No. 92-572 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

MISSOULA COUNTY HIGH SCHOOL 

EDUCATION ASSOCIATION, 

Plaintiff and Appellant, 

-vsBOARD OF TRUSTEES, MISSOULA 

COUNTY HIGH SCHOOLS, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable John S. Henson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Emilie Loring, Attorney at Law, Missoula, Montana 

For Respondent: 

Molly Shepherd; Worden, Thane & Haines, Missoula, 

Montana 

Submitted on Briefs: March 11, 1993 

Decided: July 23, 1993 

Filed: 
Justice Karla M. Gray delivered the Opinion of the Court. 

The Missoula County High School. Education Association appeals 

from an order of the Fourth Judicial District Court, Missoula 

County, granting summary judgment in favor of the Missoula County 

High School Board of Trustees. We affirm. 

The sole issue on appeal is whether the District Court erred 

in concluding that the Missoula County High School Board of 

Trustees was not required to arbitrate the elimination of a lay 

reader program. 

Prior to the 1991-92 school year, the Missoula County High 

School District operated a lay reader program in the Missoula 

County high schools. Under the program, lay readers assisted high 

school teachers in reading and correcting student papers. In 

August of 1991, the Missoula County High School Board of Trustees 

(the Board) informed the teachers that it was eliminating the 

program. 

The teachers' employment was governed by the Master Agreement 

(the Agreement), a collective bargaining agreement entered into by 

the Board and the Missoula County High School Education Association 

(the Association), the teachers' collective bargaining 

representative. The Agreement sets forth a procedure for resolving 

grievances. Level Four of the grievance procedure allows the 

Association to submit a grievance to arbitration if attempts to 

resolve the dispute pursuant to Levels One through Three are 

unsuccessful. 

On September 10, 1991, the Association filed a grievance with 

2 
Dennis Kraft, the Missoula County High School Superintendent. The 

Association asserted that the Board's unilateral elimination of the 

lay reader program violated Article 1.1 of the Agreement. 

According to the Association, the elimination of the program 

constituted a change in working conditions requiring collective 

bargaining under Article 1.1. The grievance requested that the lay 

reader program be reinstated. Kraft determined that the 

elimination of the program was not grievable. 

The Association then filed a grievance with the Board. After 

a hearing, the Board concurred with Kraft and determined that 

elimination of the program was not grievable under the Agreement. 

The Association then notified the Board that it wished to 

submit the grievance to arbitration. The Board refused to 

arbitrate elimination of the lay reader program, reasoning that if 

the matter was not grievable, it could not be arbitrated under the 

grievance procedures of the Agreement. 

On December 12, 1991, the Association filed a complaint 

requesting the District Court to compel the Board to arbitrate 

elimination of the program under 99 27-5-113 and 27-5-115, MCA. 

Based on stipulated facts, the parties filed cross-motions for 

summary judgment. On August 24, 1992, the District Court granted 

summary judgment in favor of the Board and subsequently denied the 

Association's application to compel arbitration. This appeal 

follows. 

Did the District Court err in concluding that the Missoula 
County High School Board of Trustees was not required to arbitrate 

the elimination of the lay reader program? 

The District Court concluded that elimination of the lay 

reader program did not constitute a grievance under the terms of 

the Agreement and, on that basis, that the Board was not required 

to arbitrate the matter under the Agreement's grievance procedures. 

Accordingly, the court granted summary judgment in favor of the 

Board and denied the Association's application to compel 

arbitration. 

Summary judgment is proper when no genuine issues of material 

fact exist and the moving party is entitled to judgment as a matter 

of law. Rule 56(c), M.R.Civ.P. No genuine issues of material fact 

exist in the case before us; the District Court entered summary 

judgment based on stipulated facts. Therefore, we review the 

District Court's conclusion of law regarding arbitrability to 

determine whether it is correct. Steer, Inc. v. Deptt of 

Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603. 

The Association's first contention is that Title 39, Chapter 

31, MCA, entitled Collective Bargaining for Public Employees, 

requires arbitration of the elimination of the lay reader program. 

The Association asserts that it entered into a collective 

bargaining agreement containing a grievance procedure culminating 

in final and binding arbitration, as allowed by 9 39-31-306, MCA. 

The Association then contends that if the Board is not required to 

submit a grievance to arbitration, Montana's policy of encouraging 

collective bargaining to arrive at "friendly adjustment" of 
disputes between public employers and their employees, codified in 

5 39-31-101, MCA, will be negated. 

The statutes governing collective bargaining for public 

employees do not provide a basis for requiring arbitration of the 

program elimination. Although the Agreement contains a grievance 

procedure culminating in arbitration, as allowed in 5 39-31-306(2), 

MCA, the mere existence of this provision does not require all 

controversies to be arbitrated. By entering into a collective 

bargaining agreement that provides for arbitration, the parties to 

the agreement do not consent to submitting all disputes to 

arbitration. Indeed, § 39-31-306(3), MCA, expressly provides that 

a collective bargaining agreement shall be enforced "under its 

terms. 'I Thus, the terms of the agreement determine the 

arbitrability of a dispute. See Local 1334 v. City of Great Falls 

(1988), 233 Mont. 432, 760 P.2d 99. 

The Association also contends that the District Court was 

required to order arbitration under Montana's Uniform Arbitration 

Act, 5s 27-5-111 through 27-5-324, MCA. The Association correctly 

states that, pursuant to 5 27-5-113, MCA, the Uniform Arbitration 

Act generally applies to collective bargaining agreements. 

Asserting that the Board has not raised any legal or equitable 

grounds that would preclude enforcement of a written agreement to 

arbitrate under § 27-5-114(2), MCA, the Association contends that 

5 27-5-115, MCA, requires the District Court to order arbitration 

upon the showing of a written agreement containing an arbitration 

provision. 
The flaw in the Association's reliance on the Uniform 

Arbitration Act is underscored by the Association's reliance on the 

initial language of 5 27-5-115(1), MCA, rather than the entirety of 

the subsection. Section 27-5-115(1), MCA, provides: 

On the application of a party showing an agreement 

described in 27-5-114 and the opposing party's refusal to 

arbitrate, the district court shall order the parties to 

proceed with arbitration; but if the opposing party 

denies the existence of the agreement to arbitrate, the 

court shall proceed summarily to the determination of 

that issue raised and shall order arbitration if it finds 

for the applying party or deny the application if it 

finds for the opposing party. 

The Association interprets this subsection to require arbitration, 

at a party's request, of any and all disputes arising between 

parties to a collective bargaining agreement containing an 

arbitration provision. On this basis, it contends that, as a 

matter of law, the District Court could not refuse to compel 

arbitration. 

The Association's interpretation ignores the specific language 

contained in 5 27-5-115(1), MCA, requiring the District Court to 

determine the arbitrability of a controversy when one party to the 

agreement denies that it requires arbitration. Additionally, § 27- 

5-5 MCA, requires the court to deny an application for 

arbitration if it determines that an agreement to arbitrate the 

controversy does not exist. 

We conclude that the District Court properly followed the 

procedures set forth in 5 27-5-115(1), MCA. The Association sought 

to compel arbitration and the Board asserted that no agreement to 

arbitrate elimination of the lay reader program existed. The court 
reviewed the Agreement, determined that it did not contain an 

agreement to arbitrate the dispute at issue and, as a result, 

denied the Association's application for arbitration. 

We turn our attention, then, to the terms of the Agreement to 

ascertain whether the District Court erred in concluding that the 

Board's elimination of the program was not arbitrable. Article 4.4 

of the Agreement allows the Association to submit a "grievancew to 

arbitration if prior levels of the grievance procedure have not 

resolved it. Article 1.3 defines grievance as "[a]n alleged 

violation or misinterpretation of a specific provision of this 

Agreement." Thus, because the ultimate question of arbitrability 

depends on whether the dispute constitutes a grievance, we focus on 

determining whether the Association has alleged a violation or 

misinterpretation of a specific provision of the Agreement. 

The Association contends that the Board violated Article 1.1 

of the Agreement, which provides: 

Recosnition: The Board hereby recognizes the Association 

as the exclusive and sole representative for collective 

bargaining concerning wage, hours, fringe benefits and 

other conditions of employment, as provided by law, and 

will meet and confer on such matters as the parties deem 

appropriate. 

The Association construes this provision as an agreement by the 

Board to collectively bargain wages, hours and other conditions of 

employment. The Association then alleges that the Board violated 

Article 1.1 by failing to bargain collectively "conditions of 

employment" when it eliminated the lay reader program. On this 

basis, the Association contends that it has alleged a violation of 

a specific provision which constitutes a "grievance" under Article 

7 
1.3 of the Agreement. The Association's argument is flawed. 

First, an alleged violation of the Board's duty to bargain is 

not properly resolved by arbitration, the remedy sought here by the 

Association. Alleged violations of the duty to bargain 

collectively are subject to procedures and remedies set forth in 

the unfair labor practices statutes applicable to collective 

bargaining for public employees. See 11 39-31-401 through -409, 

MCA. Specifically, 9 39-31-401(5), MCA, provides that the failure 

of a public employer, such as the Board, to bargain collectively in 

good faith is an unfair labor practice. Unfair labor practices are 

remediable by the board of personnel appeals pursuant to 55 39-31- 

403, -406, and -408, MCA. 

In this same regard, the Association's reliance on First 

National Maintenance Corp. v. NLRB (1981), 452 U.S. 666, 107 LRRM 

2705, is misplaced. First National is an unfair labor practice 

case alleging a violation of the employer's duty to bargain in good 

faith a particular decision and its "effects" under the specific 

language of the National Labor Relations Act (NLRA). It did not 

entail an effort to compel arbitration and did not necessitate a 

determination of whether a dispute constituted an arbitrable 

grievance under the language of a collectively bargained agreement. 

Nor does First National support in any way the Association's effort 

here to convert an asserted violation of the duty to bargain in 

good faith into an arbitrable grievance. 

Furthermore, the Association has failed to allege a violation 

of a "specific provision" of the Agreement that would serve as the 
basis for a grievance. The Agreement before us contains thirteen 

titled Articles, each containing a number of separate provisions. 

For the most part, the provisions are specific statements of 

rights, obligations and duties by the Board and the Association. 

A claimed violation of such a provision would fall within the 

definition of a grievance set forth in Article 1.3 of the 

Agreement. 

Article 1 of the Agreement is entitled "Recognition and 

Definition" and contains three provisions: 1) the Board's 

recognition of the Association as the exclusive representative for 

collective bargaining and agreement to meet and confer as the 

parties deem appropriate; 2) a definition of "meet and conferu 

which encompasses the exchange of views and concerns; and 3) 

definitions of other terms used in the Agreement. These 

provisions, while separately stated, are for the most part 

qualitatively different from the specific provisions regarding 

rights, obligations and duties contained throughout most of the 

Agreement, the violation of which is intended to form the basis for 

a grievance. We conclude that the violation of Article 1.1 

asserted by the Association--the Board's failure to collectively 

bargain conditions of employment--is not an alleged violation of a 

"specific provisionw of the Agreement and, therefore, does not 

constitute a grievance under Article 1.3. 

We find support for our conclusion in International Union v. 

Acme Precision Prod. (E.D.Mich. 1981), 521 F. Supp. 1358. There, 

a union filed a grievance relating to Acme's unilateral closure of 
its die casting and pulley manufacturing operations. The 

collective bargaining agreement defined "grievance," in pertinent 

part, as a claimed violation of one of its provisions. The sole 

basis for the grievance was a claimed violation of the agreement's 

recognition article. 

The United States District Court observed that a mere 

allegation that a collective bargaining agreement has been violated 

is not sufficient to justify an order to arbitrate; a party must 

point to a specific provision of the contract to support its demand 

for arbitration, and the union failed to do so. International 

Union, 521 F. Supp. at 1361. The court specifically rejected the 

union's contention that the recognition article provided such a 

basis, determining that it represented essentially ilboilerplate 

harmony" language. International Union, 521 F. Supp. at 1362. 

We hold that the Board's elimination of the lay reader program 

is not an alleged violation of a specific provision of the 

Agreement and, therefore, does not constitute a grievance. Because 

it is not a grievance, the Association is not entitled to arbitrate 

the dispute under the Agreement's grievance procedures. 

Finally, the Association attempts to make an "effects" 

argument under Union-Scioto Local School District Board of 

Education v. Unioto Support Association (Ohio App. 1992), 603 

N.E.2d 375. In Union-Scioto, a union filed a grievance and sought 

to arbitrate the school board's reduction of bus drivers' hours and 

modification of bus routes. The school board refused to arbitrate 

because the collective bargaining agreement provided that 
modification of bus routes was not subject to arbitration. In 

response, the union contended that it was challenging the 

elimination of work hours, an arbitrable issue. 

The Ohio Court of Appeals concluded that arbitration was 

properly ordered. It determined that the collective bargaining 

agreement was susceptible to two reasonable but conflicting 

interpretations regarding the arbitrability of the school board's 

action. The agreement permitted arbitration if the action actually 

eliminated work hours; however, if the action merely modified bus 

routes, it was not arbitrable. Because the parties had agreed to 

submit their contract interpretation disputes to arbitration, the 

court reasoned that the contract was properly interpreted by an 

arbitrator and not a reviewing court. Union-Scioto, 603 N.E.2d at 

376. 

Union-Scioto is not applicable. It is a "competing 

interpretations" case, whereas here, the Agreement is not 

susceptible to two reasonable interpretations regarding the 

arbitrability of the Board's action, one of which would support the 

Association's application to compel arbitration. The only 

provision that the Association asserts has been violated is Article 

1.1 and it has not advanced an interpretation of that provision 

which arguably would compel arbitration. Moreover, nothing in 

Union-Scioto supports the Association's effort to rely on it for an 

"effects" argument. 

We hold that the District Court correctly concluded that 

elimination of the lay reader program was not a grievance subject 
to arbitration. On that basis, it properly granted the Board's 

motion for summary judgment and denied the Association's 

application to compel arbitration. 

Affirmed. 

We concur: 

I 

Justices 
Justice William E. Hunt, Sr., dissenting. 

I dissent. The result of the majority opinion is to dissolve 

the arbitration agreement between the parties by allowing either 

party to deny a grievance existed and that there is nothing to 

arbitrate. It is clear to me that 5 39-31-101, MCA, which states 

that it is the policy of the State of Montana to encourage the 

practice and procedure of collective bargaining to arrive at 

friendly adjustment of all disputes between public employers and 

their employees to promote public business by removing certain 

recognized sources of strife and unrest, was meant for these facts 

and this type of controversy. The working conditions for the 

teachers are certainly changed and come within the meaning of 

5 39-31-103(10], MCA, which provides for arbitration for a 

controversy that concern the terms, tenure, or conditions of 

employment between the parties. 
July 28, 1993 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

Emilie bring 

Attorney at Law 

500 Daly Avenue 

Missoula, MT 59801 

Molly Shepherd 

Worden, Thane & Haines 

P, 0. Box 4747 

Missoula, MT 59806 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA