534 N.E.2d 96 | Ohio Ct. App. | 1987
Lead Opinion
On December 12, 1985, relator filed a complaint seeking a writ of mandamus, and respondent subsequently filed an answer and an amended answer to relator's complaint. On September 8, 1986, the parties filed a stipulation of facts which provides, in pertinent part, as follows.
Respondent is the corporate entity charged with the management and control of schools in its district as well as the employment of teachers in the school district. Relator is a mathematics teacher employed in the school district. On July 23, 1980, relator was issued an eight-year professional teaching certificate by the State Board of Education. On July 20, 1981, relator was initially employed by respondent, being given a one-year limited contract for the 1981-1982 school year. At the time of her employment with respondent, relator had not attained continuing contract status in any other Ohio school district.
On April 19, 1982, respondent granted relator a two-year limited contract to teach for the 1982-1983 and 1983-1984 school years. Relator taught during both the 1981-1982 and 1982-1983 school years, but took a maternity leave of absence and did not teach during the 1983-1984 school year. On March 28, 1984, relator sent a letter to school district superintendent Jerry Russell stating her intention to return to work for the 1984-1985 school year and requesting a half-day teaching position.
On April 16, 1984, at a duly called meeting of respondent, relator was granted a three-year limited contract to teach in the school district from August 1984 until August 1987. A written contract reflecting respondent's actions was prepared and signed by the applicable school district officials, but the contract was not delivered to or signed by relator. Furthermore, relator had no actual knowledge of the April 16, 1984 action by respondent and was never issued a probationary limited contract accompanied by written notice containing recommendations regarding professional improvement.
On August 6, 1984, respondent held a meeting and adopted a resolution which provided as follows:
"BE IT RESOLVED, that the contracts of the following teachers be approved for half-time assignments:
"Carol Peal — Elementary Music Half-time (50%) Belpre Elementary
"Linda Williams — Middle School Math Half-time (56.25%)"
A one-year limited contract for the 1984-1985 school year reflecting the August 6, 1984 resolution adopted by respondent was prepared and was signed by both parties. Relator then taught half-time (56.25 percent) in the school district and was paid $12,003.19 for the 1984-1985 school year. No action regarding the employment of relator was taken at the April 1985 meeting of respondent, and relator asked respondent why it had taken no action. The Belpre Education Association, the exclusive bargaining agent for teachers in the school district, including relator, demanded that respondent issue relator a continuing contract. *3
On July 29, 1985, respondent held a meeting at which it adopted a resolution granting relator a three-year limited contract for the 1985-1986, 1986-1987, and 1987-1988 school years. Respondent prepared and signed a contract reflecting the July 29, 1985 resolution, but relator did not sign such contract.
During the applicable period of time, from August 1, 1982 until July 31, 1985, a collective bargaining agreement between respondent and the Belpre Education Association was in effect which provided, in pertinent part, as follows:
"ARTICLE VII INDIVIDUAL CONTRACTS
"8.1 All teachers employed by the Board shall receive written contracts.
The contracts shall include:
"A. Name of the teacher
"B. Name of the school district
"C. Type of contract
"D. Duration of contract
"E. Annual salary and basis for determining the amount. Such information shall be given only for the initial year of a multi-year contract and said information will be provided in the annual salary notification thereafter during the term of the contract.
"F. Provision for the appropriate signatures and date.
"* * *
"8.3 The issuance of renewed limited contracts, new continuing contracts, and supplemental contracts shall be completed by June 1. Signed contracts shall be returned by teachers no later than June 15. Salary and supplemental salary notices shall be issued [to] each teacher not later than twenty (20) working days following ratification of the contract by the Board.
"* * *
"8.5 Teacher contracts will be issued in the following sequence: one year, two years, three years, and five years. On the basis of evaluation, the contract sequence may be interrupted at each level by a one-year probationary contract. If at any time it is necessary to issue a probationary contract, a teacher will be notified in writing of the change and appropriate reasons by not later than April 30 of the year the teacher's contract is up for renewal. Failure of the Board to give a teacher written notice of nonrenewal or of the issuance of a probationary contract shall result in the teacher being issued the length contract in accordance with this article.
"* * *
"29.1 ARTICLE XXIX PROVISIONS CONTRARY TO LAW
"In the event there is a conflict between a provision of this agreement and any applicable state law, rule or regulation of any governing agency, the parties shall meet for the purpose of bringing the affected provision into compliance with the law. Discussion in this regard will be limited to the affected provision in this contract.
"* * *
"ARTICLE XXXI TEACHING EXPERIENCE
"The Belpre Schools will recognize `years of teaching experience' as follows:
"* * *
"31.3 One year of teaching experience will be recognized for each two years of one-half (1/2) day assignment of at least one hundred twenty (120) days under a teacher's contract."
The collective bargaining agreement further provided a four-level grievance procedure with the fourth level being arbitration of a dispute if the aggrieved party requested arbitration within ten days after the time limit for respondent's response at level three of the grievance procedure. Respondent and the Belpre Education Association entered into a new collective *4 bargaining agreement effective from August 1, 1985 until July 31, 1987, which contained substantially similar provisions to the prior collective bargaining agreement.
On September 9, 1985, relator filed a grievance in which she claimed that she was entitled to a continuing contract. The grievance was submitted by relator through the first three levels of the grievance procedure set forth in the collective bargaining agreements, but relator did not submit the grievance to the fourth and final level of the contractual grievance procedure, binding arbitration. Relator continued to teach as a mathematics teacher, full-time in the school district, from the 1985-1986 school year until the present time.
R.C.
"Mandamus is a writ, issued in the name of the state to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station."
In order for a relator to establish entitlement to the issuance of a writ of mandamus, he must demonstrate: (1) that he has a clear legal right to the relief prayed for; (2) that the respondent is under a clear legal duty to perform the requested act; and (3) that the relator has no plain and adequate remedy in the ordinary course of law. State, ex rel. O.M. Scott SonsCo., v. Indus. Comm. (1986),
Respondent initially argues that relator is not entitled to a writ of mandamus ordering the issuance of a continuing contract as of June 1, 1985 because relator does not have a clear legal right to the relief prayed for. R.C.
"Teachers eligible for continuing service status in any schooldistrict shall be those teachers qualified as to certification,who within the last five years have taught for at least threeyears in the district, and those teachers who, having attained continuing contract status elsewhere, have served two years in the district, but the board of education, upon the recommendation of the superintendent of schools, may at the time of employment or at any time within such two-year period, declare any of the latter teachers eligible." (Emphasis added.)
A person is eligible for a continuing contract under R.C.
In the instant case, where relator taught full-time for school years *5
1981-1982 and 1982-1983, and half-time (56.25 percent) for school year 1984-1985, given the liberal construction to be afforded the applicable provisions, which have evolved from the Ohio Teacher Tenure Act of 1941, in favor of teachers, Rodgers, supra, at 138, 10 OBR at 459,
A person eligible for a continuing contract can either be denied a contract by proper notification, be issued a limited contract of up to two years if it is accompanied by a written notice containing recommendations regarding professional improvement, or be granted a continuing contract. Voss, supra, at 276, 20 O.O. 3d at 268,
Respondent argues, however, that R.C.
R.C.
"(A) An agreement between a public employer and an exclusive representative entered into pursuant to Chapter 4117. of the Revised Code governs the wages, hours, and terms and conditions of public employment covered by the agreement. If the agreement provides for a final and binding arbitration of grievances, public employers, employees, and employee organizations are subject solely to that grievance procedure and the state personnel board of review or civil service commissions have no jurisdiction to receive and determine any appeals relating to matters that were the subject of a final and binding grievance procedure. Where no agreement exists or where an agreement makesno specification about a matter, the public employer and publicemployees are subject to all applicable state or local laws orordinances pertaining to the wages, hours, and terms andconditions of employment for public employees. Laws pertainingto civil rights, affirmative action, unemployment compensation, workers' compensation, the retirement of public employees, residency requirements, the minimum educational requirementscontained in the Revised Code pertaining to public educationincluding the requirement of a certificate by the fiscal officerof a school district pursuant to section
Prior to the enactment of R.C. Chapter 4117, public employees had been permitted to collectively bargain with their employer only when the employer, in its discretion, chose to engage in such bargaining. Dayton Teachers Assn. v. Dayton Bd. of Edn.
(1975),
Relator argues that the "minimum educational requirements" and "minimum standards promulgated by the state board of education" exceptions contained in R.C.
The wording of R.C.
With respect to the latter provision, relator taught pursuant to a "half-time (56.25%)" assignment for school year 1984-1985. Accordingly, it is arguable that such assignment was for more than "one-half" day, thereby rendering the "years of teaching experience" definitional section inapplicable to relator and thus, pursuant to R.C.
Although relator does not raise *8
such argument, it should be noted that Article XXIX of the 1982-1985 collective bargaining agreement provides that where there is a "conflict" between a provision of the agreement and any applicable state law, the parties shall meet for the purpose of bringing the affected contractual provision "into compliance with the law." Such "Contrary to Law" provisions appear in the vast majority of collective bargaining agreements, with their purpose seemingly to avoid illegal or void contractual provisions. Thus, although it might be argued that the provision herein evinces intent on the part of respondent and the Belpre Education Association for conflicting state law provisions, such as R.C.
Moreover, a writ of mandamus must not be issued when there is a plain and adequate remedy in the ordinary course of the law. R.C.
For a remedy at law to be adequate, the remedy should be complete in its nature, beneficial and speedy. State, ex rel.Dayton Fraternal Order of Police Lodge No. 44, v. State Emp.Relations Bd. (1986),
Because of the speed, low cost and the general competence, indeed expertise, of most arbitrators, arbitration is *9
the most favored means of contract enforcement available to educational institutions. 2 Rapp, Education Law (1987), Section 7.07[2]. Arbitration has been favored by the courts in this state from early times. Youghiogheny Ohio Coal Co. v. Oszust (1986),
Initially, we must determine whether the dispute in the case at bar is arbitrable. The 1982-1985 collective bargaining agreement defined "grievance" as follows:
"17.3 DEFINITIONS:
"1. A [`]GRIEVANCE['] is an alleged violation,misinterpretation or misapplication of the written agreement entered into between the Board of Education and the recognized employee organization, setting forth the understanding of the parties upon those matters nenegotiated [sic] and agreed to." (Emphasis added.)
The 1985-1987 collective bargaining agreement contains a substantially similar definition.
Pursuant to the collective bargaining agreement, respondent was obliged to issue new continuing contracts "by June 1." Relator argued that respondent breached the agreement and filed a grievance. Although the issue of whether relator was entitled to a continuing contract as of June 1, 1985 involves, in part, a consideration of the application of R.C.
Under federal law, when language is ambiguous and unclear, any doubts concerning the scope of arbitrability should be resolved in favor of arbitration. McGinnis v. E.F. Hutton Co., Inc.
(C.A. 6, 1987),
Having determined that relator's grievance was arbitrable, we now consider whether, under the circumstances, relator was required to exhaust her contractual remedies, including arbitration, before she could seek a writ of mandamus. In holding that injunctive relief was not available to a teacher where he had not exhausted grievance and arbitration procedures in a collective bargaining agreement, this court, in Baisden v. OakHill Union Local School Dist. Bd. of Edn. (June 7, 1985), Jackson App. No. 491, unreported, at 9, stated as follows:
"* * * Individual employees wishing to assert contract grievances must attempt use of the contract grievance procedure agreed upon by employer and union as the mode of redress. *10 Republic Steel Corp. v. Maddox (1965),
"In the case at bar, appellant admitted having knowledge of the grievance and arbitration procedures. However, while invested with such knowledge, appellant did not initiate those procedures. Injunctive relief will not lie where the aggrieved party has a full and adequate remedy at law. Meeker v. Scudder (1923),
However, the collective bargaining agreements in the instant case contain the following provision in the outlined grievance procedure:
"Nothing contained in this procedure shall be construed as limiting the rights of any teacher from using other professional or legal rights in resolving a complaint or problem."
The issue of whether an aggrieved person must first exhaust contractual remedies including arbitration before bringing legal action has most frequently arisen in federal suits for breach of collective bargaining agreements pursuant to Section 185, Title 29, U.S. Code. See Annotation, What Circumstances Justify Employee's Failure to Exhaust Remedies Provided in Collective Bargaining Agreement Before Bringing Grievance Suit Against Employer in Federal Court, Under § 301 of the Labor Management Relations Act of 1947 (1981), 52 A.L.R. Fed. 591; Republic SteelCorp. v. Maddox (1965),
However, where the grievance procedures are not intended as the exclusive remedy, exhaustion for such breach of collective bargaining agreement actions is excused. Annotation, supra, at Section 6[a]; Maddox, supra, at 657-658; Vaca v. Sipes (1967),
Relator essentially argues that because the contractual remedy explicitly does not bar alternative legal action, the failure to exhaust the arbitration level of the grievance procedure, as in actions pursuant to Section 185, Title 29, U.S. Code, should not act to bar the mandamus action. However, while we agree that such nonexclusive remedy clauses in collective bargaining agreements would not be a general bar to judicial intervention, see, e.g.,Woodruff v. Cabell Huntington Hosp. Bd. of Trustees (W.Va. 1984),
We are not persuaded that the presence of nonexclusive remedy clauses in collective bargaining agreements renders the remedy of arbitration any less adequate or that such constitute "special circumstances" sufficient to waive the exhaustion requirement. See, e.g., Fortunato v. Bd. of Public Safety (1980),
In Woodruff, supra, the West Virginia Supreme Court of Appeals initially held that a nonexclusive remedy provision analogous to the instant case did not bar judicial intervention and then, in determining if grievance and arbitration procedures in a collective bargaining agreement constituted an adequate remedy so as to preclude mandamus, held as follows:
"We recognize, as we have in the past, that `While it is true that mandamus is not available where another specific and adequate remedy exists, if such other remedy is not equally as beneficial, convenient, and effective, mandamus will lie.' Syl. pt. 4, Cooper v. Gwinn, W.Va.,
Accordingly, the Woodruff court found extraordinary circumstances that rendered the grievance and arbitration procedures inadequate. Here, unlike Woodruff, relator does not argue, nor is there any indication, that the arbitration procedure contained in the collective bargaining agreements was futile or inadequate, or that her claim involved constitutional issues such as freedom of speech, or involved retaliatory action by respondent.
Any holding that the arbitration remedy herein was inadequate would effectively undercut that which union lobbyists themselves strongly advocated, see O'Reilly, supra, i.e., the favored arbitration process. Youghiogheny Ohio Coal Co., supra. Accordingly, in that relator has not shown a clear legal right to a continuing contract, *12 and that she failed to exhaust her available contractual remedies by not pursuing the fourth level of the grievance procedure where arbitration would have provided a complete and adequate remedy at law had relator timely asserted the right to arbitration, relator is not entitled to a writ of mandamus.
Writ denied.
ABELE, J., concurs.
GREY, J., dissents.
"Further, respondents' contention requires an unreasonable construction of R.C. Chapter 4117. The wording in the cited portion of R.C.
The "unreasonable or absurd consequences" referred to in DispatchPrinting Co., supra, were those arising from the argument therein that a provision in a collective bargaining agreement between a city and its municipal police force requiring the city to take all reasonable precautions to ensure the confidentiality of the personnel records of police officers took precedence over the mandates of R.C.
If we were to accept relator's argument herein, where there is no infringement of rights of a party not engaged in the collective bargaining process, we would effectively render R.C.
"Relator became eligible for a continuing contract after his second year of employment by the Van Buren local schools. But that eligibility came into existence during the term of his three-year contract with respondent board. His status could not be changed unilaterally until the contract had expired. At no time was relator ever offered a continuing contract by respondent. He was offered, and he accepted and taught under, athree-year contract. * * *" (Emphasis added and footnote omitted.)
The teacher in Paul, supra, had his right to a continuing contract postponed until the conclusion of the limited contract that he had accepted. Here, unlike Paul, relator did not accept the three-year limited teaching contract offered to her by respondent.
Dissenting Opinion
I dissent, first on procedural grounds.
The majority denies the writ because it holds that relator had an adequate remedy by way of arbitration.
In Frontier Local Edn. Assn. v. Frontier Local Bd. of Edn. (May 1, 1985), Washington App. No. 84 X 11, unreported, this court held that a provision in a collective bargaining agreement regarding arbitration of teacher assignments was in conflict with R.C.
I also dissent on the facts in this case. Under Section 31.3 of the collective bargaining agreement, a teacher is allowed one year's credit for each two years of one-half day teaching. Relator's contract is inconsistent since it describes her duties as "half-time (56.25%)."
The question is: are the parties bound by the phrase "half-time" or by the percentage "56.25%." As noted in State, exrel. Rodgers, v. Hubbard Local Bd. of Edn. (1984),
"The record shows that appellant is a teacher, holding a professional teaching certificate, who has taught for at least three of the last five years in appellee's district. She was a part-time employee for some of those years; however, her duties were substantial and she performed them on a regular basis. Appellant has accomplished that which makes her eligible for tenure under R.C.
In short, Relator Williams would be entitled to a continuing contract, unless prohibited by the collective bargaining agreement. While the contract is very explicit as to the minimum amount of teaching experience necessary to establish "half-time" status, it is vague about what constitutes full-time status, and absolutely silent on the status of teachers who *13 work more than half-time but less than full-time.
When a contract is silent on an issue, the parties to the contract are generally presumed to intend the ordinary meaning of the words used in their contract. See the discussion in 18 Ohio Jurisprudence 3d (1980), Contracts, Section 141 et seq. Further, in Garay, supra, the Supreme Court stated:
"* * * Where part-time teaching experience is regular and substantial, as in the instant case, years spent teaching less than full school days will be counted in determining eligibility for a continuing contract. State, ex rel. Rodgers, v. HubbardLocal Bd. of Edn. (1984),
Since the Supreme Court has used "regular and substantial" as a standard, I would presume that this is what the parties intended. Since relator did work regularly and substantially, and since the contract itself does not bar her from being credited with a full year's experience, I can see no reason why she is not entitled to a full year's credit.
The majority opinion states that there arises a conflict over whether R.C.
There is no conflict, or any question of statutory construction. This is a case of contract construction. Construing the words of this contract according to the ordinary rules of construction, relator is entitled to full-time credit, and even if there were no contract, she would still be entitled to it. She is not barred from it by any language in the contract, and is entitled to it as the words "regular and substantial" are ordinarily used. One is left then to wonder how the majority arrives at the conclusion that relator does not have a clear legal right to a continuing contract.
Thus, I dissent.
