No. 13705 

IN THE SUPREME COURT OF THE STATE OF lllONTANA 

1977 

WIBAUX EDUCATION ASSOCIAT.ION, 

affilitated with Montana Education 

Association, 

Plaintiff and Appellant, 

w~~nux comW HIGH SCHOOL kt a%, , 

Defendants and Respondents. 

Appeal fr:,~rn: District Court of the Seventh Judicial District, 

Honorable L. C. Gulbrandson, Judge presiding. 

Counsel cf Record: 

For Aspellant: 

Hilley and Loring, Great Falls, Montana 

Emilie Loring argued, Great Falls, Montana 

Fcr Respondents: 

R. W. Heineman argued, Wibaux, Montana 

Submitted: September 19, 1977 

Decided: jA-N\Nfl318 

Filed: &u -. . 
Mr. Justice Daniel J. Shea delivered the Opinion of the Court: 

Plaintiff Wibaux Education Association appeals from an 

order of the District Court, Wibaux County refusing to compel 

defendants Wibaux County High School and School District No. 6, 

and its Trustees, to submit a teaching dispute to arbitration. 

The Wibaux High School Board of Trustees (School Board) 

employed Samuel R. Deckert for the school years of 1973-1974 and 

1974-1975. In the spring 1975, Deckert was still a "nontenured" 

teacher under section 75-6103, R.C.M. 1947, which provides that 

tenure is achieved when a teacher has been offered and has 

accepted a contract for the fourth consecutive year of employment. Deckert was the President of the Wibaux Education Association and as a member was covered under a collective bargaining 

agreement negotiated between the Association and the School Board. 

On March 31, 1975 the School Board notified Deckert in 

writing that it had passed a resolution to terminate his services 

at the end of the 1974-1975 school year. Pursuant to that portion 

the collective bargaining agreement relating to nontenured 

teachers, Deckert requested a hearing upon the board's decision 

to terminate his contract. A hearing was held. On April 14, 

1975 the School Board reaffirmed its decision to terminate 

Deckert . 

Deckert then followed grievance procedures under Article V 

of the agreement and requested the chairman of the Association's 

Professional Rights and Responsibility Committee to submit the 

dispute to arbitration. On May 19, 1975 the chairman made a 

written request for arbitration to the School Board, but the School 

Board did not reply. On August 12, 1975 an additional demand was 

made to arbitrate but the School Board again did not reply. Acting 
as the bargaining agent for Deckert the Association filed suit 

in District Court to compel the School Board to arbitrate. The 

court denied the request and this appeal followed. 

This case comes to us on a certified statement of the 

record and an agreed statement of facts. The sole issue is 

whether Deckert's claim of improper nonrenewal is subject to 

arbitration. 

The School Board claims Deckert was accorded all the 

procedural rights to which he was entitled under the contract 

and by Montana statutes, and that an agreement to arbitrate 

did not and could not include arbitration of the School Board's 

sole right to not renew Deckert's teaching contract. The 

Association contends the issue must go to an arbitrator and 

that an arbitrator has the ultimate .right to overrule the School 

Board in its nonrenewal decision. It argues the School Board, 

as the result of the give and take of collective bargaining, 

has agreed to arbitrate this issue. 

At the time the contract was negotiated, the school fiscal 

year 1974-1975, the only statute relating to rights of a nontenured teacher was section 75-6105.1, R.C.M. 1947. It provided that the school board must give notice to all nontenured 

teachers by April 1st of each year, if it does not intend to renew 

their contracts. A failure to do so resulted in automatic 

renewal of their contracts. It was not required that the school 

board have just cause for nonrenewal of their contracts. Nor 

does the statute, as amended in 1975, presently require just 

cause for nonrenewal of a contract of a nontenured teacher. 

In the 1974-1975 contract the parties included an Article 

which established mandatory evaluation procedures for nontenured 

teachers before they could be considered for nonrenewal. Article 
VI1,A. A second provision provided the hearing steps which 

must be followed if requested by a nontenured teacher whose 

contract was not renewed. Article VII,B. If requested, the 

School Board was required to hold a hearing as to the reasons 

why the nontenured teacher's contract was not renewed. The 

Article provides no remedies for failure of the school officials 

to comply with the hearing procedures. In any event, the 

Association agrees the school officials followed the proper 

evaluation procedures and the School Board was requested to and 

did conduct a proper hearing. 

The issue was joined when the School Board, after its 

hearing, reaffirmed its decision to terminate Deckert. He 

filed a request through the Association to submit the issue of 

his nonrenewal to arbitration. The Association labeled Deckert ' s 

11 nonrenewal a grievance" and accordingly filed a demand for F 

arbitration under the grievance procedure. The School Board 

refused to arbitrate the issue of nonrenewal and the Association 

then filed a complaint in District Court seeking an order to 

arbitrate. It was denied, and this appeal followed. We must 

determine whether the per se nonrenewal of a nontenured teacher's 

contract constitutes a "grievance" and thus is subject to the 

binding decision of an arbitrator. 

Per se nonrenewal of either a tenured or nontenured teacher 

is not expressly covered in the contract. Nonrenewal is only 

mentioned under Article VII which is confined to the evaluation 

procedures and hearing procedures for nontenured teachers. Under 

Article V, section A, a "grievance" is defined thusly: 
"A grievance may be defined as a claim based 

upon an event or condition which affects the 

conditions or circumstances under which a 

teacher works, allegedly caused by misinterpretation or inequitable application of established 

district policies, statutes, or the terms of a 

negotia ted contract ." 

The Association offers no explanation of how this specific 

definition applies to the per se nonrenewal of a nontenured 

teacher. The Association broadly asserts that the "grievance1' 

definition "would clearly cover a claim that a teacher's contract was improperly non-renewed." We can only conclude that 

since all "grievances" must be arbitrated under the contract, 

the Association believes that if nonrenewal is stated as a 

'I grievance1' it must therefore be arbitrated. 

Following' this supposition to to its logical conclusion 

would mean that in all cases involving nonrenewal of a nontenured 

teacher's contract, if the teacher and Association demand it, 

the nonrenewal decision must be arbitrated. This would mean that 

in all cases the arbitrator and not the school board would make 

the determination of whether or not to renew the contract of a 

nontenured teacher. 

It is clear that arbitration under Article VII would be 

available on a limited basis if the "grievance" was that the 

school officials or School Board failed to comply with either 

the evaluation or hearing procedures outlined in subsections 

A and B. Exactly what relief an arbitrator could grant, we 

are not prepared to say, and it is not necessary to our decision 

here for it is agreed the evaluation procedures and hearing 

procedures were properly followed. 

Here, it appears the Association is seeking to imply a 

"just-cause" provision into Article VII of the agreement. As 

stated before, this clause covers only the evaluation and 
hearing procedures. Although the Association concedes the 

School Board has the statutory right to hire and nonrenew the 

contracts of nontenured teachers, it contends the School Board 

has "bargained away" this right by placing the ultimate decision 

with an arbitrator. However, where the agreement does not 

mention the subject of who makes the ultimate nonrenewal decision, 

we cannot so easily declare that the School Board has "bargained 

away" its authority to the arbitrator. 

The hiring and nonrenewal of teachers in Montana is 

recognized as a function that belongs to the school boards. 

School boards have contitutional status under Article X, Section 

8, 1972 Montana Constitiltion, which provides: 

"The supervision and control of schools in each 

school district shall be vested in a board of 

trustees to be elected as provided by law." 

At the time the agreement here was negotiated the legislature 

had given school boards the exclusive right to hire and terminate 

teachers. Chapter 59, Title 75 covered the powers and duties 

of school boards. Section 75-5933, R.C.M. 1947, provided in 

relevant part: 

"As prescribed elsewhere in this title, the 

trustees of each district shall have the power and 

it shall be its duty to perform the following duties 

or acts: 

"(1) employ or dismiss a teacher, principal or 

other assistant upon the recommendation of the 

district superintendent, the county high school 

principal, or other principal as the board may deem 

necessary, accepting or rejecting such recommendation 

as the trustees shall in their sole discretion determine, in accordance with the provisions of the school 

personnel chapter of this title * * *.Ir (Emphasis added.) 

It is undisputed here that the appropriate high school personnel 

recommended nonrenewal of Deckert's contract. It is clear also 

that this power was given only to the School Board. 
Chapter 61, Title 75, Revised Codes of Montana, covered the 

rights, duties and obligations of teachers, superintendents and 

principals. Sections 75-6115 through 75-6128, R.C.M. 1947 (since 

repealed) were declared to be the "Professional Negotiations Act 

for Teachers". Section 75-6119 specifically provided that in 

negotiations between teachers and the school board that: 

It* * * The matters of negotiation and bargaining for 

agreement shall not include matters of curriculum, 

policy of operation, selection of teachers and other 

personnel, or physical plant of school or other 

facilities * * *." (Emphasis added.) 

It is plain from section 75-6119 that the legislature intended 

selection and concomitant right of nonrenewal to be exclusively 

the province of the school boards. These laws manifest a clear 

intent by the legislature to limit the areas of negotiation. 

The Associatcon argues that despite such statutes, it is 

within the power of school boards to confer more contractual 

rights to teachers than they are entitled to by the statutes. 

See for example: Danville Board of School Directors v. Fifield, 

(1974), 132 Vt. 271, 315 A.2d 473; Teachers of Huntington v. 

Board of Education, District No. 3, (1969), 303 N.Y.S.2d 469; 

Board of Education, Yonkers City School District v. Yonkers 

Federation of Teachers, (1976), 40 N.Y. 2d 268, 353 N.E.2d 569; 

Board of Education v. Philadelphia Federation of Teachers, Local 

No. 3, (1975), 464 Pa.92, 346 A.2d 35; Milberry v. Board of 

Education of School Dist. of Phi1.,(1976), 467 Pa. 79, 354 A.2d 

559. Certainly there are areas within which the teachers may 

legitimately bargain for greater protection for its members than 

is provided by statute. But here the legislature has specifically 

excluded selection of teachers from the negotiation process. None 

of the cases cited by the Association hold that this can be done 

where specifically prohibited by statute. The Association has 

not challenged the constitutionality of the statutes. 
It can be argued of course, that section 75-6119 prohibits 

only the selection of teachers from being a subject for negotiation, but does not prohibit the termination or nonrenewal 

of teachers from being a subject for negotiation. If that were 

so, it would have been a simple matter for the legislature to so 

declare. Furthermore, section 75-5933 states that it is within 

the "sole discretion" of the school board to "employ or dismiss 

a teacher". 

It is clear that nonrenewal of nontenured teachers was not 

covered by the agreement or allowed by the law then in effect. 

(See sections 59-1601 through 59-1617, R.C.M 1947, for the law 

presently covering collective bargaining for teachers and public 

employees in general. ) 

The judgment of the District Court is affirmed. 

We Concur: A 

I \ 

~hyef Justice