I.

INTRODUCTION
This case presents the question of whether the Douglas County School

District (Employer or District) violated the Collective Bargaining Agreement (CBA) when
the District sent an invoice dated February 6, 2012, to the Douglas County Federation of
Teachers (Union) demanding $237,034.98 from the Union as reimbursement for Union
salaries from January 2012 through June 2012. The Union admits that it owes 50% of
that amount ($118,517.49), but challenges the demand for the entire amount of
$237,034.98. The Union filed a grievance, which was denied by the Employer. When
the parties were unable to resolve the dispute in the lower levels of the grievance
procedure, the Union moved the case to arbitration.
II.

STATEMENT OF THE ISSUE

The parties stipulated to a statement of the issue that read:
Did the District violate the Collective Bargaining Agreement
when it sought reimbursement from the Union for the full
compensation of Brenda Smith, Andy Pippen, Courtney
Smith and Cindi Leitch for the period between January
through June 2012, and if so, what is the proper remedy?
The parties further stipulated that the issue is properly before the

Arbitrator for a decision. There are two Collective Bargaining Agreements at issue in
this case.

First, is the teacher contract that covers employees who are licensed

teachers. DCFT Ex. L. The second contract covers employees in the classified staff.
DCFCE Ex. M.

While the controlling provisions of the two respective bargaining

agreements are similar, there are some slight differences in the language.

III.

RELEVANT CONTRACTUAL PROVISIONS

A.

DCFT

Article I.A: LIVING CONTRACT: The Douglas County

Federation of Teachers and the Douglas County School
District agree to establish a Living Contract. This will provide
for ongoing discussion and timely decision-making on
matters that will maintain positive Union-District relations and
build a more effective overall system.
The Negotiations Teams shall be authorized to discuss any
issue of mutual interest or concern and to reach tentative
agreements on issues in a timely manner without delaying
action until the expiration and re-negotiation of the collective
bargaining agreement.
The Negotiations Teams shall have the ability to amend the
Contract provided that any amendments shall be subject to
internal ratification and approval procedures of the District
and DCFT.

Article III.E: The Union President shall receive a standard

teacher contract (minimum 185 days @ 7.5 hours per day).
The cost of compensation and benefits for the Union
President shall be proportionately paid by the Union and the
District according to the agreed upon percentage of 50/50.
Article IX.E: TEACHERS ON SPECIAL ASSIGNMENT:
Teachers on Special Assignments (TOSA's) will retain their
contractual rights as defined in this Agreement. TOSA's
have specialized expertise, are resources to the system, and
can be utilized in a variety of capacities including, nonevaluative coaching, demonstration teaching, curriculum
coordination and dissemination, and administrative support.
Licensed personnel who accept TOSA positions do so under
the following conditions:
1.
Compensation rates for TOSA positions will be
determined by the negotiated teacher salary schedule.
TOSA's who work extended days beyond their contract will
be compensated at their per diem daily rate of pay.
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2.
TOSA's will be evaluated using a predetermined
customized tool, or if one is not available, the most
appropriate tool that closely matches the job description will
be utilized.
3. TOSA positions will be special assignments for one year.
Should a TOSA position be eliminated, the teacher will be
involuntarily transferred into another position for which
he/she is qualified. Return rights for TOSA positions will
follow the guidelines for extended leaves of absence.
Probationary status TOSA's will have the same rights to
reemployment as any probationary teacher.
4. TOSA one-year contract positions may be renewed on an
annual basis.
5. Prior to creating a TOSA position, a job description must
be approved by the office of Human Resources.
Article XIV.H.5:
EDUCATIONAL RESEARCH AND
DISSEMINATION PROGRAM (ER&D): The District agrees
to provide fiscal support negotiated each year by the DCFT
President and Superintendent of his/her designee in order to
maintain and develop Skill Blocks. The ER&D Skill Block
program will adhere to the following guidelines.
a. All ER&D Skill Blocks and related seminars must align
with the District's instructional goals and support Board
Goals and Executive Limitations.
b. The Certified Skill Block Advisory Committee will annually
evaluate the ER&D Skill Blocks for overall program
alignment and quality; and,
c. The DCFT will retain control of decisions regarding
content, structure, personnel and supervision of the ER&D
Program.
B.

DCFCE

Article I.A.4: The Douglas County Federation of Classified

Employees and the Douglas County School District agree to
establish a Living Contract. This will provide for ongoing
discussions and timely decision-making on matters that will
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improve union-management relations and build a more

effective overall system. The Negotiations Team shall be
authorized to discuss any issue of mutual interest or concern
and to reach tentative agreements on issues in a timely
manner without delaying action until the expiration and renegotiation of the collective bargaining agreement. The
Negotiations Team shall have the power to amend the
Contract provided that any amendments shall be subject to
internal ratification and approval procedures of the District
and DCFCE.
Article I.F.4 - Designated Union Representative. The
DCFCE can designate one classified employee to be
granted leave for a percentage of time mutually agreed upon
on an annual basis by the DCFCE and the District. The cost
of compensation and benefits for the employee shall be
apportioned by the DCFCE and the District as the parties
may agree. In the event agreement cannot be reached, the
cost of compensation and benefits will be split 50/50.
Article VI.A: Negotiations Procedures:
1. General. The Board and the DCFCE recognize that each
party has an interest in the compensation, time-off benefits
and working conditions of classified employees.
Of
necessity, a variety of topics will arise related to these joint
interests.
Both parties reaffirm their commitment to
attempting whenever possible to reach agreement with
regard to those matters utilizing the processes set forth in
this Section.

5.d. Implement. The parties set forth in writing any items

agreed upon for review and formal action by the DCFCE and
the Board of Education.

IV.

STATEMENT OF FACTS

The DCFT and the DCFCE (Union collectively) negotiated two separate
Collective Bargaining Agreements in the spring of 2011. The subject of this grievance is
centered on the provisions in the contract that require the Union to reimburse the
District for 50% of the wages and benefits of certain Union employees.

The

arrangement with DCFT has been in the contract for decades, and in the DCFCE
contract since 2007. In the present case, the four individuals' wages and benefits that
are in question are Brenda Smith, Andy Pippen, Cindi Leitch, and Courtney Smith.
DCFT President
Article II, Section E.1 of the DCFT agreement provides that the Union
President receive a standard teacher contract with the costs of compensation and
benefits being paid 50% each by the Union and the District.

The current president is

Brenda Smith.
DCFCE
The DCFCE agreement at Section F.4 provides that the DCFCE can
designate an employee to be on leave for a percentage of time mutually agreed on by
the DCFCE and the District.
representative.

Andy Pippen was DCFCE's designated classified

The provision provides that the District shall pay 50% of Pippen's

compensation.
TOSA
Pursuant to Article IX, Section E of the DCFT agreement, a Teacher on
Special Assignment (TOSA) can work part time on design, training, implementation, and
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coordination of teacher training through the American Federation of Teachers'

proprietary training program, Educational, Research & Dissemination (ER&D).

The

District offered Cindi Leitch and Courtney Smith TOSA contracts under which the
District agreed to pay 50% of their salaries.
ER&D
Article XIV, Section H.5 describes the arrangement for the ER&D
program. The Union President and Superintendent negotiate the fiscal support for the
program. The District does not dispute that its support of the salaries of Courtney Smith
and Cindi Leitch are covered under the ER&D clause.
District Superintendent Elizabeth Fagen and Union President Brenda
Smith met regularly to discuss issues of mutual concern. In May 2011, the two met at a
lunch meeting to discuss matters arising out of the sharing of compensation provisions
of the agreed-on Collective Bargaining Agreements. The two representatives agreed
that a District payment of 50% of the wage and benefits for the TOSAs was acceptable
for 2011-2012. Article XIV, Section H.5 expressly authorizes this type of negotiations to
set the allocations of payment for the TOSAs. There is a disagreement between Dr.
Fagen and President Smith as to the extent of the agreement that went beyond
compensation into matters involving accountability.
The next meeting between Dr. Fagen and Smith occurred at a lunch on
October 24, 2011. Dr. Fagen expressed to Smith her belief that greater accountability
was needed for the 50% the District paid for the services being performed by the
TOSAs. Dr. Fagen also stated to Smith that she did not believe the Union was fulfilling
the May 2011 agreement. According to Dr. Fagen, the Union officers were not working
6

in collaboration with the District. On November 28, 2011, Dr. Fagen sent an email to
Union President Smith stating in relevant part as follows:

Next as we discussed on October 24th (at lunch), our current

arrangement was that the district would pay 50% of 4 DCF
FTE regular contract (not extended contract days ? those
days are funded by DCFT). We agreed that we would fund
this portion of these FTE as long as we could demonstrate
accountability for these district funds -- by having the district
portion of those FTE report to and be evaluated by district
leaders. As you know, unfortunately, our agreement has not
been adhered to. I feel that it is my responsibility to hold us
to the agreement that we made last spring, and therefore, I
think that if we plan to continue this arrangement, we need to
make the following adjustments immediately. Please do let
me know if you have another option for meeting our
agreement. I am open to hearing an alternative that meets
both our needs.
1. Brenda office by and report to Dan McMinimee and
Christian Cutter 50% of your teacher contract time ? the
district-paid portion.
2. Cindi office in HR and report to Brian Cesare 50% of her
teacher contract time.
3. Courtney office in Curriculum and report to Carolyn
Jefferson-Jenkins 50% of her contract time.
4. Andy office in HR and report to Brian Cesare 50% of his
time. (He will also work with Bonnie and Diane on classified
pay for performance ? in addition to Brian.)

Ex. K., pp. 2, 3.

The third meeting between Dr. Fagen and Smith took place on December
6, 2011.

Vice President Pippin accompanied President Smith at the meeting.

Dr.

Fagen represented the District and two other District administrators attended the
December 6, 2011 meeting. Once again, the Employer's issue was accountability. Dr.
7

Fagen's proposal on accountability was to move the employees' work location to District
offices. Smith responded that the alternative arrangement proposed by Superintendent
Fagen was unacceptable and stated that she would be "happy to pay 100%" for the
Union officers' salaries. Dr. Fagen accepted Smith's offer and directed her attorney to
make it effective January 1, 2012.
The Union filed a grievance alleging the District was implementing its
proposal without negotiating with the Union in violation of the Collective Bargaining
Agreements. The District denied the grievance. A hearing was held at which time both
parties were offered the full and complete opportunity to present evidence and
argument in support of their respective positions. Post-hearing briefs were timely filed.
The grievance is now properly before the Arbitrator for an Advisory Arbitration Award.

V.

POSITIONS OF THE PARTIES

A.

The Union

The Union asserts the language in dispute is clear and unambiguous.

Pursuant to the contracts, the District has committed itself to pay 50% of the wages and
benefits of four designated individuals. The District confirmed the relative contributions
negotiated in May 2011 and confirmed the 50% payment of wages and benefits in an
email dated May 23, 2011. Ex. J. The District makes no claim there were any formal
negotiations, ratification, or approval that occurred during the 2011-2012 contract year
that allowed the Employer to change its contractual obligation to pay 50% of the wages
and benefits to the four individuals. The Union submits the Employer no longer likes the
deal and was free to ignore its obligations under the guise of "accountability."
8

The District has no contractual arguments to make with respect to the

obligation to pay 50% of the wages and benefits of the TOSAs. The District wants the
Arbitrator to decide that a single, spontaneous exclamation of opposition by the Union
President amounts to a formal agreement on an unratified and unapproved
$118,517.49 contract modification. TOSAs are specifically included in the definition of
teacher under the contract. The same is true of Brenda Smith in that she is a teacher
and the District has specifically agreed in Article III.E that she will be paid in that
manner. Andy Pippin is the designated Union Representative on leave from active
District employment, and is paid partly by the District because that is what the Collective
Bargaining Agreement requires about how he is to be paid.
The Union characterized the opening statement of attorney Ross as
devoid of legal argument and consisting entirely of a policy position.

Dr. Fagen's

version and interpretation of statements made by herself and Brenda Smith in May,
October, and December 2011, constitute parol evidence as to the meaning of the 20112012 Collective Bargaining Agreements, and are not a binding oral agreement to modify
the terms of clear and unambiguous contract language. Even if Dr. Fagen's versions
and interpretations are considered the "gospel truth," it does not matter. There is no
ambiguity in the Collective Bargaining Agreements on which to base introduction of
parol evidence to indicate the formation of a contract modification in the fall of 2011.
The Arbitrator's duty is to ascertain the meaning of the contract between
the four corners of the labor agreement.

Where the words are plain and clear,

conveying a distinct idea, there is no occasion to resort to an interpretation or otherwise

for the purpose of varying or contradicting written language.
9

Colorado contract law similarly holds that a contract must be examined in

the light of well-established principles of contract law. The Colorado courts hold that a
contract is to be determined primarily from the language of the instrument itself, and that
extraneous evidence is only admissible to prove intent where there is ambiguity in the
terms of the contract.
Both arbitral law and Colorado law prohibit the use of parol commitments
to provide accountability for the two teachers operating the ER&D program discussed
in the May and December 2011 meetings.

The express language of the contract

contradicts any such parol evidence. The District's reliance on Smith's spontaneous
exclamation on December 6, 2011, that the Union would rather pay 100% of the cost of
the four FTEs than move them to District offices is unsupported both factually and
legally.

The Collective Bargaining Agreements themselves set forth in clear and

unmistakable terms the manner by which they can be amended. No reasonable person
could have understood Smith's statement to be a contract offer or acceptance.
In sum, the Union concludes that the District's position represents a
fundamental rejection of basic contract principles and of the Collective Bargaining
Agreements, or a dramatic representation of the District's contempt for its collective
bargaining agreements.

The Arbitrator should sustain the grievance and enter an

Advisory Arbitration Award holding the Union owes only one-half of the total
compensation for Andy Pippin, Brenda Smith, Courtney Smith, and Cindi Leitch for the
period January through June 2012.

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B.

The Employer

The Employer takes the position the Union President and Superintendent
agreed on the terms of support for Union officers in a meeting held between the two in
May 2011. Mainly, the District and DCFT had to be able to show value for the taxpayer
dollars being spent on Union salaries. This conversation occurred before the beginning
of the 2011-2012 contract year. The same holds true with the District paid portions of
the salaries of Courtney Smith and Cindi Leitch.
The District argues that by October 2011, the agreement made between
the Superintendent and the DCFT President in May 2011 was not being fulfilled by the
Union. According to the Employer, Union officers were not working collaboratively with
the District leadership in any demonstrable way. In fact, the Union was actually taking
big steps in the opposite direction. Ex. I. The only thing the Union apparently provided
under the ER&D program was essentially a license to use AFT materials, which one
would normally assume is covered by the District's payment for the materials provided
to attendees. The Union provided no substantive evidence as to the value given by the
Union for the training events.
The Employer next argues that the Union agreed to reimburse 100% of
the salaries and benefits of Union officers. The Employer points to the December 6,
2011 meeting where the accountability issues were being discussed. Union President
Smith rejected a proposal to move the four employees to the District's offices. Union
President Smith stated she would be happy to pay 100%, but there was no way the
Union could agree to put its employees in the same building with the District
administrators.

Dr. Fagen took this as a formal agreement to be a modification of the

11

Collective Bargaining Agreements, and instructed her attorneys to make the agreement
effective January 1, 2012. The Employer submits the Union has since reneged on the
offer and filed this grievance instead.
The District avers that it did not violate the contracts by requiring full
reimbursement as offered by the Union. The undisputed fact is the District provided
teacher employment contracts to the Union President and signed teacher contracts with
the other Union officers as well as the District's grant of 50% leave to the classified
representative. The four individuals are at least part-time District employees under a
District contract with some form of duties to be performed for the Employer. To hold
otherwise is to state that the individual contract is a fiction, an illusory document to
provide a perk to the Union and the Union officers.
At the very least, the District is requesting that the Union should be
responsible for all of the salaries of the officers because the Union has failed to provide
the agreed-upon consideration to the District related to the District's 50% share. The
$237,034.98 has been billed to the Union based on the failure of the Union to fulfill its
obligations, as agreed before the Collective Bargaining Agreements commenced, and
by the agreement between Superintendent Fagen and Union President Brenda Smith
made in December 2011.
The District concludes that the Arbitrator should find no violation of the
DCFT and DCFCE contracts by the District, and that the Union owes 100% of the
compensation for the Union officers named in this grievance.

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VI.

DISCUSSION

The Arbitrator finds the Union proved by a preponderance of the evidence

the Employer violated the Collective Bargaining Agreements when it sought
reimbursement from the Union for the full compensation of Brenda Smith, Andy Pippin,
Courtney Smith, and Cindy Leitch for the period between January and June 2012.
Accordingly, the grievance will be sustained. The reasoning of the Arbitrator is set forth
in the discussion that follows.
The fundamental goal of contract interpretation is to determine and give
effect to the intent of the parties as expressed in the collective bargaining agreement.
In issues of contract interpretation, arbitrators are controlled in the first instance by the
contract language.

Past practice and bargaining history may be important in

ascertaining the meaning of the contract in dispute where the language is ambiguous or
unclear. Language is considered ambiguous if plausible contentions can be made for
conflicting interpretations.
Article III.E of the DCFT contract reads as follows:
The Union President shall receive a standard teacher
contract (minimum 185 days @ 7.5 hours per day). The
cost of compensation and benefits for the Union President
shall be proportionately paid by the Union and the District
according to the agreed upon percentage of 50/50.
Emphasis added.
There is nothing ambiguous about Article III.E. I hold that Article III.E is
not subject to more than one interpretation. The facts in this case simply do not permit
a plausible contention for conflicting interpretations.

13

The parties chose to use the

mandatory word "shall" by which the District obligated itself to pay 50% of wages and
benefits for the Union President.
Article I.F.4 of the DCFCE contract contains the language: "In the event
agreement cannot be reached, the cost of compensation and benefits will be split
50/50." The plain language provides a floor of compensation and benefits split of 50/50,
if the parties cannot reach agreement for the compensation of the designated Union
Representative. I hold the clear and unambiguous language of Article I.F.4 can only be
interpreted to compel the District to pay a minimum of 50% of the cost of compensation
and benefits for the designated Union Representative.
The ER&D program contains a provision whereby the District agrees to
provide fiscal support negotiated each year by the DCFT President and Superintendent
to maintain and develop the Skill Blocks. The President and Superintendent pursuant to
the negotiating structure set forth in Article XIV.H.5, met and agreed to a level of fiscal
support. Ex. J. It is important to note that these negotiations for the ER&D program
were conducted under an express provision of the Collective Bargaining Agreement.
There is no dispute the parties agreed on a 50/50 split of the wages for the TOSA
employees assigned to the ER&D program. Ex. J.
The Employer argued the ER&D Skill Blocks and related seminars must
align with the District's instructional goals and support Board goals and executive
limitations as required by Article XIV.H.5.a. The record is void of any evidence that the
ER&D Skill Blocks and related seminars did not align with the instructional goals of the
District.

Further, the Employer's attempt to control the evaluation process is

circumscribed by Article XIV.H.5.c where the District agreed:

14

The DCFT will retain control of decisions regarding content,

structure, personnel and supervision of the ER&D Program.
The Employer's attempt to circumvent the quoted language of Article XIV.H.5.c under
the guise of accountability must be rejected in the face of the language of Subsection c.
Therefore, I am compelled to enforce the clear and unambiguous
language whereby the parties negotiated the agreed-upon level of fiscal support for the
ER&D program.
The starting point for review of the Employer's position is the recognition of
two critical and undisputed facts.

First, the parties had in place in May 2011 two

Collective Bargaining Agreements that defined the wages and working conditions for
employees of the District during the 2011-2012 academic year. Second, the verbal
agreements on which the Employer primarily relies to sustain its position on
accountability are those purportedly entered into between Superintendent Fagen and
President Smith during their three lunch meetings.
The Arbitrator previously ruled that the disputed language in the Collective
Bargaining Agreements is clear and unambiguous.

A standard rule of contract

construction is that an arbitrator will not look outside the four corners of the labor
agreement to determine the intention of the parties when the contract language at issue
is clear and unambiguous.

It would be improper for this Arbitrator to utilize the

purported verbal agreements for the purpose of varying or contradicting written

language recorded in the Collective Bargaining Agreements between the two parties.
Colorado contract law is in accord with arbitral authority where the court has ruled that
written contracts which are complete, clear in their terms, and free from ambiguity are
15

enforced because they express the intention of the parties. American Mining Co., vs.
Himrod-Kimball Mines Co., 124 Colo. 186, 235 P.2d 804 (1951).

Therefore, the

District's attempt to use the alleged verbal agreement to modify the plain language of
the Collective Bargaining Agreements must be rejected.
Moreover, the Collective Bargaining Agreements before this Arbitrator set
forth in unmistakable language the process to amend or modify the Collective
Bargaining Agreements. Ex. M, Article I.A. While the Employer does not contend there
was any attempt to follow the negotiated process set forth in either Collective
Bargaining Agreement, the Arbitrator makes the following observations.
The negotiating teams have the power to discuss issues and reach
tentative agreements. The fact the parties have included a provision that allows a
representative to discuss issues of mutual interest and to reach tentative agreements
does not end the inquiry. Article I.A of the DCFT contract includes language that reads:
The Negotiations Teams shall have the ability to amend the
Contract provided that any amendments shall be subject to
internal ratification and approval procedures of the District
and DCFT.
Emphasis added.
Similar language is found in Article VI.A.5.d where the parties had set forth the process
to implement any tentative agreements. Specifically, the parties must set forth those
agreements in writing "for review and formal action by the DCFCE and the Board of
Education."
The record is undisputed that no negotiating teams were convened to
address the issues surrounding the shared-cost articles in dispute before this Arbitrator.
The discussions were conducted between Dr. Fagen and Union President Smith. Even
16

if the Arbitrator were to ignore the failure to follow the contract procedures for modifying
the Collective Bargaining Agreements, the final steps of reducing the agreements to
writing and thereafter submitted to the appropriate Union and Board of Education for
final resolution never occurred.
The District placed total reliance on the remark of Union President Smith
that she would be "happy to pay 100%" for the Union officers' salaries rather than move
the individuals to District buildings. For all of the reasons stated above, the Employer's
reliance on the off-hand remark is misplaced.

In addition, the idea that President

Smith's spontaneous remark that she would be happy to pay 100% as constituting a
legitimate offer to modify the Collective Bargaining Agreements at a cost of $118,517.49
to the Union is, in my judgment, an unreasonable position to take. This is particularly
true when the parties have a detailed and systematic system in place that controls how
the Collective Bargaining Agreements can be amended or modified.

Since the

purported verbal agreements cannot be utilized to modify the clear and unambiguous
language of the Collective Bargaining Agreements, the Arbitrator is compelled to hold
the District cannot utilize these purported agreements to sustain its position.
The task of your Arbitrator is to interpret and apply the terms of the
Collective Bargaining Agreements. A substantial portion of the Districts position in this
case was based on policy arguments, rather than on contract interpretation. I make no
findings regarding the Districts policy arguments, as they are appropriate subjects for
resolution through the collective bargaining process.
In sum, I conclude the District must honor the terms of the Collective
Bargaining Agreements unless they are modified in strict accordance with the
17

procedures set forth in the Collective Bargaining Agreements. Therefore, I will enter an
Advisory Arbitration Award that declares the Union owes one-half of the total
compensation for Andy Pippin, Brenda Smith, Courtney Smith, and Cindi Leitch for the
period January through June 2012.

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ADVISORY ARBITRATION AWARD

Having reviewed all of the evidence and argument, and having had the
opportunity to observe the demeanor of the witnesses during their testimony, I hold the
District violated the Collective Bargaining Agreements when management sought
reimbursement from the Union for the full compensation of Brenda Smith, Andy Pippin,
Courtney Smith, and Cindi Leitch for the period between January 2012 through June
2012. The District is directed to revise its February 6, 2012 invoice to reflect the fact
that the Union is only responsible to reimburse the District for 50% of the $237,034.98
claim. The grievance is sustained. The fees and expenses of the Arbitrator are payable
equally between the parties.

Respectfully submitted,

Gary L. Axon
Arbitrator
Dated: August 20, 2012

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