THE STATE EX REL. CHAVIS ET AL., APPELLANTS, v. SYCAMORE CITY SCHOOL DISTRICT BOARD OF EDUCATION, APPELLEE.
No. 94-557
SUPREME COURT OF OHIO
Submitted September 20, 1994—Decided November 23, 1994.
71 Ohio St.3d 26 | 1994-Ohio-24
APPEAL from the Court of Appeals for Hamilton County, No. C-920906.
{¶ 1} Relators-appellants are fourteen individuals employed as tutors by respondent-appellee, Sycamore City School District (a.k.a. Sycamore Community School District) Board of Education (“board“), at various times during the 1986-1987 through 1990-1991 school years. Eleven of the appellants provided supplemental instruction to learning disabled (“LD“) students and the three remaining appellants provided supplemental instruction in English as a second language (“ESL“). All of the fourteen appellants held valid teaching certificates when they performed tutorial duties for the board in the pertinent time period.
{¶ 2} Appellants were employed under individual “tutor” contracts in which they agreed to perform LD and ESL “tutoring services” on an “as needed basis” at an hourly rate of pay. The tutors’ salary schedules set a flat hourly rate for school years 1986-1987 through 1988-1989 and included increases in the hourly rates based on years of service for school years 1989-1990 and 1990-1991. The tutors’ salary schedules did not provide for increments based upon training and were not
{¶ 3} During the same period in which appellants were employed under LD and ESL “tutor” contracts, the board entered into several collective bargaining agreements with the Sycamore Education Association, the exclusive collective bargaining agent for all board employees with “teacher” contracts. The collective bargaining agreements in effect during school years 1986-1987 through 1990-1991 covered all persons “employed as teachers by the Board *** excluding *** all hourly paid employees[.]” As the parties all concede, since appellants were hourly paid employees when they were employed under the LD and ESL “tutor” contracts, they were not included within the bargaining unit, were not represented by the union, and were not covered by the agreements. The teachers’ salary schedules in the collective bargaining agreements included increments based upon training and years of service. Although the board does not know whether the teachers’ salary schedules were filed with the Superintendent of Public Instruction pursuant to
{¶ 4} During school years 1986-1987 through 1990-1991, all appellants were paid in accordance with the tutors’ salary schedules for duties performed under their “tutor” contracts and were not paid under either the teachers’ salary schedules incorporated in the collective bargaining agreements covering this period or the
{¶ 5} In the collective bargaining agreement effective beginning with the 1991-1992 school year, LD and ESL tutors, including appellants, were brought into the bargaining unit and a separate salary schedule was incorporated into the collective bargaining agreement, providing for lower annual salaries for tutors than other instructors. Shortly following appellants’ inclusion in the bargaining unit, they became aware of recent court decisions concerning tutors, and in June 1992, they demanded that the board properly compensate them for their tutoring for school years 1986-1987 through 1990-1991. The board refused appellants’ demand.
{¶ 6} Appellants instituted a mandamus action in the Hamilton County Court of Appeals, seeking to compel the board to pay them the difference between their actual pay as tutors and the pay set forth in the collective bargaining agreements’ teachers’ salary schedules for school years 1986-1987 through 1990-1991. Alternatively, appellants requested a writ compelling the board to pay the difference between their pay as tutors and the amounts mandated in the
{¶ 7} The parties submitted the matter to the court of appeals on motions for summary judgment limited to the liability issues. On January 26, 1994, the court of appeals granted the board‘s motion for summary judgment and denied appellants’ petition for a writ of mandamus.
Gary Moore Eby, for appellants.
Taft, Stettinius & Hollister and Robert J. Townsend, for appellee.
Per Curiam.
{¶ 9} The court of appeals granted the board‘s motion for summary judgment and denied the writ because it determined that the collective bargaining agreements’ exclusion of appellants from coverage prevailed over any provisions of
“An agreement between a public employer and an exclusive representative entered into pursuant to this chapter governs the wages, hours, and terms and conditions of public employment covered by the agreement. *** Where no agreement exists or where an agreement makes no specification about a matter, the public employer and public employees are subject to all applicable state or local laws or ordinances pertaining to the wages, hours, and terms and conditions of employment for public employees. *** [T]his chapter prevails over any and all other conflicting laws, resolutions, provisions, present or future, except as otherwise specified in this chapter or as otherwise specified by the general assembly. ***” (Emphasis added.)
{¶ 10}
{¶ 11} Appellants, when employed as LD and ESL tutors during the pertinent school years, were excluded from the applicable collective bargaining agreements because they were hourly paid employees. Appellants were not members of the bargaining unit represented by the unions when the agreements were negotiated, executed, or in effect.
{¶ 12} Appellants contend that a tutor is a “teacher” under
{¶ 13} In Brown and Tavenner, the court relied on the
“As used in sections 3319.08 to 3319.18, inclusive, of the Revised Code:
“(A) ‘Teacher’ means all persons certified to teach and who are employed in the public schools of this state as instructors, principals, supervisors, superintendents, or in any other educational position for which the state board of education requires certification including persons having a certificate issued pursuant to sections 3319.22 to 3319.31, inclusive, of the Revised Code, and employed in an educational position, as determined by the state board of education, under programs provided for by federal acts or regulations and financed in whole or in part from federal funds, but for which no certification requirements for the position can be made under the provisions of such federal acts or regulations.” (Emphasis added.)
{¶ 14} Although Brown and Tavenner utilized the
“‘Teacher’ means all teachers employed by school district boards of education ***.”
{¶ 15} While the
{¶ 16} Nevertheless,
{¶ 17} The board contends that Judith J. Pryor, an ESL tutor, is not entitled to any back pay because her teaching certificate does not include certification for teaching English to speakers of other languages. The board relies on
“*** [T]eaching validations may be approved for grade levels set forth in rules 3301-23-01 to 3301-23-07 of the Administrative Code and for the following:
“***
“(F) Teaching English to speakers of other languages ***.” (Emphasis added.)
{¶ 18} However,
“(B) Elementary, valid for teaching in grades one to eight;
“(C) Middle grades, valid for teaching the subjects named in such certificate in grades four to nine;
“(D) High school, valid for teaching the subjects named in such certificate in grades seven to twelve[.]”
{¶ 19} While the board contended below that appellant Pryor never held any valid teaching certificate for the 1989-1990 school year, it now concedes that the evidence established that she did possess a teaching certificate. The uncontroverted evidence shows that appellant Pryor held an elementary teaching certificate, valid for teaching in grades one through eight during the relevant period. The certificate contained the additional certification that she was of good moral character and that she had satisfactorily completed the minimum requirements prescribed by the State Board of Education.
{¶ 20} Since appellant Pryor was properly certified under
{¶ 21} “Generally, an hourly rate [for tutors] which is agreed upon in collective bargaining, and incorporated in the collective bargaining agreement, may be less than the rate of compensation provided by the salary schedule. If, however, there is no separate pay rate for tutors set forth in the agreement, or if the tutors in question are not members of the bargaining unit, the tutors are subject to [Brown] and must be paid ‘in accordance with’ the [board‘s duly adopted teachers’ salary] schedule.” 1 Baker, Ohio School Law (1993) 334, Section 7.44.1; see, also, Brown and Tavenner, supra. Since appellants were not members of the collective bargaining unit nor covered by the agreements when they were employed as LD and ESL tutors, they must be paid in accordance with the board‘s teachers’ salary schedules for the subject school years. The board asserts that since the teachers’ salary schedules were adopted as a result of collective bargaining rather than under
{¶ 22}
“Any board of education participating in funds distributed under Chapter 3317. of the Revised Code shall annually adopt a teachers’ salary schedule with provision for increments based upon training and years of service. ***
“On the fifteenth day of October of each year the salary schedule in effect on that date in each school district shall be filed with the superintendent of public instruction. A copy of such schedule shall also annually be filed by the board of education of each local school district with the county superintendent of schools,
who thereupon shall certify to the treasurer of such local district the correct salary to be paid to each teacher in accordance with the adopted schedule.”
{¶ 23} The board participated in funds distributed under
{¶ 24} The foregoing evidence establishes that the teachers’ salary schedules contained in the collective bargaining agreements were filed and adopted in substantial compliance with
{¶ 25} The board contends that even if the court of appeals’ rationale was erroneous, its judgment denying appellants’ complaint for a writ of mandamus was proper because appellants had various adequate remedies at law. A writ of mandamus will not be issued when there is a plain and adequate remedy in the ordinary course of the law.
{¶ 26}
“Upon written complaint to the superintendent of public instruction that the board of education of a district has failed or refused to annually adopt a salary schedule or to pay salaries in accordance with the salary schedule set forth in division (C) of this section, the superintendent of public instruction shall cause to be made an immediate investigation of such complaint. If the superintendent finds that the conditions complained of exist, he shall order the board to correct such conditions within ten days from the date of the finding. No moneys shall be distributed to the district under this chapter until the superintendent has satisfactory evidence of the board of education‘s full compliance with such order.”
{¶ 27} In State ex rel. Tavenner v. Indian Lake Local School Dist. Bd. of Edn. (May 16, 1990), Logan App. No. 8-90-3, unreported, affirmed in part and reversed in part on other grounds in Tavenner, supra, 62 Ohio St.3d 88, 578 N.E.2d 464, the appellate court rejected a similar argument:
“In this regard, we note that R.C. 3317.13(B) provides only for an investigation of either (1) a failure or refusal to adopt an annual salary schedule or (2) a failure to pay salaries in accordance with the state minimum salary schedule. However, the instant claim does not concern either subject contained in R.C. 3317.13(B). Instead, we are concerned with respondents’ failure to pay relator in accordance with the district‘s adopted Teachers’ Salary Schedule. Therefore we do not find the statute to provide a plain and adequate remedy at law. ”
{¶ 29} Appellants’ complaint also contained a claim by appellants Duncan, Eyre, Ford, and Weethee for payments of additional amounts they would have received if the board had credited their years of service as tutors in computing their salaries as teachers under the collective bargaining agreement. These appellants were covered under the collective bargaining agreements and were paid amounts provided in the teachers’ salary schedules. They filed a grievance concerning the matter and it was set for arbitration. The grievance and arbitration procedures were complete, beneficial, and speedy as to this claim. “[A] reviewing court is not authorized to reverse a correct judgment merely because erroneous reasons were assigned as a basis thereof.” Cassels, supra, 69 Ohio St.3d at 222, 631 N.E.2d at 154. Accordingly, the court of appeals did not err in granting the board‘s motion for summary judgment and denying a writ of mandamus as to appellants Duncan, Eyre, Ford, and Weethee‘s claims regarding their teachers’ salaries.
{¶ 31} “The elements of a laches defense are (1) unreasonable delay or lapse of time in asserting a right, (2) absence of an excuse for such delay, (3) knowledge, actual or constructive, of the injury or wrong, and (4) prejudice to the other party.” State ex rel. Cater v. N. Olmsted (1994), 69 Ohio St.3d 315, 325, 631 N.E.2d 1048, 1056. There is no evidence that the board‘s ability to defend against appellants’ mandamus suit was prejudiced by the delay. Prejudice will not be inferred from a mere lapse of time. Madden, supra, 42 Ohio St.3d at 91, 537 N.E.2d at 650.
{¶ 32} The board‘s waiver argument is also meritless. Waiver is a voluntary relinquishment of a known right. Id. at 89, 537 N.E.2d at 648. Brown rejected a similar argument that acceptance and performance of a tutorial service limited contract waived a right to a continuing contract. Id., 40 Ohio St.3d at 27, 531 N.E.2d at 1303. Subsequent appellate court opinions have also rejected waiver defenses in tutor back pay cases. Dist. Bd. of Edn.” docket=“93APE10-1462” court=“Ohio Ct. App.” date=“1994-05-12“>State ex rel. Fink v. Grandview Hts. City School Dist. Bd. of Edn. (May 12, 1994), Franklin App. No. 93APE10-1462, unreported; Cuyahoga Falls Edn. Assn. v. Cuyahoga Falls City School Dist. Bd. of Edn. (Nov. 20, 1991), Summit App. No. 14962, unreported.
{¶ 33} Accordingly, the court of appeals erred in failing to grant appellants a writ of mandamus compelling the board to pay them the difference between their pay as tutors and the pay set forth in the collective bargaining agreements’ teachers’ salary schedules for the period from 1986-1987 through 1990-1991. Since the damage and other issues, e.g., interest, have not yet been resolved, the court of appeals must address these issues on remand. The summary judgment and denial of mandamus relief are affirmed as to appellants Duncan, Eyre, Ford, and Weethee‘s claim for increased compensation during the years they were covered by the collective bargaining agreements.
Judgment affirmed in part, reversed in part and cause remanded.
MOYER, C.J., A.W. SWEENEY, WRIGHT, RESNICK and F.E. SWEENEY, JJ., concur.
DOUGLAS, J., concurs in judgment only.
PFEIFER, J., dissents and would affirm in toto.