*1 jury оn second- correctly instructed court The trial of sufficient degree on the basis jury, murder, charge. guilty on a verdict of evidence, returned Judgment affirmed. and order By the Court. — Dobbs, another, Plaintiffs-Appellants: Mack, Plaintiffs, others, 3, No. District School Joint Village Corners, of Greenfield Cities of Hales County, Defendant-Res Franklin, Milwaukee & pondent.†
Supreme Court September 10, December Argued 1979. —Decided No. 77-104. 1979. 604.) reported (Also in 285 N.W.2d denied, January costs, reconsideration Motion † 1980. *3 appellants John S. Wil- For there were briefs Uelmen, S.G., of liamson, Goldberg, & Jr., Previant Williamson, argument Milwaukee, by John S. and oral *4 Jr. by R. Michael respondent there was a brief
For Wherry, S.C., Mulcahy Wherry, & Mark F. Vetter and Wherry argument Michael R. Milwaukee, and oral F. Mark Vetter. and HANSEN, April four- J. On T.
CONNOR Edu- Area teachers, each a member Whitnall teen employed as each of whom was and Association cation respondent a full for Joint District time teacher School year, brought during an action school 1975-1976 obtaining against respondent purpose de- for the declaring claratory judgment, their individual full and effect for were in force teacher’s contracts sought year. an order Plaintiffs also 1976-1977 school directing respondent specifically perform permanently plaintiff for each the 1976-1977 its with praying Respondent an answer and counterclaim filed judgment, declaring 118.22 and for that secs. lay 118.28, Stats., respondent off teаchers permitted Layoff in 8.5 accordance with the Section bargaining agreement Clause the 1975-1976 collective respondent Board of Joint School between the School Education District and the Area Association. Whitnall parties summary judgment and the Both moved supporting following appear pleadings and in the facts affidavits. plaintiffs an individual
Each of the entered into respondent for teacher’s contract of 1975, year March and between 1975-1976 school August stated, under the Each of the contracts 1975. heading Conditions”: “General Incorporated part herein reference and made a “2. the terms conditions of the сol- this contract are bargaining agreement may in force lective during year, Area effect Education Association the school between Whitnall
and the District.” respondent August, 1975, In Board of Joint School Area Education No. 3 and Whitnall School District bargaining agree- entered into a collective Association August 28, 1975, and was ment effective which became August 26, until 1976. to remain effect Section “Layoff pro- entitled Clause” this vided : *5 Layoff Clause “Section 8.5— necessary “1. If to of teachers decrease the number
in District of a decrease the School because substantial pupil population, the Board consider first those shall lay- volunteering layoff. Thereafter, for teacher teachers appointment, or in case shall in reverse order of off be employment, previously of teachers who had terminated reappointment their in last the District. determining appointment, “2. In order of the reverse highest working attain- full time hold the teachers able rank of will seniority layoff procedure. in the returning Supervisors teach- “3. administrators seniority ing positions for shall retain within the District they teaching assignment years in the had held a District. having in the worked full time “4. once Teachers choosing part time, teach District since Whitnall must but position by apply 1, 1975 a full time October for оpens in for a must remain available position seniority rights. time order retain full working shall than full time and their status “5. who are less Teachers seniority, in level of hold subordinate respect on the basis to one another shall be determined years of in the District. continuous service making person person the last the first “6. In hired arrange attempt off, laid shall the Administration qualifications by on the Certification staff in the basis of State grade subject levels. areas layoff in notified for shall be selected “7. Teachers writing layoff 15 of cur- on or March before rent school may Article, no teacher of this “8. Under the terms securing prevented while be- other be ing lаid off. given preference layoff for be shall “9. Teachers positions teaching for the District within substitute qualify. they Article with this laid off accordance “10. Teachers being off for laid order of in reverse reinstated be shall Rein- area certification. that occur in their vacancies credit and accrued bene- made with statements shall prior years but with- in the District of service fits from seniority credit or incremental out additional layoff. period of *6 keep ad- current to recalled must “11. Teachers be a a Office, provide must to on file the District dress with respond obliged to
yearly notice of recall within fifteen they and are intent to return days working that (15) specified, or employment on the date will commence year. cause, than the next school with no later reasonable sent Any registered letter, received when notice shall be considered requested, teach- receipt to the return respond to Failure a teacher address. of er’s last known shall result in termination rights re-employment any and all of provided in Article. as this teach- appointments made while new shall be “12. No and are available the District ers are laid off from qualified by to fill the vacancies. Certification State period of off for a laid If a teacher has been “13. reinstatement, rights under years all (7) seven without Agreement terminated. this shall part-time em- placed on Any teacher “14. full-time teaching staff ployment need to reduce of the because propor- rights in seniority and benefits retain full shall employment. of tion to actual time layoff enter grievance will Any related “15. level. Superintendent’s grievance procedure at the in layoff procedure provided as Nothing in the “16. supercede tenure paragraphs intended preceding rights.” 1976, respondent in- 1, did prior March At no time in by preliminary notice any plaintiffs form of the considering of nonrenewal writing respondent that was no time plaintiff, and at that contract of the teacher’s any give respondent of 15, 1976, prior did to March to renew of or refusal plaintiffs renewal written notice ensuing year. contract for the his/her gave 1976, respondent each By March letter dated layoff close with the plaintiff notice of effective term, The notice stated June 1976. present school pupil decrease layoff to a substantial was due It upon their abilities. population no reflection and was rights forth and benefits as set their them also advised agreement. Layoff in the Clause master 8.5 in Section 30, 1976, plaintiff Super- On each March notified the Schools, letter, intendent of the Whitnall Area aсceptance continuing individual contract and his/her employment for the with the Whitnall Area Schools year, pursuant school 1976-1977 Stats. April Superintendent, by letter, On advised plaintiffs Board, by its Notice of School Layoff, sought had their re- to terminate lationship District, purpose that the School but they Layoff to inform them that Notice during layoff the 1976- would be considered in a status again plain- each The letter informed layoff in ac- tiff was issued the notification Layoff Clause cordance with the *7 Section bargaining agreement. in the collective support Superintendent, in The affidavit the summary judgment, respondent’s details the motion for six-year pеriod. in for a decline the enrollment student popula- a total decline of student This affidavit reflects in tion of 520 of which 193 occurred the 1975- students decline It also estimates a further 1976 school year population student for the 1976-1977 students. figures in- are
No issue is made of the fact that these they represent accurate or that do not a substantial de- population. cline in student action,
Subsequent 12 of to the commencement this layoff from The the 14 teachers were recalled status. remaining plaintiffs Paulette Mack and Sharon are Schermerhorn. summary judgment, disposing
In of the motions for bargaining agree- the trial court held that the colleсtive conjunction ment construed sec. was Layoff and, Clause (2), Stats., result, as a Section 8.5 agreement bargaining did not violate collective 118.22(2). The trial court also provisions of hiring- a teacher held that no was restricted court trial during any layoff period. The off so laid such accepted the plaintiffs had pointed out further that and, hav- bargaining benefits of collective in effect ing benefits, plaintiffs had accepted those right of sec. that to assert waived the 118.22(2) were violated
agreement. declaring February 28,
Judgment entered Mack plaintiffs Paulette the teacher’s contracts force and effect are in full and Sharon Schermerhorn provisions of year, and that the 1976-1977 school Stats., permit defendant secs. 111.70 provisions of with the lay in accordance off teachers agreement be- Layoff in the 1975-1976 Sec. 8.5 Clause 3,No. District Board of Joint School tween the School Corners, and Frank- Village Cities of Greenfield Hales Education County, Area lin, and the Whitnall Milwaukee Association. for re- plaintiffs a motion April 19, 1977, filed
On
court denied
hearing.
May
the trial
On
February
1977.
decision of
affirmed its
motion and
bring
appeal.
plaintiffs
this
now
case,
considering
principal
in this
we
issues
Before
appellants from
briefly
by the
appeal taken
address the
denying
for a
their motion
court
of the trial
the order
*8
not
аppeal
order has
been
rehearing.
from this
The
in Dombrowski
challenged,
court
nevertheless this
stated
(1964),
Tomasino,
16, 18,
v.
trial court is
appealability
of orders entered on motions to va-
modify
cate or
rehearing
prior appealable
or for a
judgments depends
orders
on whether or not
presented
issues
post judgment
in the
motion could have
judgment
bеen
appeal
reviewed on an
from the
itself.
Hagen
Ver
Gibbons,
55 Wis.2d
In appellants, motion for a case their merely argued rehearing, cited a recent case required decision, the case the trial court to withdraw its thus, they presented which trial the same issues granting summary judgment. court decided when Those portion appeal issues can on that of this be reviewed challenges judgment granting respondent’s which judgment. summary Thus, appeal motion for denying appellants’ the order of the trial court motion rehearing for a is dismissed. argue appeal judgment, appellants from the
On respondent lay an that the could teacher with off complying contract with the “refusal individual without 118.22, Stats., renew” provides: which year (2) “. . . On or before March 15 the school contract, during a teacher holds board employed employe or an at teacher is the direc- which the tion of suing give the teacher shall written notice or refusаl renew his contract the en- renewal given If no such notice is on or be- then in force the contract shall continue
fore March *9 a ensuing who receives A teacher school for the year, ensuing school for the of renewal of contract notice or of renewal a notice or a who does not receive teacher year ensuing for the refusal to renew his contract writing reject accept or on March shall or before April following 15. later than the such contract not .No major- may employed except by a teacher ity in dismissed Nothing membership of the board. vote of the full prevents or termination modification this section teacher of the employment which the teacher is ment with another board. contract mutual a of to may into contract No such board board. enter any period time as with a teacher employ- a contract then under notice days prior giving written “(3) At least 15 ensuing contract for to renew teacher’s of refusal school employing the teacher year, inform board shall con- writing the board by preliminary notice that, sidering if the teacher within 5 teacher of the teacher’s nonrenewal request with the board therefor files a notice, the receiving preliminary days after private right conferenсe to a has the being given of refusal notice prior written contract.” renew his argument this issue support appellants their equiva- asserting layoff employment is the from that a under sec. to renew” a contract lent of a “refusal parties have is so when do not believe this We Stats. bargaining agreement under sec. negotiated a collective layoff are in- provisions that 111.70, which contains the corporated contracts. in the individual teacher’s concept in employment different layoff has a
A from implies temporary separation employment relations permanent than a termination rather Dictionary, International employment. New Webster’s being period off or layoff edition, as “a defines 2d Dictionary Heritage The American off work.” laid *10 English Language layoff the as, defines suspend “To during employment, period.” as a slack Appellants language contend that the (2), of sec. 118.22 Stats., provides may employed which “No teacher be by except majority a dismissed vote of the full member- ship . . .” board divides teachers into those who “employed” are the those who are “dis- Thus, argue appellants, missed” it. “layoff” a should phrase under subsumed “refusal to renew” or the “dismissal,” and, argue term effect, they in that equivalent. three terms are meaning specific
Each
a
these
and one
terms has
interchangeably
cannot be used
with another. This court
pointed
Education,
out in Richards v. Board
58 Wis.
444, 460b,
2d
(1973)
Just as terms “dismiss” and “refuse 118.22(2), Stats., appear both of have dis- meanings, tinct also do the terms to so “refuse renew” “layoff.” 118.22, Appellants next to construe sec. contend Stats., way permit a as to in such school board lay of a off a teacher accordance with agreement bargaining frustrate collective would policy prompt settlement of of sec. foster bar- through negotiation gaining disputes collective would so, encourage unrepresented. teachers remain This is argue appellants, unrepresented teacher or because the have a would teacher without collective greater job represented teaсher or protection than argue agreement. Appellants with a teacher secs. 118.22 their would harmonize construction argument that we and 111.70. The effect of their is way require in a that would should construe sec. 118.22 it proceed under when con- sec. 118.22 the Board agreement. sidering layoffs under a collective layoff agree appellants. pro- cannot We *11 only bargaining agreement of relate visions the collective is a substantial decrease to where there situations grants for population laid off student and teachers significant and and that reason benefits substantial by rights. emphasized 12 14 the fact is This arguments in oral laid off recalled before teachers were provisions trial it case court. Were this agreement, required Board of would have been of proceed to renew” to under “refusal 118.22, Stats., permanent relate to a and final sec. employment. termination of Stats., municipal employers 111.70, and authorizes Sec. bargain questions collectively on employees to concern “wages, employment.” In ing of hours and conditions WERC, 43, 242 Beloit Education Asso. v. 73 Wis.2d N.W. layoff proposal (1976), held that was 2d 231 this court “wages, em primarily of related hours conditions subject bargaining thus, mandatory ployment,” and, layoff provision in 111.70(1) (d). Since the under sec. directly is authо this collective subject 111.70, mandatory is a of col rized give bargaining, court it is incumbent this lective bargaining agreement and the collective effect to both do not believe sec. if this can be done. We statutes
489 interpreted preclude should collective bar- gaining subject layoffs on the which is authorized specific provisions sec. 111.70. The particular lay- of a is, off course, important clause an reaching element in bargaining agreement. It is well established that: “. . . statutory It ais cardinal rule of construction that conflicts statutes, between by implication different otherwise, are not favored and will not be held to exist they may if reаsonably otherwise be .” construed. . .
Moran Quality v. Casting Co., 542, Aluminum 34 Wis.2d 553, 150 (1967). N.W.2d Stats., 118.22, originally Chapter
Sec.
adopted
as
244,
1943,
Laws of
40.41,
secs. 40.40
as
whereas sec.
adopted
Chapter 509,
111.70 was
as
Laws of 1959.
legislature
statute,
When the
presumed
enacts a
it is
knowledge
existing laws, including
act with full
State,
statutes.
Joint School Dist. No. 2 v.
71 Wis.2d
276, 283,
;
(1976)
Klingler
Stats.,
knowledge
provisions
with full
of sec.
Board,
118.22. Joint School Dist. No. 8
E. R.
v. Wis.
37
493,
483,
494,
Muskego-
(1967);
Wis.2d
Appellants of this direct our attention a statement WERC, Board Education v. court in Wis.2d 640, 191 (1971) : N.W.2d specific prevail over statutes “We believe general municipal in- employee those statutes they given effect, or both cannot where stances where do not harmonize.” specific However, specifically states, rule stat- as the general only when two ute controls over a statute statutes Co., Casting Quality Aluminum are in Moran conflict. Stats., supra, at 553. Since sec. 118.22 and sec. given effect, apply not to the can this rule both be does present case. bargaining agreement
In the case before us successfully negotiated. detailed had been It included complete layoff procedures certain and established rights respective parties. one No benefits argues in- were corporated contracts into the individual teacher’s specific separate paragraph. in a reference only agreement, layoffs be- made
Under could be population. cause of a substantial decrease student *13 required The Board was procedures to follow definite layoffs both as to Among provi- recalls. the other 8.5, Layoff of Clause, sions Sec. the teachers laid off so given were to preference teaching be a for substitute could secure other off, subject while laid to they condition that employ- be available commence ment no year. Furthermore, later than the next school rights the recall period teachers continued for a years. seven layoff
The present clause case not violate does any expressed statutory command of law and not against public policy. layoff clause contained in the bargaining agreement collective specifically incorpo- rated in the individual contract teacher’s does not violate Stats. In Glendale Glendale, Policemen’s v. Asso. Prof. 90, 264 (1978), Wis.2d N.W.2d this court held that provision policemen’s agree- requiring city ment promote quali- the most senior applicant giving fied did not violate a statute the chief police power appoint subject to the subordinates approval of the Board of Police & Fire Commissioners. court stated: This “Although (4) (a), Stats., requires sec. 62.13 all sub- appointed by approval ordinates the chief with the board, not, expressly, of chief it at prohibit does least exercising power or the board from promo- qualified person according tion of a selecting ato set of rules among qualified applicants. one several . . . requiring appoint A senior labor the chief to the most qualified express not candidate does contradict an Compare: command of law. WERC Teamsters Local 563, supra. purport No. It away pow- does to take expressly Compare:
er conferred law. Durkin v. Commissioners, supra. Board Police Fire require- & A promote qualified ment the chief the most senior applicant merely restricts the discretion that would other- *14 v. Asso.
wise . . .” Policemen’s exist. Glendale Prof. Glendale, supra, 102, 103. at Stats., requires Similarly, although 118.22(2), a sec. give renewal to a teacher notice of board written 15th or to contract on or before Mаrch refusal renew his give (3) requires preliminary a sec. days earlier, of these notice neither of nonrenewal 15 exercising prohibits from its a school board subsections lay agreement right pursuant bargaining to a collective employ- during off a individual teacher the term of his lay- Therefore, it said that the ment contract. cannot be provision off sec. in is violative of 118.22. this case part, Furthermore, 118.22(2), Stats., provides in sec. “Nothing prevents the in this modification section agreement the by termination of mutual teacher’s teacher the Each of the individual board.” incorporated by and condi- contracts reference terms thus, agreement, bargaining tions of the collective agreed parties to a modification have mutual complain Appellants cannot contracts. now expressly sec. authorized modification contractual 118.22 is violation of that section. in appeal directed our attention parties
Both this have Ladysmith-Hawkins Systems, Faust School 88 Wis. (1979). the in Faust concerned 2d N.W.2d 303 rights of a teacher under dividual contract distinguished Stats., Here we from the instant case. as only con the individual teacher’s are not with concerned bargain provisions with of a collective tract also but mandatory agreement subject ing collective bar on a inсorporated specifically gaining have been Here we are also concerned teacher’s contract. provisions to the interpretation of sec. 118.22 relation bargaining- collective subject on a mandatory negotiated under provisions of sec. 111.70. provisions
Since we hold that the 118.22, Stats., of sec. and sec. conflict, 111.70 are not in provisions and that the of sec. applicable 118.22 are layoff to the bargaining agreement, instant collective do not we reach the other parties. issues raised By Judgment Appeal affirmed. or- Court. — denying der rehearing motion for dismissed.
SHIRLEY ABRAHAMSON, (dissenting). S. J. The declaratory judgment majority whiсh the affirms in- adjudications: cludes two
1. That the teachers’ of contracts Mack and Schermer- horn were in full and force effect for the 1976-1977 year; school and
2. That the properly two teachers were laid off for the year lay-off 1976-1977 school in accordance with the provisions bargaining agree- in the 1975-1976 collective ment. reasoning majority opinion
The contradictory. the is On the majority says one hand the that the individual pursuant contract was renewed for 1976-1977 to sec. 118.22, Stats., lay-off 1976-1977, being but the for temporary separation governed employment, from is the or renewal dismissal sec. 118.22. hand, majority appears On the other the to assume that apply lay-offs see. 118.22 to application does but its is bargaining the affected existence the collective agreement. Accordingly, majority opinion predicates lay-off validity of the board’s on the existence of and agreement. the terms of the agree majority
I that the teachers’ contracts were in full force and effect for the 1976-1977 school year by operation 118.22, of sec. Stats. Section
expressly “if no notice renewal states that [of [written] given on or or refusal before renew contract] continue for March the contract then in force shall agree ensuing year.” parties nо that school given 118.22(2) pursuant (3) and and notice were that individual teachers’ contracts therefore the ensuing year. school renewed for 1976-1977 Stats., procedure provid- creates Section ing or her information to a teacher as his gives ensuing year. also for the school The statute status early prompt information as to the school board and coming on the for the will remain staff which teachers replaced. year teachers will have school throughout purposes applicable These sec. 118.22 are uniformity state, time of notice and state-wide hiring rehiring to teach- teachers is beneficial ers, public. and the school boards Ladysmith-Hawkins Systems,
In Faust School (1979), we concluded 277 N.W.2d Wis.2d underlying precluded public policy sec. 118.22 enforcing provision an em- the school board ployment contract that stated the teacher’s ensuing for the We would not be renewed *16 by could not con- held that the teacher and school board change statutory procedure; that we held tract the despite had to follow the contract the school board the ex- procedures 118.22. set sec. We forth nonrenewal public as plained policy behind 118.22 follows: the sec. legis- provisions of that statute advance the “. . . The promoting and latively public рolicy of fairness declared rehiring public thoughtful decisionmaking in the of comprehen- addition, it establishes In school teachers. orderly governing procedure renewal and sive in school districts which of teacher contracts nonrenewal procedures system. to the inure have no tenure These district but teacher and the school only not of benefit large.” public at to the 495 purposes The 118.22, of Stats., sec. continue even though bargaining agreement. there is a collective As points out, the majority sec. 111.70 authorizes school bargain boards and collectively questions teachers wages, and (which hours conditions lay-offs). we have held includes Section 111.70 does obviate the 118.22; of secs. 118.21 and hiring rehiring act through and accomplished must be secs. 118.21 and while the terms the collective bargaining agreement wages, control hours condi- employment. tions of (a) 111.70(3) 4, Sec. Stats. 118.22, Stats., Section does not set forth the substan- being tive terms of the contract renewed between teacher; board and pay, hours, it is silent toas teach- ing responsibilities, etc., negotia- subjects are which tion contracting parties. does, between the Sec. 118.22 however, speak of renewal the individual contract for ensuing Sec. 118.22 thus the dura- fixes just tion contract, pro- renewed it as fixes thе cedure for renewal. The essence of secs. 118.21 and 118.- 22 employed is that by each teacher must be an individual contract, written the terms of are for the most part governed by parties, but renewal of which is governed by Muskego-Norway the statutes. CSJ No. SD WERB, 9 555, (1966); 35 151 Wis.2d N.W.2d Ladysmith-Hawkins Systems, Faust v. School 88 Wis.2d (1979). N.W.2d by The duration of the renewed contract is fixed 118.22, Stats., changed pre- cannot viously into entered between the and teacher. board Sec. provides parties may by agree- mutual modify one-year ment or terminate the renewed contract. legislature provide may parties did not the. modify sec. 118.22. The in the instant teachers attempted modify case sеc. 118.22. There no modification mutual con- 1976-1977 *17 496 not in
tract, because the renewed contract was existence bargaining at adoption the time of the of the collective agreement. one-year employment a
Just as contract cannot bind parties by provision a that the contract will not be supra, (Faust, 525), one-year renewed a em Wis.2d ployment (whether governed by contract a collective bar gaining agreement not) parties by or cannot bind the a provision upon renewal, that contract shall renewed period year. According for a to the be of less than one majority opinion, a the teacher and can renew one- board year 118.22, contract under sec. and at time the the same may empowered bargaining board under the collective agreement decide re whether the teacher shall be part year. leased for all or that Although notify in this case the had to the teach- board lay-off preceding er of the March school year, the same date as the last notice nonrenewal bargaining agreement 118.22, under sec. the collective during might have set forth a of notification later date might preceding empowered year school have ensuing during lay anytime off the teacher ap- reasoning opinion majority plies regardless provided in of the date the collective agreement bargaining lay-off. for the notice Such agreement provision bargaining in the conflicts collective term invalid. “A with sec. 118.22 and is labor whereby agree parties void.” WERC to violate law is Teamsters Local No. 75 Wis.2d Giving provision (1977). effect to such N.W.2d 696 bargaining replaces state- in a rehiring procedure wide established sec. uniform emerge procedures that 118.22 with a multitude of would agreements. under different collective agree majority 118.22 and I with the sec. both given Stats., can and effect and must be *18 interpreted preclude sec. collec- 118.22 should not be bargaining subject layoffs. collective tive the The bargaining agreement govern rights, can the and should lay- procedures pertaining lay-offs. benefits and agreement bargaining off the collective can provide, example, order in which teachers be will they dismissed and the order in which will be rehired. However, cannot contract, supersede requirement 118.22 that a of sec. is for the duration renewed under sec. any
ensuing year. If a teacher can laid off time school teaching during year, the individual contract school meaningless. year full A for a is rendered school school lays a teacher has a board which off whо contract violating very under 118.22 has been renewed sec. is prescribed terms of that which have been year existence, If statute. a contract for the school A lay-off dismissal must com- constitutes dismissal. 118.22, Stats., ply the teach- with sec. 118.22. Under sec. during year may for cause the school er be dismissed by the may year as of the end the school be dismissed notifying pursuant 118.22 of teacher sec. board under nonrenewal of the contract. Nonrenewal clearly power school includes in order staff. to renew a contract to decrease refuse only judg- part Accordingly, I would affirm contracts for which declares that the teachers’ ment year effect. full force and were 1976-1977 authorized to that Mr. Justice I have state have been Day join in this dissent. and Mr. Justice Heffernan