Mack v. Joint School Dist. No. 3, Village of Hales Corners, Cities of Greenfield and Franklin, Milwaukee County

Citation92 Wis.2d 476,285 N.W.2d 604
Decision Date15 January 1980
Docket NumberNo. 77-104,77-104
Parties, 105 L.R.R.M. (BNA) 2888 Paulette MACK and Sharon Schermerhorn, Plaintiffs-Appellants, Debra Dobbs, Don Thompson, Linda Huber, Michael Cain, John Di Padova, Kay Hoff, Lynn Peck, Gail Hertig, Joan Kosobucki, Mike Buehler, William Donnelly and Audrey Kortes, Plaintiffs, v. JOINT SCHOOL DISTRICT NO. 3, VILLAGE OF HALES CORNERS, CITIES OF GREENFIELD AND FRANKLIN, MILWAUKEE COUNTY, Defendant-Respondent.
CourtWisconsin Supreme Court

Paulette Mack and Sharon Schermerhorn, plaintiffs-appellants, appeal from a judgment granting the motion of the Joint School District No. 3, Village of Hales Corners, Cities of Greenfield and Franklin, Milwaukee County, defendant-respondent, for summary judgment on its counterclaim asking for judgment declaring that the provisions of secs. 111.70, 118.22 and 118.23, Stats., permitted the School District to lay off teachers in accordance with the provisions of a layoff clause in the collective bargaining agreement between the School Board of the School District and the teachers' union. Appellants also appeal from an order denying their motion for a rehearing.

John S. Williamson, Jr., Milwaukee, argued, for appellants; Goldberg, Previant & Uelmen, S. C., Milwaukee, on briefs.

Michael R. Wherry, Mark F. Vetter, Milwaukee, argued, for respondent; Mulcahy & Wherry, S. C., Milwaukee, on brief.


On April 22, 1976, fourteen teachers, each a member of the Whitnall Area Education Association and each of whom was employed as a full time teacher for respondent Joint School District during the 1975-1976 school year, brought an action against respondent for the purpose of obtaining a declaratory judgment, declaring that their individual teacher's contracts were in full force and effect for the 1976-1977 school year. Plaintiffs also sought an order permanently directing respondent to specifically perform its contract with each plaintiff for the 1976-1977 school year.

Respondent filed an answer and counterclaim praying for judgment, declaring that secs. 111.70, 118.22 and 118.23, Stats., permitted respondent to lay off teachers in accordance with the provisions of Section 8.5 Layoff Clause in the 1975-1976 collective bargaining agreement between the School Board of respondent Joint School District and the Whitnall Area Education Association.

Both parties moved for summary judgment and the following facts appear in the pleadings and supporting affidavits.

Each of the plaintiffs entered into an individual teacher's contract of employment with the respondent for the 1975-1976 school year between March 13, 1975, and August 28, 1975. Each of the contracts stated, under the heading


"2. Incorporated herein by reference and made a part of this contract are the terms and conditions of the collective bargaining agreement that may be in force and effect during the school year, between the Whitnall Area Education Association and the District."

In August, 1975, the School Board of respondent Joint School District No. 3 and the Whitnall Area Education Association entered into a collective bargaining agreement which became effective August 28, 1975, and was to remain in effect until August 26, 1976. Section 8.5 of this agreement was entitled "Layoff Clause" and provided:

"Section 8.5 Layoff Clause

"1. If necessary to decrease the number of teachers in the School District because of a substantial decrease of pupil population, the Board shall consider first those teachers volunteering for layoff. Thereafter, teacher layoff shall be in reverse order of appointment, or in case of teachers who had previously terminated employment, their last reappointment in the District.

"2. In determining the reverse order of appointment, teachers working full time will hold the highest attainable rank of seniority in the layoff procedure.

"3. Supervisors or administrators returning to teaching positions within the District shall retain seniority for the years they had held a teaching assignment in the District.

"4. Teachers once having worked full time in the Whitnall District but since choosing to teach part time, must apply for a full time position by October 1, 1975 and must remain available for a position that opens in order to retain full time seniority rights.

"5. Teachers who are working less that full time shall hold a subordinate level of seniority, and their status in respect to one another shall be determined on the basis of years of continuous service in the District.

"6. In making the last person hired the first person laid off, the Administration shall attempt to arrange staff on the basis of qualifications by State Certification in the subject areas and grade levels.

"7. Teachers selected for layoff shall be notified in writing of the layoff on or before March 15 of the current school year.

"8. Under the terms of this Article, no teacher may be prevented from securing other employment while being laid off.

"9. Teachers on layoff shall be given preference for substitute teaching within the District in positions for which they qualify.

"10. Teachers laid off in accordance with this Article shall be reinstated in reverse order of being laid off for vacancies that occur in their area of certification. Reinstatements shall be made with credit and accrued benefits from prior years of service in the District but without additional seniority or incremental credit for the period of layoff.

"11. Teachers to be recalled must keep a current address on file with the District Office, must provide a yearly intent to return and are obliged to respond to a notice of recall within fifteen (15) working days that they will commence employment on the date specified, or with reasonable cause, no later than the next school year. Any notice shall be considered received when sent by registered letter, return receipt requested, to the teacher's last known address. Failure of a teacher to respond shall result in termination of any and all re-employment rights as provided in this Article.

"12. No new appointments shall be made while teachers are laid off from the District and are available and qualified by State Certification to fill the vacancies.

"13. If a teacher has been laid off for a period of seven (7) years without reinstatement, all rights under this Agreement shall be terminated.

"14. Any full-time teacher placed on part-time employment because of the need to reduce teaching staff shall retain full seniority rights and benefits in proportion to actual time of employment.

"15. Any grievance related to layoff will enter the grievance procedure at the Superintendent's level.

"16. Nothing in the layoff procedure as provided in the preceding paragraphs is intended to supercede tenure rights."

At no time prior to March 1, 1976, did respondent inform any of the plaintiffs by preliminary notice in writing that respondent was considering nonrenewal of the teacher's contract of that plaintiff, and at no time prior to March 15, 1976, did respondent give any of the plaintiffs written notice of renewal or refusal to renew his/her contract for the ensuing year.

By letter dated March 10, 1976, respondent gave each plaintiff a notice of layoff effective with the close of the present school term, June 11, 1976. The notice stated the layoff was due to a substantial decrease in pupil population and was no reflection upon their abilities. It also advised them of their rights and benefits as set forth in Section 8.5 Layoff Clause in the master agreement.

On March 30, 1976, each plaintiff notified the Superintendent of the Whitnall Area Schools, by letter, of the acceptance of his/her individual continuing contract and employment with the Whitnall Area Schools for the 1976-1977 school year, pursuant to sec. 118.22, Stats.

On April 6, 1976, the Superintendent, by letter, advised the plaintiffs that the School Board, by its Notice of Layoff, had not sought to terminate their employment relationship with the School District, but that the purpose of the Notice of Layoff was to inform them that they would be considered in a layoff status during the 1976-1977 school year. The letter again informed each plaintiff that the notification of layoff was issued in accordance with the provisions in Section 8.5 Layoff Clause in the collective bargaining agreement.

The affidavit of the Superintendent, in support of the respondent's motion for summary judgment, details the decline in the student enrollment for a six-year period. This affidavit reflects a total decline of student population of 520 students of which 193 occurred in the 1975-1976 school year. It also estimates a further decline in student population for the 1976-1977 school year of 174 students.

No issue is made of the fact that these figures are inaccurate or that they do not represent a substantial decline in student population.

Subsequent to the commencement of this action, 12 of the 14 teachers were recalled from layoff status. The remaining plaintiffs are Paulette Mack and Sharon Schermerhorn.

In disposing of the motions for summary judgment, the trial court held that the collective bargaining agreement was to be construed in conjunction with sec. 118.22(2), Stats., and, as a result, Section 8.5 Layoff Clause of the collective bargaining agreement did not violate the provisions of sec. 118.22(2). The trial court also held that no board was restricted from hiring a teacher so laid off during any such layoff period. The trial court further pointed out that the plaintiffs had accepted the benefits of the collective bargaining agreement and, having accepted those benefits, the plaintiffs had in effect waived the right to assert that the provisions of sec. 118.22(2), Stats., were violated by the collective bargaining agreement.

Judgment was entered on February 28, 1977, declaring that...

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