Fisher asserted an unfettered right to assign the Grievant to the school play,
without regard to
the Grievant's schedule. He did not ask why the Grievant sought to protect the prep as
because he sought to assert the general authority to assign attendance at the play. Nor did
Grievant assert any reason to protect the prep as regular prep beyond his personal view that
determine Block 2A was his regular prep. He sought to assert a general right under the 1989
settlement agreement. Each participant treated the conversation as a contest of authority.
language of MA-11397 does not support either view, because the contract language supports
The contract, read with the prior award and the grievance settlement, treats
periods as distinguishable. On the facts of this case, this supports the Grievant's view
Fisher's. However, the contract and prior award fall short of affording the Grievant a shield
every conceivable assignment. As noted in MA-11397, Article X sets no more than the
bounds to the allotment of tutorial prep. A teacher cannot use regular prep to defeat the
of tutorial prep, and an administrator cannot use tutorial prep to defeat regular prep. In my
this dictates a case-by-case determination until the parties set more certain parameters
bargaining. Here, the Board's case would have been stronger if it had taken the impact of
Play on prep periods into consideration prior to the assignment. If the specific impact of the
allotment of tutorial prep into Block 2A on the Grievant's regular prep had been determined
addressed prior to the assignment, then the Board's case would be stronger. The simple
that teachers have ample regular prep even within a tutorial preparation period is insufficient,
alone, to address Article X. If tutorial prep is to be spread across different periods, then
be taken to assure "the ratio of preparation to teaching time" is maintained as required by
The difficulty with the Board's case here is that accepting it would grant the Board the
right to allot preparation and tutorial preparation. The language of Article X, as addressed
1989 settlement agreement and in MA-11397 will not support this unfettered authority.
The Award entered below states the parties' rights on the facts of the November 5,
assignment. On the facts posed here, no further relief is appropriate.
The District did violate the parties' collective bargaining agreement when it assigned
Grievant to attend a school-wide assembly on November 5, 2002. The assignment allotted
preparation without the Grievant's agreement and without any attempt to specifically
address the impact of the allotment on the ratio of preparation to teaching time as required by
Dated at Madison, Wisconsin this 19th day of August, 2003.