Lanting v. Jenison Public Schools, Docket No. 49099

• Decision Date: 22 January 1981
• Docket Number: Docket No. 49099
• Citation: 103 Mich.App. 165,302 N.W.2d 631
• Parties: Janice LANTING, Plaintiff-Appellant, v. JENISON PUBLIC SCHOOLS and the Board of Education of the Jenison PublicSchools, Defendant-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 631

302 N.W.2d 631

103 Mich.App. 165

Janice LANTING, Plaintiff-Appellant, v. JENISON PUBLIC SCHOOLS and the Board of Education of the Jenison PublicSchools, Defendant-Appellees.

Docket No. 49099.

Court of Appeals of Michigan.

Jan. 22, 1981.

Released for Publication March 10, 1981.

Lynwood E. Beekman, Lansing, for plaintiff-appellant.

Harry J. Zeliff, Lansing, for defendants-appellees.

Before R. B. BURNS, P. J., and MacKENZIE and KALLMAN, ^* JJ.

MacKENZIE, Judge.

This case involves the construction of a collective bargaining agreement relative to the nonrenewal of a nontenured teacher.

Plaintiff, Janice Lanting, was a certified probationary (nontenured) teacher employed by defendant Board of Education of the Jenison Public Schools (the board) to teach special education during the 1975-1976 and 1976-1977 school years. On March 28, 1977, the board voted not to extend her a contract for the following year and afforded plaintiff the requisite notice under the teachers' tenure act, M.C.L. §§ 38.81-38.83; M.S.A. §§ 15.1981-15.1983.

As a member of the Jenison Education Association (the union), plaintiff filed a written grievance on April 19, 1977, under the collective bargaining agreement between the union and defendant, alleging that her nonrenewal breached a provision in the agreement providing that "(n)o teacher shall be disciplined without just cause". Following the denial of the grievance by defendant at each step of the procedure, plaintiff made a demand for arbitration with the American Arbitration Association pursuant to Article XXIV of the collective bargaining agreement. On March 2, 1978, the arbitrator held that the agreement deprived him of jurisdiction to decide the merits of the dispute.

Plaintiff filed the complaint in this action on June 27, 1978, alleging in two counts that (1) the arbitrator had erroneously held that he was without jurisdiction under the agreement to decide the dispute and that the matter should be remanded back to the arbitrator, and that (2) if arbitration be denied, the court should find that the board's action violated the collective bargaining agreement and order the board to tender plaintiff a full-time teaching contract for the 1978-1979 school year with the rights and privileges incident thereto (i. e., tenure), expunge from plaintiff's file all reference to defendant's action in discharging plaintiff, and pay damages for the breach, including back pay and all lost fringe benefits.

On June 15, 1979, the trial court granted defendants' motion for summary judgment under GCR 1963, 117.2(1), pursuant to its findings in its opinion that the arbitrator correctly held that the agreement deprived him of jurisdiction to determine matters covered under the teachers' tenure act and that plaintiff was not entitled to a "just cause" determination under that statute. Lipka v. Brown City Community Schools (On Rehearing), 403 Mich. 554, 271 N.W.2d 771 (1978). Upon plaintiff's request for reconsideration, the court issued a subsequent opinion finding that plaintiff's contention that she was entitled to a "just cause" determination of the board's action required reading that provision out of context and was contrary to the intent of the agreement. The court further found that, even if that had been the parties' intent, defendant Jenison Public Schools could not contract with the union to alter the procedure for nonretention of probationary teachers because such a contract would be against the statutory procedure and the public policy of the state. Plaintiff appeals as of right the trial court's determination that plaintiff did not state a claim upon which relief could be granted in Count II of her complaint. ¹

It is well established that tenured, as well as nontenured, teachers have the right under the public employment relations act (the PERA), M.C.L. § 423.201 et seq.; M.S.A. § 17.455(1) et seq., to bargain collectively regarding terms and conditions of employment. Rockwell v. Crestwood School Dist. Board of Education, 393 Mich. 616, 227 N.W.2d 736 (1975). Despite the power of a school board not to renew the contract of a probationary teacher upon providing notice as required by the teachers' tenure act, Lipka, supra, a school board may agree to limit its right to nonrenewal of probationary teachers. Kaleva-Norman-Dickson School Dist. No. 6, Counties of Manistee, Lake & Mason v. Kaleva- Norman-Dickson School Teachers Assoc., 393 Mich. 583, 227 N.W.2d 500 (1975). Further support for this conclusion is derived from the interpretation by our Supreme Court that the PERA is the dominant law which is to govern " 'notwithstanding the provisions of any other law' ". Rockwell, supra, 629, 227 N.W.2d 736.

The issue for our consideration, therefore, is whether it was the intent of the parties, as manifested in the provisions of the collective bargaining agreement, to limit defendant's right to fail to renew the contract of a probationary teacher for "just cause" only, subject to compulsory arbitration. In Kaleva-Norman-Dickson, supra, 587, 227 N.W.2d 500 it was recognized that the question of arbitrability is for the court.

"Arbitration is a matter of contract. A party cannot be required to arbitrate an issue which he has not agreed to submit to arbitration." (Footnotes omitted.)

However, "the judicial inquiry 'is confined to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract. Whether the moving party is right or wrong is a question of contract interpretation for the arbitrator.' " (Emphasis supplied.) Id., 591, 227 N.W.2d 500, citing United Steel Workers of America v. American Mfg. Co. 363 U.S. 564, 580, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960).

The pertinent provisions of the collective bargaining agreement in question read as follows:

"ARTICLE I

"Recognition

"The Board agrees to recognize the Association as the sole and exclusive bargaining representative for all professional teaching staff under contract, exclusive of substitute teachers and of Administrative personnel, and any other person engaged fifty percent (50%) of the time in the direct administration and supervision of professional personnel. The term 'teacher' when used hereinafter in the Agreement shall refer to all professional employees represented by the Association in the bargaining or negotiating unit, as above defined, and references to male teachers shall include female teachers."

"ARTICLE II

"Association and Teacher Rights

"A. Pursuant to the Michigan Public Employment Relations Act, the Board hereby agrees that every employee of the Board shall have the right freely to organize, join and support the Association for the purposes of engaging in collective bargaining or negotiations.

"B. Nothing contained herein shall be construed to deny or restrict to any teacher rights he may have under the Michigan General School Laws. The rights granted to teachers hereunder shall be deemed to be in addition to those provided elsewhere."

"ARTICLE III

"Management Rights and Responsibilities

"A. The Board, on its own behalf and on behalf of the electors of the district, hereby retains and reserves unto itself, without limitation, all power, rights, authority, duties and responsibilities conferred upon and vested in it by the laws and the Constitution of the State of Michigan, and of the United States, including, but without limiting the generality of the foregoing, the right to the executive management and administrative control of the school system and its properties and facilities and the activities of its employees. To hire all employees and, subject to the provisions of law, to determine their qualifications and the conditions for their continued employment, or their dismissal or demotion ; and to promote and transfer all such employees. To establish grades and courses of instruction; to establish special programs; and to provide for athletic, recreational and social events for students, all as deemed necessary or advisable by the Board and to decide upon the means and methods of instruction, the selection of textbooks and other teaching materials, and the use of teaching aids of every kind and nature. To determine class schedules, the hours of instruction, and the duties, responsibilities and assignments of teachers and other employees with respect thereto, and with respect to administrative and nonteaching activities.

"B. The exercise of the foregoing powers, rights, authority, duties and responsibilities by the Board, the adoption of policies, rules, regulations and practices in furtherance thereof, and the use of judgment and discretion in connection therewith shall be limited only by the specific and express terms of this Agreement and then only to the extent such specific and express terms hereof are in conformance with the Constitution and Laws of the United States. It is further recognized that the Board, in meeting such responsibilities and, in exercising its powers and rights, acts through its administrative staff."

"ARTICLE XIV

"Teacher Evaluation and Progress

"The parties recognize the importance and value of a procedure for assisting and evaluating the progress and success of both newly employed and experienced personnel. Therefore, to this end, the following procedure has been agreed to in an effort to accomplish the goals. "A. Procedure for evaluation is found in Administrative Policy No. 4117.

"B. A 'teaching coach' shall be assigned to every probationary teacher upon entrance of the teacher into the system. The 'teaching coach' shall be a tenure teacher and shall be engaged in teaching within the same building or discipline as the probationary teacher. It shall be the duty of the teaching coach to assist and counsel the probationary teacher in acclimating to the teaching profession and the school system.

"C. Each teacher shall have the right, upon request, to review the contents of his own personal file. A representative of...