School Bd. of Seminole County v. Cornelison

• Decision Date: 21 October 1981
• Docket Number: No. 80-494,80-494
• Citation: 406 So.2d 484
• Parties: 1 Ed. Law Rep. 1032 The SCHOOL BOARD OF SEMINOLE COUNTY, Florida, Appellant, v. Lynette T. CORNELISON and the Seminole Education Association, Appellees.
• Court: Florida District Court of Appeals

Page 484

406 So.2d 484

1 Ed. Law Rep. 1032

The SCHOOL BOARD OF SEMINOLE COUNTY, Florida, Appellant, v. Lynette T. CORNELISON and the Seminole Education Association, Appellees.

No. 80-494.

District Court of Appeal of Florida, Fifth District.

Oct. 21, 1981.

Rehearing Denied Dec. 2, 1981.

Ned N. Julian, Jr., Stenstrom, McIntosh, Julian, Colbert & Whigham and Marcia K. Lippincott, Sanford, for appellant.

John J. Chamblee, Jr., Frank, Chamblee & Kelly, P. A., Tampa, for appellees.

FRANK D. UPCHURCH, Jr., Judge.

Appellant appeals an order of the Circuit Court for Seminole County affirming an arbitration award. ¹ Appellee was initially employed by appellant on an annual contract as a media specialist for the 1973-74 school year. Her contract was renewed in 1974-75 and 1975-76 but in April of 1976, she was notified her contract would not be renewed. She was paid for the entire period of her contract.

Pursuant to the collective bargaining agreement, appellee filed a written grievance charging that Article XVIII, section B ² of the agreement had been violated because the school superintendent and other administrative personnel had failed to give her every reasonable opportunity to develop into a useful and productive teacher. She also alleged that she had not received a timely and adequate evaluation as required by the agreement. The grievance was denied.

Arbitration hearings occurred on June 23, 1977. The arbitrator found that the agreement had been violated by the school administrators' failure to counsel appellee as to any weaknesses or deficiencies in her teaching that would preclude her from being recommended for a continuing contract and in failing to properly evaluate her.

The arbitrator ordered appellant to reinstate appellee on an annual contract and awarded back pay. The school board refused to comply and appellees filed an application with the circuit court to confirm the arbitration award. ³ Upon confirmation, the school board took this appeal.

The question presented is whether an arbitrator may require the school board to reinstate a teacher on annual contract to another year's term because of a breach of teacher evaluation procedures in a collective bargaining agreement, where the agreement does not provide a remedy for such violation.

The collective bargaining agreement in question defines the procedures to be followed in making teacher evaluations. It does not, however, specifically provide for reinstatement in annual contract status for breach of such procedures. ⁴

In Lake County Education Association v. School Board of Lake County, 360 So.2d 1280 (Fla. 2d DCA 1978), cert. denied, 366 So.2d 882 (Fla. 1978), the Second District Court of Appeal declared that it is the public policy of Florida, expressed through statute, that our elected school boards have the exclusive prerogative to decide whether to re-appoint non-tenured teachers. The court made this declaration in holding that a school board cannot enter into a collective bargaining agreement where its decision not to re-appoint a non-tenured teacher must be based upon proper cause. The court cited Florida statutory law ⁵ which provides that the school board alone has the power and board alone has the power and duty to dismiss its employees. A "proper cause" provision regarding re-appointment of non-tenured teachers would obviously limit the exclusive authority vested in the board and, in effect, transfer it to an arbitrator.

The Lake County court noted in dictum that several of the opinions cited in support of its ruling were careful to point out that public policy does not prohibit a school board from entering into a collective bargaining agreement which defines procedures to be followed in making teacher evaluations which may lead to a decision not to re-appoint a non-tenured teacher. The court stated that where such an agreement is reached on procedures, the arbitrator's decision granting a non-tenured teacher relief because of the failure to follow such procedures has been upheld.

While the cases cited by the Lake County court for this principle, Cohoes City School Dist. v. Cohoes Teachers' Association, 40 N.Y.2d 774, 390 N.Y.S.2d 53, 358 N.E.2d 878 (N.Y.Ct.App.1976) and School Committee of West Bridgewater v. West Bridgewater Teachers' Association, 372 Mass. 121, 360 N.E.2d 886 (1977) involved reinstatement, the Lake County court did not specifically declare what relief would be appropriate where evaluation procedures are violated.

Of even more significance is the fact that the Lake County court quoted from Wesclin Education Association v. Board of Education, 30 Ill.App.3d 67, 331 N.E.2d 335 (1975) regarding non-tenured teachers:

Such teachers are not in an "on the job training" status, but are employed as persons qualified by training and practice under the supervision, guidance and training furnished by other educational institutions. Since some of those so qualified may not be capable of serving the best interests of the school, the Legislature has seen fit to allow a broad discretion in termination of their employment, as being in the best interests of the school. Since they have not completed their probationary period they have no vested interest in their employment, of which they are deprived by compliance with the applicable provisions of the School Code in the termination of their employment.

331 N.E.2d at 342.

Wesclin involved a situation wherein probationary teachers were given notice of non-renewal of their contracts without compliance with evaluation procedures and they sought mandamus to prevent their termination. The court held that the board could not, via a collective bargaining agreement destroy the flexibility which it possessed with respect to the dismissal of non-tenured teachers. The court made the following observation:

It is generally accepted that the purpose of our common school system is to furnish adequate educational facilities and education and training for the students enrolled. A school board is obligated to hire only properly trained, evaluated and qualified teachers. The purpose of our common school system is not to evaluate, train, supervise, guide, and advise teachers although such procedures may be involved incidentally in this development of an education system; but when so involved the purpose is to better the system for the benefit of the students, and not for the benefit of the teachers who may either by indifference or lack of ability display that their employment is not in the best interest of the school district, or is unsatisfactory.

331 N.E.2d at 341.

The opposing philosophy is illustrated by Board of Education v. Bellmore-Merrick, 39 N.Y.2d 167, 383 N.Y.S.2d 242, 347 N.E.2d 603 (N.Y. Ct.App. 1976) and School Committee of West Bridgewater. In these cases the courts, while recognizing that a school board may discharge a probationary teacher without explanation, held that this power may be limited by the terms of a collective bargaining agreement. In Bellmore-Merrick, the court declared:

(t)he evaluation provisions of the agreement were intended to benefit all probationary teachers. The Board's power to dismiss without explanation should not be deemed a license to violate these bargained for rights.

347 N.E.2d at 606.

However, we believe the better view is that the board's failure to follow assessment procedures does not create a remedial right to require the school board to re-employ ab initio, ⁶ at least where the collective bargaining agreement is silent as to a remedy for such violation. We recognize that a school board might conceivably agree in the collective bargaining agreement to reinstatement where it fails to properly follow evaluation procedures. However, where such a provision is absent, to permit an arbitrator to require renewal of the annual contract would usurp the prerogative of the board to appoint instructional personnel and violate the public policy of this state. ⁷ Lake County. See In the Matter of Arbitration Between Orange County Classroom Teachers' Association and School Board of Orange County, Federal Mediation and Conciliation Service, File No. 79 K/2309 (May 1980), wherein the arbitrator held that the school board's failure to follow teacher assessment procedures in not renewing an annual contract did not create remedial rights on the part of the affected teacher.

We are aware that a collective bargaining agreement should be broadly construed and all doubts resolved in favor of the arbitrator's authority, but an arbitrator cannot rewrite the agreement and he is bound by it. Western Iowa Pork Co. v. National Packinghouse & Dairy Workers, 366 F.2d 275 (8th Cir. 1966); Cosmos Broadcasting v. New Orleans Local Am. etc., 455 F.Supp. 426 (E.D.La. 1978). An arbitrator lacks the authority to revise the agreement in a manner the parties did not contemplate and to which they did not assent. See United Steelworkers v. Enterprise Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). This is especially true where the arbitrator's action has the effect of depriving the school board of its sole prerogative, reserved to it by law, to determine whether the contract of a non-tenured employee will be renewed.

We therefore REVERSE.

COBB, J., concurs.

SHARP, J., dissents with opinion.

SHARP, Judge, dissenting.

I respectfully dissent in this case. Enforcement of the arbitrator's award would not deprive the Board of its prerogative in determining whether to renew the contract of a non-tenured teacher. The Board would retain that...