Hortonville Ed. Ass'n v. Hortonville Joint School Dist. No. 1

• Citation: 66 Wis.2d 469,225 N.W.2d 658
• Decision Date: 05 February 1975
• Docket Number: No. 635,635
• Parties: , 88 L.R.R.M. (BNA) 3075, 88 L.R.R.M. (BNA) 3568, 76 Lab.Cas. P 53,591 HORTONVILLE EDUCATION ASSN. et al., Appellants, v. HORTONVILLE JOINT SCHOOL DISTRICT NO. 1 et al., Respondents.
• Court: United States State Supreme Court of Wisconsin

Page 658

225 N.W.2d 658

66 Wis.2d 469, 88 L.R.R.M. (BNA) 3075,

88 L.R.R.M. (BNA) 3568,

76 Lab.Cas. P 53,591

HORTONVILLE EDUCATION ASSN. et al., Appellants, v. HORTONVILLE JOINT SCHOOL DISTRICT NO. 1 et al., Respondents.

No. 635.

Supreme Court of Wisconsin.

Feb. 5, 1975.

As Modified on Denial of Rehearing March 28, 1975.

Robert H. Fribert, Thomas W. St. John, Milwaukee (Samson, Friebert, Finerty & Burns, Milwaukee, of counsel), for appellants.

Melli, Shiels, Walker & Pease, Jack D. Walker and James K. Ruhly, Madison, for respondents.

Lawton & Cates, Madison, for amicus curiae Wis. Coalition of Public Employees.

Ela, Esch, Hart & Clark, James F. Clark and Karen Mercer, Madison, for amicus curiae Wis. Assn. of School Bds.

Jean G. Setterholm, Asst. Legal Counsel, Madison, for amicus curiae League of Wis. Municipalities.

Zubrensky, Padden, Graf & Bratt, Milwaukee, amicus curiae for International Union, UAW.

BEILFUSS, Justice.

The issues in this court are:

1. Does Wisconsin law allow the discharge of municipal employees who engage in a strike?

2. Does the action by the Hortonville school board in discharging teachers instead of obtaining a judicial order constitute selective enforcement of the Wisconsin prohibition of the right to strike, thereby denying to the teachers their right to equal protection of the laws?

3. Does the state's prohibition against strikes by teachers, without provision for binding arbitration and de novo review of reasonableness of punishment, when such benefits are provided for other public employees, constitute a violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution?

4. Were the strikers denied due process of law because they were discharged by the Hortoinville school board which is not a neutral, impartial and detached decisionmaker?

5. Did the action taken by the Hortonville board of education constitute a violation of the open meeting law?

The general rule is that issues not presented to the trial court will not be considered for the first time on appeal. Estate of Scherffius (1974), 62 Wis.2d 687, 696, 697, 215 N.W.2d 547; Resseguie v. American can Mut. Liability Ins. Co. (1971), 51 Wis.2d 92, 103, 104, 186 N.W.2d 236. With respect to constitutional issues, this court had said it may, in its discretion, consider such issues for the first time on appeal if it is in the interest of justice to do so and there are no unresolved factual issues. State v. Morales (1971), 51 Wis.2d 650, 654, 187 N.W.2d 841; Bradley v. State (1967), 36 Wis.2d 345, 359, 359a, 153 N.W.2d 38, 155 N.W.2d 564. We believe, in this case, it is in the interest of justice to consider the issues raised as set forth above.

Does Wisconsin law allow the disharge of municipal employees who engage in a strike?

As to all municipal employees, sec. 111.70(4)(l), Stats., provides:

'Strikes prohibited. Nothing contained in this subchapter shall constitute a grant of the right to strike by any county or municipal employe and such strikes are hereby expressly prohibited.'

As to state employees, sec. 111.89, Stats., provides:

'Strike prohibited. (1) Upon establishing that a strike is in progress, the employer may at his option either seek an injunction or file an unfair labor practice charge with the commission under s. 111.84(2)(e) or both. In this regard it shall be the responsibility of the department of administrtion to decide whether to seek an injunction or file an unfair labor practice charge. The existence of an administrative remedy shall not constitute grounds for denial of injunctive relief.

'(2) The occurrence of a strike and the participation therein by a state employe do not affect the rights given to the employer to deal with the strike, including:

'(a) The right to impose discipline, including discharge, or suspension without pay, of any employe participating therein;

'(b) The right to cancel the reinstatement eligibility of any employe engaging therein; and

'(c) The right of the employer to request the imposition of fines, either against the labor organization or the employe engaging therein, or to sue for damages because of such strike activity.'

The appellants contend that since employers of state employees are specifically given the right to discharge in the event of a strike, while no similar provision applies to municipal employees, that municipal employers are not allowed to discharge striking employees but are restricted to the remedy of injunction.

The respondents cite Millar v. Joint School Dist. (1957), 2 Wis.2d 303, 312, 86 N.W.2d 455, 460, for the proposition that:

'A school board has implied power to dismiss a teacher before the expiration of his term of service for good and sufficient cause. .. . If a teacher fails to perform his duties under his contract, the board may discharge him from further service.'

They further contend that sec. 111.70(4)(l), Stats., in no way diminishes that right. We believe they are correct in that contention. Sec. 118.22(2) provides:

'On or before March 15 of the school year during which a teacher holds a contract, the board by which the teacher is employed or an employe at the direction of the board shall give the teacher written notice of renewal or refusal to renew his contract for the ensuing school year. If no such notice is given on or before March 15, the contract then in force shall continue for the ensuing school year. A teacher who receives a notice of renewal of contract for the ensuing school year, or a teacher who does not receive a notice of renewal or refusal to renew his contract for the ensuing school year on or before March 15, shall accept or reject in writing such contract not later than the following April 15. No teacher may be employed or dismissed except by a majority vote of the full membership of the board. Nothing in this section prevents the modification or termination of a contract by mutual agreement of the teacher and the board. No such board may enter into a contract of employment with a teacher for any period of time as to which the teacher is then under a contract of employment with another board.'

The reference to the fact that a teacher may be 'dismissed' clearly indicates the existence of the right to discharge. Both Millar, supra, and Richards v. Board of Education (1973), 58 Wis.2d 444, 460b, 206 N.W.2d 597, indicate clearly that the term 'dismiss' means to remove from employment and not to merely refuse to renew a contract.

Furthermore, the power of the board to discharge a teacher for 'just cause' is clearly preserved in the master contract ³ between HEA and the school district.

From the statutes, the cases cited, and the cotract, we conclude the school board did have the power to discharge the teachers who engaged in the prohibited strike.

The appellants contend the action by the Hortonville school board in discharging the teachers instead of obtaining a judicial order constitutes selective enforcement of the Wisconsin prohibition of the right to strike, thereby denying to the teachers their right to equal protection of the laws as guaranteed by the state and federal constitutions.

The appellants argue that this is the first known instance in Wisconsin where striking teachers have been discharged. They assert that the usual procedure is for the school board to seek an injunction, and that the deviation from this practice in this case amounts to selective enforcement of the law and a denial of equal protection.

The respondents, in argument, deny this is the first instance of discharge because of strike activity. They also urge that there is an unresolved factual dispute involved, i.e., what is the normal procedure in the case of teacher strikes. For the purpose of this opinion, we will assume the factual allegation of the appellants is correct.

Several factors bear on the question of whether the discharge amounted to a denial of equal protection due to selective enforcement of the law. The basic question that must be answered in the affirmative before a denial of equal protection can be found is whether a difference in treatment amounts to invidious discrimination. Harper v. Virginia, etc., Board of Elections (1966), 383 U.S. 663, 666, 86 S.Ct. 1079, 16 L.Ed.2d 169.

Arguably at least, there were other remedies the school board could have pursued. It could have sought an injunction, it could have sought fact-finding and mediation before the Wisconsin Employment Relations Commission, ⁴ it could have continued collective bargaining or it could have discharged the teachers for violating the statutory prohibition against public employee strikes as was done here. The fact the school board pursued one of the remedies does not ipso facto mean the teachers were denied equal protection. This is especially true in this case because we do not have a record which reveals all the pertinent and relevant facts upon which the board acted. What might be a fair and reasonable response on the part of the board might not be under a different factual background. Further, the right to discharge here is essentially contractual. Whether the master contract between the board and the Hortonville Education Association and the contracts between the individual school teachers and the board are comparable to contracts involved in other cases where striking teachers were disciplined or discharged cannot be determined from the record in this case.

With one exception not material here, all of the striking teachers were treated the same. They were all given the same notices, all had the same opportunity to be heard, all were discharged and all given the right to apply for reinstatement. The record does not reveal invidious discrimination and no denial of equal protection appears.

The appellants also contend that they were denied equal protection of the law in two additional respects: First, in that they are denied the right to strike, contrary to their counterpart in the private...