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Title: Woodland Education Association and Woodland Joint Unified School District
Date: March 24, 2003
Arbitrator: Allen Pool
Citation: 2004 NAC 105

IN ARBITRATION PROCEEDINGS PURSUANT TO
AGREEMENT BETWEEN THE PARTIES

             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.
            The 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.

APPEARANCES:

THE ISSUE

            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.    

The 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?

The District’s Statement of the Issue:
            “Did 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 THE ARBITRATOR

            After careful analysis of the record, it is the determination of the Arbitrator that issue in this matter is:

Did 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 appropriate remedy?

                                    RELEVANT PROVISIONS OF THE AGREEMENT

Article XVI: Elementary Management/Time Release

A.         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.

B.         Unit members and/or classified staff may be utilized to implement this article.

1.         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.

2.         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.

C.        Unit Members selected under this article shall be considered as regular unit members with the same rights, privileges, and duties as all classroom unit members.

Article XXIV: Miscellaneous Provisions

B.        Effect of This Agreement

It 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. ….

BACKGROUND

            The 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 teaching credential.
            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 salary schedule.
            The 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.
            In a 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.
            Ms. 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).
            Mr. 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.
             Beginning 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.

POSITION 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.

POSITION 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.
            The Association’s 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 they release.
            The Association 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.

DISCUSSION

            The negotiated 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 satisfaction.
            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 formula.)
            Mr. Masson’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.
            Maintaining the “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).
            Release time 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 assignment.
            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 year.
            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 arrangement”. 
            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.

AWARD

            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.

REMEDY

            The Grievants, Frances Campbell, Gayle Hawke, and Jeff Brook, shall be made whole for all lost income plus interest at the legal rate.
            The Arbitrator 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.

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