*1 SAVAGE EDUCATION ASSOCIATION affiliated Respon Assoc., the Montana Education Plaintiff dent, v. TRUSTEES OF ELE RICHLAND COUNTY High MENTARY DISTRICT #2, #7 School Dist. De Appellants. fendants No. 84-294.
Submitted on Briefs Oct.
1984.
Decided Dec.
1984.
MR. JUSTICE SHEEHY the Opinion delivered Court. appeal
This is an from an order the Seventh Judicial District, County by Richland the Trustees Richland County Elementary No. and High School District No. 2. The order denied the Trustees’ to modify, motion vacate or correct an arbitration award. The order of the District Court is affirmed.
This long procedural action has history; had a this is the second appeal parties this Court involved this *3 dispute. 1979, Undem, In Dorothy March Tone and Connie Montana, both nontenured in Savage, teachers were noti- fied that their being contracts were not Both renewed. women grievances filed as provided their collective bar- 29, gaining agreement. on The Trustees held a June hearing 1979, grievances, denied the and refused to submit them to arbitration. Association) (the
The Savage Education filed Association a complaint practices charging unfair the labor with Mon- tana Appeals Board Personnel the Trustees claiming 39-31-401(5), were violating MCA, by refusing section bargain in good faith. The hearing examiner recommended the implement Trustees proceedings the arbitration to re- solve grievance. appealed The the Trustees Board of Appeals. Personnel
The bargaining Board determined that the collective A provided grievances. griev- for arbitration of ance between the Association the Trustees existed con- nontenured cerning procedure terminating whether bargaining agreement teachers contained the collective arbitration to deter- had been followed. The Board ordered followed procedure mine whether termination was the case of Undem and Tone. Court which re-
The to the District appealed Trustees order to arbitrate. Appeal’s versed the Board of Personnel Savage v. Sav- appealed The this Court. Association (Mont. St.Rep. 1982), 39,] 647 P.2d age Mont. [199 and rein- I), the District Court (Savage we reversed We held Appeals. of Personnel stated the decision of Board had been grievance procedure that the issue of whether and we ordered followed a matter for arbitration was correctly determined the The arbitrator parties to arbitrate. complied the Trustees him was whether before XIII of the col- of Article procedural requirements with the entitled, Status Employment lective bargaining to evaluate requires the Trustees of Teachers. The article Evaluators must findings. written prepare the teachers and perform- point weaknesses the teachers’ specific also out The deficiencies. overcoming them in such ance and assist or nonre- notice of termination requires article also 15. newal, April before a nontenured teacher given be comply Trustees failed found that arbitrator Ms. to evaluate by neglecting XIII with the terms of Article in her any perceived deficiencies notify Tone her of also found performance. The arbitrator teaching (1)(1) agree- XIII Article section Trustees violated Undem help teacher steps to taking remedial ment The arbitrator XII of agreement. required as towas contract violations for these determined Dorothy Undem reinstatement of Connie offer full together positions, comparable former or Tone to their *4 effective date from the pay earnings all interim back less of rein- or refusal of reinstatement termination to the date person- official grievants’ clearing statement and termination. notices of District of files at the School nel find- with the arbitrator’s comply to The Trustees refused respondents ings. sought When to enforce the arbitrator’s Court, modify award in District the Trustees moved to and vacate the award. The denied and the Trustees motion was appealed. au- contend his Trustees that the arbitrator exceeded contract;
thority under the the School District lacked that statutory authority and constitutional to waive certain rights through arbitration; negotiation and the arbitra- that tor in construing contract; erred the arbitrator that his power exceeded find shaping remedy. the above We arguments the Trustees’ to be conse- without merit and quently affirm the Court. Savage I, we held that under the terms of the collective
bargaining agreement, of whether or not complied Trustees had procedural requirements in Ar- ticle XIII was subject The agreement arbitration. called for binding arbitration proce- after of grievance exhaustion dures. Failure submit to arbitration was an unfair labor practice as 39-31-401, defined in section MCA.
The arbitrator followed the directive Court of this Savage I. For the argue Trustees to now they did agree to arbitrate this issue powerless and that are by Savage I. attempt do so is an raise issues foreclosed argue The Trustees 20-3-324, MCA, and sec- section 39-31-303, MCA, tion give them sole in hiring direction firing teachers. MCA. Powers and duties. As 20-3-324,
“Section pre- title, scribed elsewhere this the trustees each district duty shall have the perform and it shall be their the following duties or acts:
“(1) employ or may dismiss teacher ... as the board deem necessary, accepting rejecting such recommenda- determine, tion as the trustees shall in their sole discretion 4;” provisions accordance with the of Tile Chapter Management rights public 39-31-303, “Section MCA. employers. employees representatives Public their shall *5 294
recognize prerogatives public employers operate the of to manage as, and their affairs in such areas not limited but to:
“(2) promote, assign, employees; hire, transfer, and retain recognize managerial power We the conferred on broad School statute. right specifically gives public employees Montana law collectively. bargain 39-31-201, to Section MCA. Statutes public govern bargaining process em- between ployers employees Chapter 31, and in Part their are found of Title 39 of the Code Included in Montana Annotated. MCA, 39-31-303, this Part is section which sets forth the right rights employers including management public of imposes MCA, 39-31-305, to However, hire and fire. section collectively bargain duty upon public employers in to good employees: faith with its — collectively good bargain Duty to
“Section 39-31-305. faith.
“(1) public representative, employer exclusive through appropriate representatives, shall officials or their authority duty collectively. bargain to and the collectively duty bargain obligation This extends to to (2) good in this section. faith as set forth subsection of “(2) purpose chapter, bargain collec- For the of this tively performance obligations the mutual is the public representatives employer designated his and the or representatives representative meet at exclusive respect good negotiate faith with reasonable times wages, fringe other em- hours, benefits, conditions any ques- ployment negotiation an or the arising con- tion the execution of a written thereunder and any obligation incorporating tract reached. Such compel agree proposal party or re- does either to a added.) quire making (Emphasis of a concession.” provides: 39-31-304, MCA, Section Negotiable districts. items school “Section 39-31-304. Nothing chapter require in this shall or allow boards of collectively bargain upon any trustees of school districts to 39-31-305(2).” specified matter other than matters Savage procedural guarantees We I held that the bargaining agree contained in XIII of the collective grievance procedure ment and the which culminated in ar employment bitration were conditions of within the mean ing of 39-31-305, section MCA. We hold that the School statutory authority District has the constitutional and bargaining agreements enter into the collective and that the *6 proper subjects sections of the at issue here were bargaining. having Trustees, We hold that the entered good by into the faith, in are bound it. The Trustees contend that the arbitrator misinter preted provided the contract and a to Tone Undem that was not within his under the contract. parties agree binding When arbitration the role of a reviewing findings court in arbitrator’s is a narrow one. the scope governed by of review is sections 27-5-301 and They provide: 27-5-302, MCA. may
“Section 27-5-301. When court vacate award. The judge, may upon any court or motion, on vacate the award following grounds may hearing order a new before the not, same arbitrators or in its or his discretion:
“(1) procured by corruption It was or fraud.
“(2) guilty The arbitrators were of misconduct or commit- gross refusing, postpone ted in error shown, on cause the hearing refusing pertinent inor to hear evidence or other- improperly by rights wise acted in a manner which the party prejudiced. were - “(3) powers making The arbitrators exceed their improperly award, or refused or omitted to consider a part of the matters submitted to them.
“(4) performed.” The award is indefinite or cannot be may modify “Section 27-5-302. When court or correct judge may, modify award. The motion, court or on or cor- appears rect the award where it that: “(1) which it figures upon there was a miscalculation description is mistake in the was made or that there a therein; property some persons or submitted, “(2) part upon of the award is matters not parts other and does not part separated can be from submitted; the decision on the matters affect “(3) form, have award, could been though imperfect verdict, imperfection if or the amended it had been a disregarded.” grounds no under there were
The District Court found agree. modify the award. We these statutes to vacate or parties intent of the and the purpose It would defeat of arbitration by the result party to allow a dissatisfied in the arbitration anew litigate all the issues covered following quote This reflected aptly court. view is Court: Supreme from the United States parties very limited when the court is “The function of interpreta- contract questions of agreed to submit all whether ascertaining tion the arbitrator. It is confined on its a claim which party making arbitration is seeking moving party Whether face is the contract. governed interpretation contract is a right wrong is moving party In these circumstances the arbitrator. when judgment, deprived of the arbitrator’s should not be *7 was bar- all that it connotes judgment it was his for. gained weighing courts, therefore, no business have
“The equity is whether there considering grievance, merits of the par- there is claim, determining whether particular a sup- will instrument the written language ticular grievances all is to submit claim. The port the deem court will arbitration, which the merely those may claims frivolous of even processing meritorious. The part not a are those who therapeutic values of which United unaware. may quite environment be plant of the Co. Manufacturing v. American Steelworkers America L.Ed.2d 1346, 4 1343, 80 S.Ct. (1960), 363 U.S. 1403, 1407.”
The con scope arbitrator must act within the case, bargaining agree tract. the instant the collective any specific remedy ment did not set forth for breach of procedural XIII. The requirements contained Trustees contend the arbitrator did not have the under bargaining agreement shape collective remedy provided. he The Trustees contend that their statu tory power remedy. manage prescribe entitles them to position effectively Such a is for it untenable leaves the grievants If remedy. remedy no fashioned arbi trator rationally has been derived from the it Kittery Teachers Association v. will upheld be on review. (Maine Kittery School Committee 413 A.2d 534. 1980), In this case we find pay reinstatement with back and the arbitrator’s other remedies to be appropriate. School District denied Tone and Undem procedural rights that would have enabled jobs. them to save their Their jobs were lost and the prescribed by the arbi trator compensated them for that It is loss. no answer for say Trustees to if they complied had with the bar gained for procedures XIII, they under Article would have terminated the teachers anyway because contend there is no required substantive basis under the contract or the law to terminate the teachers. It the failure of the was School District procedural steps follow the non affecting tenured required teachers as prevents any law that now consideration of substantive reasons for termination School may have had. is a It matter of failure of due process.
The order of the District Court is affirmed and the case remanded to enforce the arbitrator’s award.
Affirmed.
MR. CHIEF JUSTICE JUSTICES HASWELL and MR. SHEA and HARRISON concur. WEBER,
MR. JUSTICE dissenting: *8 the ex- opinion I respectfully majority from the dissent entirety in the award fashioned tent that it affirms its of reinstate- I that the award arbitrator. have concluded to the beyond power granted ment to the is teachers arbitrator. by the District Court of
The review extent of the of 27-5-301, MCA. in section the arbitration award is stated motion, may vacate the award “The judge, court or on may order a new upon any following grounds of the not, in or his its or hearing before the same arbitrators discretion:
“(3) making in powers The exceeded their arbitrators a to consider award, omitted improperly or refused or .” . . . to them part of the matters submitted the arbi- award, my In it is conclusion fashioning his bargaining collective key portion of the disregarded trator XVII, Art. being parties, agreement between the Arbitration; Subdivision Procedure; Grievance Section Jurisdiction: disputes over jurisdiction
“The arbitrator shall have the ar- before properly disagreements relating grievances juris- procedure. of this pursuant bitrator to the terms proposed not extend diction of the arbitrator shall as defined employment in conditions of changes terms and nor shall an agreement; in this written herein and contained which has any grievance over jurisdiction arbitrator with terms compliance arbitration not been submitted to outlined as procedure of the and arbitration grievance extend arbitrator jurisdiction nor shall the herein; Ar- as managerial policy to matters inherent defined in dis- issue any Agreement. considering ticle IV this consideration due order, give shall pute, in its the arbitrator school district obligation statutory rights and to the its within operation its efficiently and conduct manage (Em- district.” the school operation legal rights phasis supplied.) part Agreement pertinent states:
Article IV of the “ARTICLE IV
“SCHOOL RIGHTS DISTRICT Managerial Rights: Inherent The exclusive 1: “Section representative recognizes is not re- that the school district quired permitted negotiate on to and is not to meet and managerial prerogatives, matters of inherent which include employees, following: directing but are not limited to the hiring, promoting, transferring, assigning retaining em- ployees . . . apparent
Under Article IV it is that there can be no collec- employee bargaining retaining tive on the an again teacher. we at the Grievance Procedure When look jurisdiction XVII, under we see that the of the arbi- managerial trator not extend to matters of inherent does employ- prerogative, retaining include which would bargain- Thus, ees. it seems clear that under this collective ing agreement require the arbitrator is not allowed to reten- remedy. tion of a teacher an I note that the as arbitration majority opinion disagrees sug- with this conclusion and gests effectively position that such a is untenable because it remedy. respect- aggrieved leaves the I teachers without a fully disagree with that conclusion. clearly jurisdiction
Under Subdivision the arbitrator has dispute. jurisdiction Notwithstanding over dispute, this this over
it is clear that the subdivision does not allow example, propose changes arbitrator, as an the terms employment; jurisdic- and conditions of he have nor does made matters of inherent mana- tion to decisions which are specifically gerial policy IV, as defined under Article retaining employees. includes instance, In this award stated: arbitrator’s remedy proper “2. is to offer Doro- for this violation thy Tone and Connie reinstatement to their former Undem comparable positions, back-pay together in- less all earnings to the terim date of termination from the effective . . .” of reinstatement date of reinstatement or refusal require The effect of this award is to the District to retain employees year, thereby giving the two for their fourth disregards them tenure. This award the District’s undis- puted prerogative regarding retaining to make decisions employees. It seems clear that under the collective bar- gaining agreement remedy in- to be awarded this equal stance should have been limited to a dollar award amount to the loss suffered the teachers. That would appropriate remedy constitute an which does not violate negotiated contract. I would vacate the reinstatement and remand for a determination the arbitrator of such a dollar amount as he finds to be reasonable to losses of the teach- meet the specifically excluding ers, but a reinstatement award.