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 comWHIGH SCHOOL kt

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## , 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: 

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### Mr. JusticeDaniel 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 itsTrustees, 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 wasstill a "nontenured" teacher under section 75-6103, R.C.M. 1947, which provides that tenure 

### isachieved when a teacher has been offered and has accepted a contract for the fourth consecutive year of employment. Deckert was the President of theWibaux Education Association and as a member was covered under a collectivebargaining agreement negotiated between the Association and the School Board. On March 31, 1975 the School Board notified Deckert in writing that ithad passed a resolution to terminate his services atthe end of the 1974-1975 school year. Pursuant to that portion the collectivebargaining agreement relating tonontenured 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 theAssociation's Professional Rights and Responsibility Committee to submit the dispute toarbitration. 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 toarbitratebut the School Board again did not reply. Actingas the bargaining agent for Deckert theAssociation filed suit inDistrict Court to compel the SchoolBoard toarbitrate. The court denied the request and this appeal followed. This case comes tous 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 allthe procedural rights towhich he was entitled under the contract and by Montana statutes, and that an agreement toarbitrate did not and could not include arbitration of the School Board's sole right tonot renew Deckert's teaching contract. The Association contends the issue must go to an arbitrator and that an arbitratorhas the ultimate .right to overrule the School Board initsnonrenewal decision. It argues the School Board,

as the result of the give and take of collectivebargaining, has agreed to arbitrate this issue. Atthe 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 toallnontenured teachers by April 

### 1st of each year, if it does not intend to renew their contracts. A failureto do so resulted inautomatic renewal of their contracts. It was not required that the school board have just cause fornonrenewal of their contracts. Nor does the statute, as amended in 1975, presently requirejust

cause fornonrenewal of a contract of a nontenured teacher. In the 1974-1975 contract the parties included anArticle which establishedmandatory evaluation procedures for nontenured teachers before they could be considered for nonrenewal. ArticleVI1,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 tohold 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 theAssociation 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 fileda complaint inDistrict Court seeking an order to arbitrate. It was denied, and this appeal followed. We must determine whether the per senonrenewal of a nontenured teacher's contract constitutes a "grievance" and thus 

### is subject to the binding decision of an arbitrator. Per senonrenewal of either a tenured ornontenured teacher isnot expressly covered inthe contract. Nonrenewal is only mentioned under Article

### VII which is confined to the evaluation procedures and hearing procedures for nontenured teachers. Under ArticleV, sectionA, a "grievance" 

### isdefined thusly:"A grievance may be defined as a claimbased upon an event or condition which affects the conditions or circumstancesunder which a teacher works, allegedly caused by misinterpretation or inequitable application of established districtpolicies, statutes, or the terms of a negotiated contract

# ." The Association offersno explanation of how this specific definition applies to the per senonrenewal of a nontenured teacher. The Association broadly asserts that the "grievance1' definition "would clearly cover a claim that ateacher's contractwas improperly non-renewed." We can only conclude that since all"grievances" must be arbitrated under the contract, theAssociationbelieves that if nonrenewal 

### is statedas a

'Igrievance1'itmust therefore be arbitrated. Following'this supposition to to its logical conclusion would mean that inallcases involving nonrenewal of a nontenured teacher's contract, if the teacher and Association demand it, the nonrenewal decision must be arbitrated. Thiswould mean that inallcases the arbitrator and not the schoolboard would make the determination of whether or not to renew the contract of a nontenured teacher. It 

### is clear that arbitrationunder ArticleVIIwould be available on a limited basis if the "grievance" was that the school officials or School Board failed to comply with either the evaluation orhearing procedures outlined in subsections A and B. Exactly what relief an arbitrator could grant, we
arenot prepared to say, and it isnot necessary to our decision here for it isagreed the evaluation procedures and hearing procedures were properly followed. Here, itappears theAssociation is seeking to imply a "just-cause" provision intoArticleVIIof the agreement. As statedbefore, this clause covers only the evaluation andhearing procedures. Although theAssociation concedes the School Board has the statutory right tohire 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 easilydeclare that the School Board has "bargained away" its authority to the arbitrator. The hiring and nonrenewal of teachers inMontana 

### is recognized as a function thatbelongs to the school boards. School boards have contitutional statusunder Article X, Section 

### 8, 1972Montana Constitiltion, which provides: "The supervision and control of schools ineach school district shallbe vested ina board of trustees tobe elected asprovided by law." Atthe time the agreement here was negotiated the legislature had given schoolboards the exclusive right tohire 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 shallhave the power and it shallbe 

### itsduty toperform 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 orrejecting such recommendation as the trustees shall intheir sole discretiondetermine, inaccordance with the provisions of the school personnel chapter of this title

# ** *.Ir (Emphasis added.) It isundisputed here that the appropriatehigh 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 tobe the "Professional Negotiations Act forTeachers". Section 75-6119 specificallyprovided that in negotiations between teachers and the schoolboard that:

It* 

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# * The matters of negotiation and bargaining for agreement shallnot include matters of curriculum, policy of operation, selectionof teachers and other personnel, orphysical plant of school or other facilities

# * *

# *." (Emphasis added.) It 

### isplain from section 75-6119 that the legislature intended selection and concomitant right of nonrenewal tobe exclusively the province of the schoolboards. These laws manifest a clear intentby the legislature tolimitthe 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 areentitled toby the statutes. See for example: Danville Board of School Directors v. Fifield, (1974), 132Vt. 271, 315 A.2d 473; Teachers of Huntington v. Board of Education, DistrictNo. 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 areaswithin which the teachers may legitimately bargain for greaterprotection for itsmembers than 

### isprovided by statute. But here the legislaturehas specifically excluded selection of teachers from the negotiationprocess. None of the cases citedby theAssociation hold that this can be done where specificallyprohibited by statute. The Associationhas not challenged the constitutionality of the statutes.It canbe 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 ornonrenewal of teachers from being a subject fornegotiation. If that were so, itwould have been 

### a simple matter for the legislature to so declare. Furthermore, section 75-5933 states that it iswithin 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 collectivebargaining for teachers and public employees ingeneral.) The judgment of the District Court isaffirmed.

We Concur: A

I \ ~hyef Justice