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Education Association and
Joint Unified School District
Arbitrator: Allen Pool
Citation: 2004 NAC 105
|American Arbitration Association
Case No. 74 L 390 00975 02 HGB
|C. ALLEN POOL, Arbitrator
Arbitrator's Case No. 12-10-02
ARBITRATION PROCEEDINGS PURSUANT TO
AGREEMENT BETWEEN THE PARTIES
Woodland Education Association
Woodland Joint Unified School District
Involving Extra Pay: Campbell, Hawke, and
This Arbitration arose
pursuant to Agreement between the Woodland Education Association, hereinafter
referred to as the “Association”, and Woodland Joint Unified School
District, hereinafter referred to as the “District”, under which C. ALLEN
POOL was selected by the parties to serve as the Arbitrator through procedures
of the American Arbitration Association. The Parties stipulated that the matter was properly before
the Arbitrator and that his decision would be final and binding.
hearing was held in the City of Woodland, California on December 10, 2002 and
January 13, 2003 at which time the parties were afforded the opportunity, of
which they availed themselves, to examine and cross-examine witnesses and to
introduce relevant evidence, exhibits, and argument.
The witnesses were duly sworn and written transcript was made of the
hearing. The Parties made oral
summations that were followed with post-hearing briefs.
The briefs were timely submitted to and received by the Arbitrator on
March 17, 2003 at which time the record was closed.
Woodland Education Association
Redding, CA 96002
36380 Highland Ave.
Yucaipa, CA 92399
400 Capitol Mall, 27th
Sacramento, CA 95814-4416
The Parties, unable
to mutually agree on how to frame the issue, authorized the Arbitrator to frame
the issue as he determined from the record.
For the Arbitrator’s consideration, each of the Parties submitted a
statement of what they believed to the issue.
Association’s Statement of the Issue:
“Did the District
violate the Collective Bargaining Agreement when it changed the established
practice with respect to the number of teachers served and compensation levels
of Released Time Teachers and, if so, what is the appropriate remedy?
District’s Statement of the Issue:
Woodland Joint Unified School District violate Article 16 of the Collective
Bargaining Agreement when it increased the number of full-time release periods,
and, if so, what is the appropriate?”
THE ISSUE AS FRAMED BY
analysis of the record, it is the determination of the Arbitrator that issue in
this matter is:
the District violate Article XVI of the Collective Bargaining Agreement when it
changed the established practice with respect to the number of teachers served
and compensation levels of Released Time Teachers and, if so, what is the
RELEVANT PROVISIONS OF THE AGREEMENT
XVI: Elementary Management/Time Release
The District shall maintain the current time management/time release
arrangement at each elementary school site.
The site administrator, annually in consultation with the school staff,
shall evaluate the program. Any
recommended changes in the existing program shall be implemented as soon as
administratively feasible. (Feasibility
shall be limited to personal restrictions related to layoff, transfers, and
reassignments.) Final approval,
based on feasibility, will be made by the Superintendent or his/her designee.
Unit members and/or classified staff may be utilized to implement this
When unit members are utilized, they shall be utilized for the purpose of
providing release time for elementary classroom unit members for not less than
one hundred twenty-five (125) minutes per week per unit member.
During weeks when instructional minutes are reduced, the amount of
release time will be adjusted as fairly and equitably as possible by the
administration and staff at each site.
When classified personnel are utilized, they shall be hired as
instructional aides only. Under
this option, the number of hours of aide time shall be equated to the cost of
release time to that school site.
Unit Members selected under this article shall be considered as regular
unit members with the same rights, privileges, and duties as all classroom unit
Article XXIV: Miscellaneous
Effect of This Agreement
is understood and agreed that if the District proposed to change a District-wide
practice (not governed by this Agreement) in a manner which affects a subject
within the scope representation, upon the Association demanding to bargain over
such proposed change the District shall bargain over such proposed change. ….
dispute in this matter centered on the use and compensation of
Release-Time-Teachers (RTTs) in the elementary schools.
Although Article XVI requires that the current management/time
arrangement be maintained and addresses its purpose, the article does not
specify how the arrangement will be implemented nor how the Release Time
Teachers (RTTs) will be compensated. The
Article is specific, though, in requiring that elementary classroom unit members
shall be given release time of not less than 125 minutes per week per unit
member. The article is also very clear in that where unit members of
the Association are used to implement the article the unit members shall
“process all the rights, benefits and duties of regular classroom teachers”.
All Release-Time-Teachers are certified and possess a valid California
The primary function
of a Release-Time-Teacher is to provide release time, during the school day, for
all regular, self-contained elementary classroom teachers at a school site.
Depending on the circumstances at a particular school site, a
Release-Time-Teacher is hired and works a proportionate percentage of a regular
classroom teacher’s workday. (A workday consists of the instructional day, the
required instructional minutes, plus the additional time required by the
Agreement.) That percentage can be anywhere from 10% up to 100% of a
full-time classroom teacher. A
full-time classroom teacher is classed as a Full Time Employee (FTE) also
referred to a 1.0 FTE. For salary
purposes, a 60% Release-Time-Teacher (RTT), for example, would receive 60% of
the salary he/she would normally be entitled to as provided by the salary
schedule agreed to in the Collective Bargaining Agreement.
That is; the 60% Release Time Teacher’s
compensation would be 60% of the amount provided for in the Agreement’s
events that led to this arbitration began towards the end of the school year in
the Spring of 2001. Grievants
Frances Campbell and Gayle Hawke were, at the time, 100% Release-Time-Teachers
employee at Whitehead Elementary School. (A
designation of 100% RTT is the equivalent of a full-time employee whose
designation would be 1.0 FTE.)
In May of 2001, the District
posted a vacant position for a 20% RTT (.2 FTE) teaching position at Whitehead
Elementary School for the 2001-2002 school year.
Only applications from existing employee inside the District were to be
accepted and given consideration. The
vacant 20% position was not filled.
meeting and conversation with Associate Superintendent Dale Weatherford in late
August of 2001, the Grievant Campbell and Hawke expressed their concern about
the District’s need to fill the vacant position in that the extra services
were needed at the school for the coming year.
However, they made it known to Mr. Weatherford that they, themselves, did
not want the extra assignment. According
to the evidence record, Mr. Weatherford instructed Ms. Campbell and Ms. Hawke to
take on the .2 FTE RTT assignment splitting the 20% between the two of them with
each person taking on 10%. Mr.
Weatherford informed the school’s principal of his decision in a memo dated
August 28, 2001 stating that “P.E. Release Time is to be provided to all
eligible certificated staff with the current allocation of 2.0 release time
teachers” (A-4). Ms. Campbell and
Ms. Hawke did as instructed and provided the services that were to be provided
for with the unfilled 20% vacant RTT position.
Campbell and Ms. Hawke believing that having been assigned an additional 10%,
their designations as 100% RTT teachers had therefore increased to that of 110%
which would now make their positions be the equivalent of 1.1 Full-time
Employee. Acting on this belief,
both teachers put in their requests each pay period for the extra pay they
believed they were entitled to, 10% in their case.
The District did not honor their request for the extra pay.
The two teachers, Ms. Campbell and Ms. Hawke, filed a Grievance which was
processed to this arbitration.
The third grievant in this
matter was Jeff Brook. Mr. Brook,
at the time, was a 100% RTT and working at the Plainfield Elementary School.
Upon request by the school principal, he volunteered, for the 2000-2001
school year, to take on an extra RTT assignment.
His designation was formally changed to that of a 1.177 RTT.
In addition, Mr. Brook was paid that year at the rate of 1.177 % of a
full-time employee; that is a, 1.177 FTE (A-15 & A-16).
Brook claimed that the designation of 1.177 % was incorrect.
His belief was that according to formula, the existence of which was in
dispute, the correct designation should have been 1.277%.
Mr.Brook’s assignment for the next school year, 2001-2002, and that of
the current school year, 2002-2003 was the same as his assignment for the
2000-2001 school year when he volunteered to take on the extra assignment at the
request of the principal.
with the 2001-2002 school year, the District changed Mr. Brook’s designation
back to that of a 1.0 FTE RTT. The
District’s assertion was that it was a mistake, an error to change his
designation to a 1.177% RTT (A-17 & A-18).
Therefore, he no longer received the extra compensation for the extra RTT
assignment(s) he volunteered for then and was still performing at the time of
the arbitration hearing . Mr. Brook
filed a grievance that was processed to this arbitration.
OF THE ASSOCIATION
The District is
in violation of the Agreement and past practice.
The Agreement requires that the current arrangement for providing release
time teachers (RTTs) at each elementary school site shall be maintained.
There is an established practice of determining the number of release
time teachers by school site. There
is also a past practice that establishes how release time teachers are to be
compensated. Compensation paid to
RTTs has been based on the number of classroom teachers they are assigned to
cover. The long established
practice is that RTT teachers will be paid an additional 10 percent for each
classroom teacher he or she is assigned to cover.
The District failed to compensate the Grievants for the extra percent
workloads assigned to them
The District created a new
theory with respect to determining the number RTTs to be assigned to a school
site and how the RTTs were to be compensated.
Assigned extra workloads and the rate of compensation are mandatory
bargaining subjects. The District unilaterally changed an established past
practice as well as the Agreement without giving notice to the Association.
The Grievance should be
sustained. The remedy should
include an order to return to the status quo ante and an order that the
Grievants be made whole for lost income, with interest as allowed by law.
OF THE EMPLOYER
The District did not
violate Article XVI of the Agreement. The
language is clear and unambiguous. There
is no entitlement to the extra compensation.
The District followed the relevant provisions.
The Agreement articulates the specific compensation and other terms and
conditions of employment to which the Grievants are entitled. It is the
District’s prerogative to manage staffing and the work force.
interpretation of Article XVI would lead to a nonsensical result, would result
in a deprivation to the District, and allow the Association to circumvent the
process and rewrite the Agreement to obtain overtime payment for performing work
during the regular contractual workday. The
RTTs workday is subject to the agreed upon number of instructional minutes.
The District is paying for the RTTs time not for the number of teachers
failed to demonstrate the existence of a past practice.
The contract language in question is clear and unambiguous.
A practice cannot exist where there is contract language that addresses
the specific practice. There is no
past practice regarding the District’s use of a formula to set RTTs
compensation based upon the number of classroom teachers for whom they provide
release time. The only formula used
by the District is a staffing allocation formula and staffing allocation is a
management tool to provide equality among the different school sites.
The Grievance should be denied.
provision providing release, preparation time for elementary classroom teachers
first appeared in the parties 1978-1979 Agreement.
The language provided for no less than 75 minutes of release time for
elementary classroom teachers. Sometime
afterward, the program was dropped. The
program was reinstated with the 1984-87 Agreement.
It continued with little change. For
the most part, the changes consisted of increases in the number of release time
minutes for the classroom teachers. The
minutes were increased to 125 minutes in the 1989-1992 Agreement and have stayed
at that number up to the present. Over
time, the title of the negotiated provision became “Elementary Time
Management/Time Release” and the article’s number was changed to Article
XVI, the focal point in the this arbitration.
The evidence record
reflected the parties’ favorable attitude toward the release time program and
its evolution. It was evident that
they like the program. Whatever
problems they may have had in the past were apparently resolved to their mutual
Before addressing the
current issue, an analysis of the provision, Article XVI, may be helpful.
The provision is specific in stating that the
District shall maintain the current time management/time release
“arrangement” at each elementary school site (Emphasis added).
The language is also specific in putting forth the purpose of the
“arrangement”; that is, to provide not less than 125 minutes of release time
per week for each elementary classroom teacher.
What is not specific in the language is how the “current arrangement”
would be implemented with regards to (1) staffing release time teachers (RTTs)
at specific elementary schools and (2) how the release time teachers, who in
effect are part-time employees, were to be compensated.
How the parties addressed the procedures to implement these two elements
evolved over time.
With respect to the first
element, staffing for release time teachers was determined by the site
principals working with their faculties and with some guidance from the
District’s Human Resource office. Guidance
from the District came with the Release Time Allocation formula (Dist. Ex-H)
developed by Associate Superintendent Dr. Crawford.
Dr. Crawford’s formula, as shown by the exhibit, was used for
calculating release time teacher allocations for elementary schools as far back
as 1989. The two principal factors
in Dr. Crawford’s formula were the number of teachers at a school site and the
number of instructional minutes.
Dr. Crawford’s formula was
effective over the years but apparently contained some confusing features.
The confusion resulted in an effort to clarify matters for site
principals by the then Interim Associate Superintendent for HR, Leo Masson, in
an e-mail memo to elementary principals on Tuesday, June 6, 2000. Mr. Masson, in addressing the confusion, noted that formulas
used in calculating the number of release time teachers were, unfortunately, not
recorded anyplace he could find (A-5). (The
evidence record did not show that Mr. Masson was aware of Dr. Crawford’s
memo, in effect, clarified the formula that was developed by Dr. Crawford.
He informed the site principals that in calculating for release time
teachers, the following should be included: (1) release time for full-time
release time teachers and (2) the allocation should include a .10 FTE for all
full-time 1-6 grade teachers, SDC teachers, and full-time release time teachers.
His memo included the following example: If you have 18 FTE 1-6 grade
teachers, a SDC, and two FTE release time teachers, you are entitled to 2.1 FTE
release teachers (A-5).
The conclusion to be drawn
from the above is that a formula has in fact existed over the years and was used
by the District in calculating the number of release time teachers to be
allocated to each elementary school. However,
it was also clear that the formula has been used by the District as a management
tool for staffing purposes only and not for compensation as alleged by the
Association. Use of a formula such
as this for staffing is a management prerogative.
It would not be a violation of the Agreement as long as the “125 minute
requirement” specified in Article XVI” is met and the District did not
implement the staffing formula in a manner that was arbitrary or capricious.
“arrangement” called for in Article XVI also resulted in the evolution of a
practice used to compensate release time teachers. Technically, release time teachers are part-time employees.
Article XVII, C, 5 states that a “full-time position shall mean a
person employed to work the entire length of an instructional day”.
Article XVII, C, 6 states that a “Part-time unit members will be
expected to spend a proportionate time for additional duties and
responsibilities equivalent to their percentage
assignment” (emphasis added).
teachers, as a matter of practice, have been hired to fill an identified
part-time position at an elementary school.
The employment status of the part-time position could range from a 10%
position up to a 100% position. That
is, from a .1 FTE position up to a 1.0 FTE position. If an individual was hired to fill a .1 FTE position, the
person would be paid 10% of what he/she would normally receive as a full-time
teacher as specified in the negotiated salary schedule. If the District hired an individual to fill a .6 FTE
position, he/she would receive 60% of that allowed by the salary schedule.
The evidence record showed
that as a matter of practice if a release time teacher’s percent status
increased the person’s salary would increase by the same percentage.
(The evidence record showed percent increases to be in 10% increments,
only.) The existence of this practice was supported by testimony at
the hearing. The following example
was discussed: A 40% RTT is
compensated at 40% of the amount she/he would receive on the negotiated salary
schedule. Testimony made clear that
if the 40% release time teacher’s position was increased by 10%, the
teacher’s salary would increase by 10% (Trans. pp. 181-182).
This practice had been in effect for several years and it was clearly
understood by all that a 10% increase meant a 10% increase in salary.
The problem in the instant
case manifested itself partly because all three grievants, Ms. Campbell, Mr.
Hawke, and Mr. Brook were, at the time, in positions designated as 100% release
time teachers. They were all 1.0
FTEs. They were also compensated at
100%, the equivalent salary of a full-time regular classroom teacher.
In May of 2001, the District
posted a vacant 20% RTT position for Whitehead Elementary School.
By late August 2001, the position had not been filled.
The District had a dilemma. Whitehead
Elementary was allocated this 20% RTT position but no one applied for the
position. If someone had, it would
logical to conclude that the person would provide instructional services at the
school in amount 20% of an equivalent full-time regular teacher. Moreover, the person would be paid 20% of that allowed by the
salary schedule. As mentioned
above, Ms. Campbell and Ms. Hawke were aware of the vacant position and they
made it known to the Associate Superintendent, Mr. Weatherford, of the need to
fill the vacancy for the coming school year.
They also made it known they, themselves, did not want the extra
At this point, the District
had several options available. The evidence record did not show what all the options might
be except to show that the option selected by the District resulted in this
Arbitration. The District opted not
to fill the .2 FTE RTT position allocated to Whitehead Elementary School.
Instead the District chose to have the two grievants, Ms. Campbell &
Ms. Hawke, perform all the P. E. release time services at Whitehead Elementary
School. This included the services
that would have been provided by the .2 FTE RTT.
The District informed the
Principal at Whitehead of its decision on August 28, 2001.
The Principal passed on the directive from Associate Superintendent
Weatherford’s office that same day to Ms. Campbell & Ms. Hawke: “P.E.
Release Time is to be provided to all eligible certificated with the current
allocation of 2.0 release time teachers.”
The Principal went on to inform Ms. Campbell & Ms. Hawke that “We
will be recording the days Release Time is provided at this allocation” (A-4).
Article XVI, (A) mandates
that the District shall maintain the current time management/time release
arrangement (Emphasis added). The
District, in this instance, by its arbitrary actions failed to maintain the
“current arrangement” at the time. Though
not expressed in the language of the provision, the “current arrangement”,
had evolved to the status of a binding past practice with respect to staffing
allocations and compensation.
The District’s first
arbitrary action was its decision not to fill the .2 RTT position allocated to
Whitehead Elementary School for the 2001-2002 school year.
The District’s dismissal of Dr. Crawford’s formula for RTT allocation
and Mr. Masson’s clarification of that formula as “a past formula” was
very arbitrary. By doing so, the “current arrangement” that had been
mutually accepted and had endured over several years and several contract
negotiations was unilaterally altered by the District.
The appropriate action by the District would have been to inform the
Association of its concerns with the current arrangement and to give the
Association the opportunity to discuss the concerns and perhaps negotiate
changes in the arrangement.
The second arbitrary
and unilateral action by the District was its departure from the practice of
paying release time teachers the requisite percent increase in compensation with
came with a percent increase in FTE status.
This too had been a mutually accepted practice and had endured over
several years and several contract negotiations.
If the District had moved forward and filled the .2 RTT allocated
position, another paid employee would have been available to provide the
identified services at the school and there would have been no grievance by
either Ms. Campbell or Ms. Hawke.. However,
the District opted not fill the position which led to this arbitration.
If Ms Campbell and/or
Ms. Hawke had been .9 FTE release time teachers, they would certainly have had
their RTT positions increase to 1.0 FTE and received the usual 10% increase in
compensation. But since both were,
at the time, 1.0 FTE release time teachers, the District’s solution to the
dilemma was to ignore the fact of an existing .2 RTT allocated position for the
school and directed them to provide the additional services that would have been
provided the .2 RTT position. This arbitrary and unilateral action, if carried to the next
logical step, would allow the District to ignore filling other allocated RTT
positions in the future and avoid the expense of paying for the services that go
with the RTT positions.
In the case of Jeff
Brook, the District returned his RTT status to that of a 1.0 FTE release time
teacher sometime in late August or September 2001.
However, the District did not make any change with respect to the added
RTT position he had voluntarily taken on in the Fall the previous school year.
Moreover, for the 2001-2002 and 2002-2003 school years he was expected to
continue providing the services that came with his 1.0 FTE position plus the
added services of the additional RTT positions he had taken on the previous
Again, the District
had other available options. Upon
reverting his pay status to that of a 1.0 FTE, the District could have hired
someone the fill the added RTT positions Mr. Brook had taken on.
The District opted not fill the positions and directed Mr. Brook to
continue providing the added services of the extra RTT position.
The District’s action was arbitrary and another example of the
District’s failure to maintain the current arrangement.
This arbitrary and unilateral action, like that with Ms. Campbell &
Ms. Hawke, if carried to the next logical step, would allow the District to
ignore filling other allocated RTT positions in the future and avoid the expense
of paying the services that go with identified RTT positions.
It is obvious
the District has some concerns with the “current arrangement” and that these
concerns should be addressed. Unilateral
action by District, however, was not the appropriate response.
It was obvious to the Arbitrator that the District and the Association
have a healthy and cooperative relationship.
They should continue to build on this relationship by meeting for the
purpose of addressing any concerns one or both may have with the “current
For the reasons discussed
above, the decision of the Arbitrator is that the District violated the Article
XVI of the Collective Bargaining Agreement.
The Grievance is sustained.
The Grievance is
sustained. The District violated Article XVI of the Collective
Bargaining Agreement when it changed the established practice with respect to
the number of teachers served and compensation levels of Released Time Teachers.
Frances Campbell, Gayle Hawke, and Jeff Brook, shall be made whole for all lost
income plus interest at the legal rate.
retains jurisdiction over this matter for 90 days from the date of this Award
with regard to any dispute that may arise in implementing the remedy.
C. ALLEN POOL, Arbitrator
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