Board of Ed. of Louisville v. Louisville Ed. Ass'n

• Decision Date: 30 September 1977
• Citation: 574 S.W.2d 310
• Parties: 96 L.R.R.M. (BNA) 2980, 97 L.R.R.M. (BNA) 2755 BOARD OF EDUCATION OF LOUISVILLE, Kentucky, etc., Appellant, v. LOUISVILLE EDUCATION ASSOCIATION et al., Appellees.
• Court: Kentucky Court of Appeals

Page 310

574 S.W.2d 310

96 L.R.R.M. (BNA) 2980, 97 L.R.R.M. (BNA) 2755

BOARD OF EDUCATION OF LOUISVILLE, Kentucky, etc., Appellant, v. LOUISVILLE EDUCATION ASSOCIATION et al., Appellees.

Court of Appeals of Kentucky.

Sept. 30, 1977.

As Modified on Denial of Rehearing Feb. 10, 1978.

Henry A. Triplett, Hogan, Taylor, Denzer & Bennett, Dan C. McCubbin, Louisville, for appellant.

John Frith Stewart, Walter Lapp Sales, Louisville, for appellees.

Before COOPER, HOWERTON and REYNOLDS, JJ.

REYNOLDS, Judge.

The Board of Education of Louisville, Kentucky appeals from a judgment of Jefferson Circuit Court which reinstated two non-tenured teachers with an award of back pay.

In February 1974 the appellee, Louisville Education Association (identified as L.E.A.) and the appellant, Louisville Board of Education (identified as the Board), entered into a Professional Agreement pertaining to wages, hours and working conditions of certificated teachers employed in the system. Appellees Selker and Reese, non-tenured, certificated teachers, were employed for the first time by the Board and awarded teaching contracts for the 1973-1974 school year. Appellees' performances were determined to be unsatisfactory. The Board, following the statutory procedure of KRS 161.750(2), voted not to re-employ and gave statutory notice to the appellees.

Appellees, plaintiffs below, maintained in their complaint that the Board's decision of non-re-employment was a "grievance" and that the Board failed to utilize the five-step grievance procedure set forth in the contract between the parties, and the appellant asserts that the trial court erred in its judgment upon this issue.

We find, as to this sole issue, that the contract (Professional Agreement) defines a grievance as follows:

Grievance is a claim based upon an event or condition which affects the welfare and/or conditions of employment of a certificated person covered under the terms of this agreement or a group of certificated persons covered under the terms of this agreement and/or the interpretations, meaning, or application of any of the provisions of this agreement or any subsequent agreement entered into pursuant to this agreement.

We find the definition of grievance as outlined in the Professional Agreement to be so generalized as to mean all things to all people. The case of Pinto v. Wynstra, 43 Misc.2d 363, 250 N.Y.S.2d 1012 (1964) held that a non-tenured teacher, whose services were terminated, did not have a grievance within the meaning of the statute providing for settlement of differences between teachers and their employer through procedures under which employees might present grievances. The statutory definition of grievance therein was broad in its scope of coverage but did contain language that the term grievance did not include, among other things, any matter which is otherwise reviewable pursuant to law or any rule or regulation having the force and effect of law. The Professional Agreement provides:

Under Kentucky law the Board shall have and exercise the exclusive control of the public schools within the Louisville School District. This Agreement in no way attempts to alter or diminish such statutory authority.

KRS 161.750, which directs itself to teachers' limited contracts, utilizes the terms, "re-employ" and "not to re-employ." From this record it is evident that the Board adhered to the requirements set forth in the statute and determined not to re-employ Selker and Reese. From the contract we are unable to find a specific provision requiring the Board to follow the five-step grievance procedure in a case of this specific nature where the Board voted "not to re-employ" the appellees. Were we to adopt even the most liberal construction of the term "grievance", we would be constrained to alter the statutory steps imposed upon the Board by KRS 161.750, by further requiring it to take the additional steps set forth in the Professional Agreement. In the case of Ex Parte Woo Jan, 228 F. 927, 941 (E.D.Ky., 1916), the court stated that the word "alter" was broad enough to cover a mere addition and said that a thing is made different from what it was when nothing more is done than to add something to it. Also, see 3 Words and Phrases "Alter ", p. 400.

Gillan v. Board of Regents of Normal Schools, 88 Wis. 7, 58 N.W. 1042 (1894) stands for the proposition that the right of dismissal given to a board is absolute and cannot be limited by contract. There is neither an infringement or issue of constitutional guaranty in this action. See Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Additionally, cause is not required for denial of re-employment under a limited contract. Johnson v. Dixon, Ky., 501 S.W.2d 256 (1973). The sole issue, arising from the facts in this case, does not constitute a grievance.

The judgment of the trial court is reversed, and the court is directed to enter summary judgment for the appellants, dismissing the appellees' complaint and amended complaints.

COOPER, J., concurs.

HOWERTON, J., dissents.

HOWERTON, Judge, dissenting.

I must respectfully dissent. I believe the majority has failed to properly recognize the contract between the Board of Education and the Teachers Association, and to the extent the contract has been recognized, it has been interpreted too narrowly.

The basic question, however, is whether the grievance procedure in the contract (Professional Agreement) applies to the termination or non-renewal of a non-tenured certificated teacher holding a limited employment contract. The majority concluded that it does not. I disagree.

The definition of a "grievance" contained in the Professional Agreement reads:

Grievance is a claim...