Title: Medicine Lake K-12 School Montana and Medicine
Lake Education Association
IN THE MATTER OF
LAKE K-12 SCHOOL
NO. D, MEDICINE LAKE,
FOR THE EMPLOYER:
Jeffrey M. Hindoien
Gough, Shanahan, Johnson & Waterman
O Box 1008
P O Box 1715
Helena, MT 59624-1715
Medicine Lake Education Association (“Association”) and the Medicine Lake
School District (“District”) are parties to a collective bargaining
agreement that provides no teacher will be laid off without just cause.
Michael Wheeler, a certified tenured teacher covered by the agreement
who taught for the school district was laid off and his full-time employment
contract was terminated due to a reduction-in-force made by the District.
He later accepted a half-time position.
Section 20-4-205(5) MCA, provides that a teacher covered by a
collective bargaining agreement whose individual employment contract is not
renewed by the District has the right to appeal to an arbitrator. Mr. Wheeler appealed the District’s decision and the matter
was taken to arbitration.
parties agree that the matter in dispute was submitted to arbitration pursuant
to Section 20-4-204 MCA, and Article 11.1 of the grievance procedures of the
parties’ current, 1998-2000, collective bargaining agreement.
The parties also agree that, to the extent the Employer does not have
policy nor is there contract language related to the implementation of a
reduction-in-force, the standards applicable to this reduction-in-force are
those established in Article 2.2 of the collective bargaining agreement and by
virtue of Montana law. Specifically,
the parties agree the following issues were submitted to the arbitrator for
Whether or not the Board of Trustees had just cause or good cause to
implement a reduction-in-force;
Whether the Board of Trustees was obligated to utilize objective
criteria fairly applied in determining which program areas and teacher(s)
would be subject to the reduction-in-force; and
Whether the District violated Article 7.1 of the collective bargaining
following provisions of the collective bargaining agreement are relevant to
the issues in dispute:
. . No teacher shall be disciplined, reprimanded, suspended or laid off
without just cause . . .
of assignment may become necessary because of variations in enrollment and are
the responsibility of the District Superintendent.
Teachers that are affected by staff or curriculum assignment changes
will be consulted. Consideration
will be given to their preferences and experience.
A full explanation will be made to the teachers that are affected . . .
findings are based on the credible evidence on the record made at the hearing
held on September 25, 2000. The
Medicine Lake School System, like many in Montana, is one whose student
enrollment is declining. Over the
past six years the K-12 student population has decreased from 216 students to
149 students. The general fund
budget has deceased approximately $50,000.
The number of teachers has decreased by three.
Prior to 1999, Medicine Lake was allowed to operate with the same
general fund budget authority for fiscal years 1999 and 2000, even though it
had an enrollment decline. By virtue of legislative changes made in 1999,
school districts such as Medicine Lake could no longer remain at its previous
years budget authority. Now when
enrollment declines drive the current year’s maximum below the previous
year’s, the District is required by law to adopt a lower general fund budget
than it had in the preceding year. The
District’s general fund budget authority for fiscal year 2001 was lower than
it was for the two preceding fiscal years.
The District is faced with permanent reductions in general fund budget
authority. It can no longer maintain prior year’s authority when it has enrollment
the same time student enrollment and general fund budget authority were
declining, the District has left a contingency fund in the budget.
The District intentionally underspent its authority because it wanted
to keep a cushion for emergencies. The
contingency fund was in addition to reserves held in the general fund.
The cushion amounted to about $80,000 each year for a number of years.
For the last fiscal year the amount was $150,000.
Wheeler was a full-time tenured teacher employed by the District as a
librarian for twelve years. He
had taught previously in other school districts.
The subjects he had taught were seventh and eighth grade English,
literature, physical education, geography and library science.
He is endorsed in library K-12 and broad field social studies.
He is certified to teach in areas currently being taught by a
nontenured teacher in the Medicine Lake School.
the spring of 2000, former Superintendent Moore asked Mr. Wheeler if he would
consider retiring from his full-time position and return as a part-time
librarian. Mr. Wheeler said he would consider it, but doubted he could afford
to do so.
the June 8, 1999, Board of Trustees meeting, Moore provided the Trustees with
a number of options they could consider to reduce expenditures.
Among these options was one to eliminate the full-time librarian
position and to hire it back as a part-time position.
January of 2000, the Board met and directed Moore’s successor,
Superintendent Loehding, to look for ways to make budget cuts. Later, during
early February, Loehding told Wheeler he would likely be terminated at the end
of the school year. Mr. Wheeler expressed his concern over losing his job and
asked what he could do. Loehding
said it might be possible for him to retire and return on a part-time basis,
but Wheeler should resign and then Loehding would recommend to the Board that
he be rehired as a part-time librarian. Wheeler
was willing to resign and retire
rather than lose his job outright because he feared he would lose his health
insurance. He later changed his
mind about retiring after talking to Association representatives.
the February 8, 2000 Board meeting the Trustees received Loehding’s
recommendations related to budget cuts. He
noted he had met with the staff on January 24, 2000, for input on the proposed
cuts. He also noted that at the last Board meeting, the Board has
decided to reduce the budget by $45,000 for the next fiscal year.
Based on his review and analysis of where cuts could be made with the
least effect on students, he recommended that the full-time librarian position
be eliminated because state accreditation standards only required a half-time
librarian in a school the size of Medicine Lake.
He also recommended a reduction in administrative staff and supplies,
representatives met with Loehding in mid-February and told him Wheeler was a
tenured teacher certified to teach the social studies and history classes
currently taught by a nontenured teacher.
They contended Wheeler should be able to bump the nontenured teacher
for those classes. They also told
him the District had not identified any criteria on which to base a
reduction-in-force or any to justify the termination of Wheeler’s full-time
position rather than that of the nontenured teacher.
Loehding outlined the basis of his recommendation to the Board chairman by
letter dated March 28, 2000. He
recommended that Mr. Wheeler be reduced to a half-time teacher.
He referred to the Board’s earlier endorsement of his recommendation
that the full-time librarian position be eliminated and that certain other
cost-cutting efforts be made. He
noted that the District began the review process of its financial outlook the
previous fall and in December he had projected the District faced the prospect
of having to make general fund budget reductions because of declining
enrollment of approximately $55,000 for the next school year, $31,000 for the
2000-2001 school year and $58,000 for the 2001-2002 school year.
the letter of March 28, 2000, the Superintendent noted that the Board had not
taken action to create a part-time librarian position.
He went on to recommend that the Board create a half-time librarian
position for the 2000-2001 school year. He
also wrote that Mr. Wheeler did not possess nor could he readily obtain the
necessary endorsement to fill any other position in the District that was
filled by a nontenured teacher. He
stated that, as such, Wheeler was not qualified to bump a nontenured teacher
from another teaching position.
letter dated March 28, 2000, the chairman of the Board of Trustees informed
Wheeler of Loehding’s recommendation to the Board that Wheeler’s
services as a full-time tenured teacher be terminated at the end of
Wheeler’s current contract. The
letter informed Wheeler of his rights to a hearing before the Board and the
procedure to obtain a hearing regarding the recommendation.
The chairman included a copy of Loehding’s letter to the chairman and
noted that it set forth the reasons for Loehding’s recommendation that
Wheeler’s full-time position be terminated and reinstated as a half-time
a special meeting on April 17, 2000, the Board held a hearing, pursuant to
Section 20-4-204(4) MCA, on Superintendent Loehding’s recommendation that
Mr. Wheeler’s full-time position be terminated and that it be reduced to a
half-time position. Wheeler, other teachers and Association representatives,
including the Association’s Field Consultant, were present and participated
in the hearing. The
Superintendent explained his reasons for recommending the reduction-in-force
of the library position. He said
he looked at all options, but since there was only one librarian, no objective
criteria were required. He
believed his recommendation would have the least effect on students.
Field Consultant questioned Loehding about the budget cut, other areas that
could be cut, the unspent budget reserves, cash reappropriation, savings from
the reduction-in-force, endorsements and the bumping of Mr. Wheeler into
classes taught by nontenured teachers. Mr.
Loehding stated that enrollment decreases were the only reason for the
decrease in budget authority and the Board had no obligation to piecemeal a
position for Mr. Wheeler. The
Superintendent said Mr. Wheeler had approached him early in February about
retirement options and asked for assistance in writing a letter to the Board.
Board accepted Loehding’s recommendation for the reduction in the library
program from a full-time librarian to a half-time librarian because the
Trustees believed the District was facing reductions in general fund budget
authority and concurred with his assessment that the reduction would minimize
the impact on education opportunities for students.
OF THE EMPLOYER’S POSITION
Employer contends it had good cause to implement the disputed
reduction-in-force. The Board of
Trustees have the statutory authority and discretion to manage the fiscal
affairs of the District. Their
decision to reduce the library program as a part of expenditure reductions
intended to deal with an undisputed reduction in general fund budget authority
was well within their authority and discretion.
resolution of this matter turns primarily on the application of state law
related to the reduction-in-force of tenured teachers.
Only one of the issues concern a provision in the collective bargaining
Medicine Lake’s enrollment continues to decline, its general fund budget
authority declines. Since the 1999 legislative changes, it can no longer stay at
the same level of budget authority as the previous year. Now it is limited to adopting a budget lower than the
previous year because of its declining enrollment.
As enrollment drops, the District will be faced with a decreasing
amount of general fund budget authority.
There is no real dispute as to the actual budget numbers. The dispute lies in the legal significance attached to those
Board of Trustees concurred with Superintendent Loehding’s assessment and
recommendation that a reduction in the library position to half-time would
minimize the impact on students. There
were other areas that could have been reduced, but the objective was to
minimize the impact on students.
is well-established that financial grounds provide good cause for reducing or
dismissing tenured teachers. School
boards are given express statutory authority to relieve employees from duties
because of lack of work or funds or under conditions where continuation of
such work would be inefficient or nonproductive and to maintain the efficiency
of government operations. (Citing Sorlie v. School District No. 2, 205
Mont. 22, 667 P.2d 400 1983). The
dispute here is whether the budget numbers provided good cause to reduce Mr.
Legislature, in May 2000, increased state funding for public education.
In Medicine Lake the increase amounted to $27,463. The increase, however, did not eliminate the reduction in
budget authority faced by the Board, it only reduced its size.
There still existed a $29,111 reduction in budget authority for fiscal
year 2001. Without the increase,
the total reduction in budget authority would have been closer to $56,500.
increase given in 2000 by the Legislature did not alter the premise upon which
the reduction in the library program was based.
The District was faced with a reduction in general fund budget
authority and, as enrollments decline, will continue to be faced with
additional reductions in budget authority.
is no dispute that the District has historically expended fewer dollars on an
annual basis that its maximum general fund budget authority allowed.
The Board, however, has the sole authority for managing the fiscal
affairs of the District. The
practice of carrying a cushion within the general fund budget goes back to the
days when districts were allowed to carry much larger reserves than the law
now permits. In the past,
districts could carry as much as 30 percent over their budgets.
That figure is now 10 percent and Medicine Lake has tried to carry some
of the extra cushion inside its general fund budget authority to deal with
emergencies and unanticipated needs.
Medicine Lake Board of Trustees chose to use the same budgeting practice
challenged by the Association in Forsyth.
(Citing Arbitration of Forsyth Education Association v. Forsyth
Public Schools, Dorsey, 2000). It
is not for the Association to decide how the fiscal affairs of the District
Association is contending that the fiscal year 2001 reduction in budget
authority alone is not sufficient to support a decision to reduce the library
program and the Trustees could have found enough money to continue the
full-time librarian if they had altered the practice of carrying unexpended
budget authority. Those
decisions, however, are not the Association’s to make.
is not a case where the employer simply advised an employee that he was being
terminated because of a reduction-in-force, but never produced any economic
evidence explaining the basis for the reduction. (Citing Hammer, Anderson
et al. v. Dawson County High School, IOSPI 216-92), 13 Ed. Law 25 l(1994);
and Beck v. Dawson County High School OSPI 233-94), 14 Ed Law 6 (1995))
There is no dispute as to the economic reason for the
reduction-in-force in this case, nor is there any dispute that such reason has
been clearly identified and referred to at all times in the process.
Board was not obligated to utilize “objective criteria fairly applied” in
implementing the reduction of its library program.
This legal issue is the real reason this matter has been brought to
arbitration. It boils down to
whether Mr. Wheeler’s status was properly reduced to that of a half-time
tenured teacher or was he entitled to a greater than half-time position with
assignments taken from areas other than the library.
concept of “objective criteria fairly applied” came from Texas Faculty
Association v. University of Texas at Dallas, 946 F.2d 379 (5th
Circuit 1991). It involved the
reduction of programs and the termination of ten staff members.
That case and Ekwortzel v. Stillwater County School District No. 3
(OSPI 201-92), 12 Ed. Law
45(1993) stand for the concept that in the event of a program reduction that
necessitates a choice between several staff members employed in that program
as to who is retained and who is terminated, a school board must utilize
“objective criteria fairly applied” in determining which staff member is
to be terminated. The concept
applies to the decision to terminate specific staff members, not the decision
to eliminate programs in the first place. Once the decision to eliminate or reduce a program is made,
only then does the “objective criteria fairly applied” requirement become
Ekwortzel requires is in a large district once the decision to reduce
or eliminate a particular program is made, the district then must utilize
“objective criteria fairly applied” in deciding which of its staff members
will be retained to teach in the reduced program.
As in large districts, small districts are not obligated to utilize the
concept in reaching a decision to reduce a program.
It is required only after the decision to reduce the program is made. The requirement is not implicated in the present case because
Mr. Wheeler was the only employee in the reduced program.
Massey v. Argenbright, 211 Mont.331, 683 P.2d 1332, the Montana Supreme
Court held that if a district RIF’s a tenured teacher and has a position
being held by a nontenured teacher for which the tenured teacher is certified
to teach, the district must allow the tenured teacher to “bump” into the
position held by the nontenured teacher.
Holmes v. Board of Trustees, 243 Mont. 263, 792 P.2d 10 (1990) the
Montana Supreme Court gave the Massey holding as additional twist.
There the tenured teacher did not actually have current certification
in the other areas where positions were held by nontenured teachers. The Court said that was a distinction without substance.
to the Association’s contention, neither Massey nor Holmes
required the District to create a new “hybrid” position for Mr. Wheeler.
They do not require that a district modify other positions or create
hybrid positions for RIF’d tenured teachers.
The Association contends that the District was obligated to strip the
two history classes out of the combined P.E/History position held by a
nontenured teach and create a new combined Library/History position for Mr.
Wheeler. That argument was
rejected by Arbitrator Dorsey in Forsyth.
The situation is identical here. Mr.
Wheeler is not qualified to fill the P.E/History position.
the Employer contends it did not violate Article 7.1 of the collective
bargaining agreement. Superintendent
Loehding consulted with Mr. Wheeler well before any recommendation was made to
reduce him to half-time. The
Article does not grant any substantive right to the employee or the
Association to dictate what assignment changes will be.
In fact, the provision recognizes the authority of the District to make
such changes and acknowledges any decision by the administration to make
assignment changes consistent with the employee’s training will be final.
OF ASSOCIATION’S POSITION
Association argues that since 1997, when the Legislature changed the procedure
for teachers in collective bargaining units to appeal their termination,
arbitrators must do the job that used to be done by county superintendents of
schools. An arbitrator must apply
the law to the facts of the case before him to determine whether a school
district had good cause to terminate a teacher.
Tenure rights remain the same despite the change in procedure.
The right of a tenured teacher to continued employment may be taken
only if there is good cause.
that the agreement between the parties requires just cause in the event of a
lay off but contains no language governing a layoff procedure, the arbitrator
must balance the rights of management with those of the affected teacher.
The District does not have the unfettered right to act as it wishes
because Article 2.2 and 12.1 of the agreement co-exist and must be given
meaning. Neither article can be
ignored, both must be enforced.
standard to be used in determining whether management abused its discretion
when it selected Mr. Wheeler for layoff rather than junior untenured teachers
is the arbitrary, capricious, unreasonable or discriminatory standard.
(Citing Practice and Procedure in Labor Arbitration by
Fairweather, BNA, 4th Ed.). An
implied rule of reasonableness or nonarbitrariness should apply.
If no rational basis supports the decision, seniority prevails.
agreement states that no teacher will be laid off without just cause.
That language gives the Association the right to challenge the
District’s position that “justifiable economic necessity” existed making
a layoff unavoidable. Without
that interpretation, Article 2.2 is meaningless.
Since just cause is expressed in the layoff provision and the
management rights provision expressly states all rights not specifically
stated in the contract are reserved to the District, all matters related to
layoff because of the decline in enrollment, it must prove the decline
provided “justifiable economic necessity” to lay off Wheeler.
The District has the burden of proof in that regard.
Forsyth, Arbitrator Dorsey ruled the district retained its management
rights because neither law nor the parties contract required the district to
give up its right to manage the district.
Such was not the case here.
District failed to prove the reduction in enrollment necessitated a layoff.
The District cannot make a credible argument that it had “justifiable
economic necessity” to conduct a reduction-in-force and, therefore, reduce
the budget by $23,000, the amount saved by Wheeler’s layoff, when at the end
of the same year $150,000 went unspent. Prior
to that year the usual amount that went unspent was $80,000.
The fact of the unspent $150,000 alone proves the District did not have
“justiciable economic reasons” to make a reduction-in-force.
District maintains it has the right to decide whether to spend its entire
budget. That may be so were it
not for Article 2.2 and the fact that all layoffs require just cause.
a school district decides a reduction-in-force is necessary and that reduction
requires that a tenured teacher be laid off, the district has the legal
obligation to prove “justifiable economic necessity” existed to cause the
reduction. (Citing Hammer v.
Dawson County High School District, 13 Ed. Law 25).
The Medicine Lake School District did not have “justifiable economic
necessity” to make a reduction-in-force.
Its budget and enrollment projections have been largely unreliable.
District was obligated to utilize objective criteria fairly applied to
determine which program areas and teachers would be subject to the
reduction-in-force. The District
asserts it has the right to select any program to cut without challenge from
the Association. If that were so,
it would deprive Mr. Wheeler of due process.
(Citing Cleveland Board of Education v. Loudermill, 470 U.S.
2.2 required the District to show why it chose the library, rather than
another program area to reduce. The
District should be required to show what criteria it used to determine that
reducing the library would have the least impact on students.
Association maintained from the beginning that Mr. Wheeler was chosen to
reduce because of his age and ability to retire.
That is an unconstitutional reason.
(Citing Texas Faculty Association v. University of Texas at Dallas,
946 F.2d 379 (5th Circuit 1991).)
Both superintendents approached Wheeler on different occasions because
he was near retirement age. The
library was cut not because it would have the least impact on students but
because Mr. Wheeler could retire.
the District’s reduction plan, someone was gong to have to work half-time.
Under both Massey and Harris, the District would be
obligated to reemploy Mr. Wheeler as a tenured teacher in instructional
program areas for which he is certified. (City Massey v. Argenbright,
211 Mont. 331, 683 P.2d 1332 (1984) and Harris v. Cascade County School
District Nos G and F, 241 Mont. 274, 786 P.2d 1164 (1990).)
District has created a hypertechnical reason in an attempt to circumvent
tenure. That reason is that Mr.
Wheeler was not qualified/certified to bump any of the nontenured teachers
because he is not qualified/certified to bump them out of their positions
entirely. (Citing Harris,
are no exceptions when a school district determines it necessary to terminate
a teacher through a reduction-in-force. It
does not matter the size of the district, its location or whether there is
only one teacher in the program area to be reduced.
Many teachers hold multiple endorsements.
By law it is essential that trustees develop objective criteria before
implementing the reduction and that the criteria be applied to all staff.
Courts have upheld this process because it assures that no teacher will
be terminated based on constitutionally impermissible criteria.
Employer’s characterization of the word “position” as used by the
Montana Supreme Court in the cases cited in its brief must be dismissed.
The Court did not hold such strict interpretation of the word, nor did
it contemplate such limited definition. The
Court did not discuss whether the positions in question were full or part
time. The Court ruled on the
basis of whether one was a tenured or nontenured teacher.
Massey, the Court found for the terminated teacher because nontenured
teachers were teaching in areas he was certified to teach.
It did so because he was a tenured teacher, not because he could
“bump” into a full-time position for which he was certified.
The Court said,
essential question here is whether any of the positions held by nontenured
teachers in the district at the time the school board voted to nonrenew
Massey’s contract to teach in the business education department was a
comparable position of employment which should have been offered to Massey.
essence of the Court’s ruling in Massey was that teachers are tenured to
their certification not to the same position year after year.
If tenured teachers were entitled to the same position year after year,
a district would not be able to transfer any tenured teacher into a position
that teacher did not teach the previous year.
Such is not the case. Tenured
teachers in Medicine Lake were assigned to areas that they were not assigned
to the previous year. They were,
however, certified in the area to which they were assigned.
is the right to continue to teach in a position in which a teacher is
certified. Tenure is not what is
convenient for a district. It is
a statutorily and constitutionally protected property right, a substantial,
valuable and beneficial right which cannot be taken away except for good
District failed to comply with the requirement set forth in Article 7.1
inasmuch as it failed to consult with Mr. Wheeler and give consideration to
his preferences and experience.
Montana Supreme Court, in Helena School District No 1 v. State, 236
Mont. 44, 769 P. 2d 684 (1989), found Montana’s system of school funding to
be unconstitutional because of spending differences between school districts.
The Legislature then restructured school funding.
The effect of the new scheme of funding left school districts like
Medicine Lake, which has experienced declining enrollment for several years
and expects such decline to continue in the foreseeable future, with less
general fund budget authority than they had in previous years.
In general, as enrollment declines, the funds a school district has to
operate on decrease.
parties strived to make clear once this dispute went to arbitration, pursuant
to Section 20-4-204 MCA, that this is a statutory arbitration proceeding.
While they agreed in their joint statement of issues that the standards
applicable to the reduction-in-force are those established in Article 2.2
of the collective bargaining agreement and by virtue of Montana law, it
was upon the law that, for the most part, they made their arguments.
The focus of this analysis and opinion, therefore, will be upon the
facts and their application to the law related to teacher tenure in Montana,
as argued by the parties, rather
than on general labor arbitration principles.
With the exception of the third issue listed above, whether the
District violated Article 7.1 of the collective bargaining agreement, all the
issues in dispute require the application of law.
7.1 of the agreement requires communication with the affected teacher and
consideration of the teacher’s preferences and experience.
The evidence on the record shows that was done.
The Superintendent met with Mr. Wheeler and discussed ways to address
Mr. Wheeler’s concerns. He
received full explanation of the need to reduce the library program.
Mr. Wheeler’s preferences and experience were considered, although
the outcome was not what he wanted. Two
other teachers and Mr. Wheeler met with Loehding twice in February and
discussed, among other things, Wheeler’s areas of certification and the fact
a nontenured teacher was teaching social studies and history classes that
Wheeler should be able to bump into.
is no question that good cause must be shown to support a reduction-in-force
of a tenured teacher. The
District does not dispute that. Both
the law and the collective bargaining agreement require it.
There is no dispute that the Association can challenge the District’s
financial argument related to the necessity for the reduction.
The threshold issue here is whether the decrease in general fund budget
authority constituted good cause for the reduction-in-force.
Sorlie v. School District No. 2, 205 Mont. 22, 667 P.2d 400, the
Montana Supreme Court held that a teacher who had been promoted to an
administrative position and subsequently removed from that position was
removed pursuant to the Board’s power to financially manage the school
district. The Court cited Section 20-3-324 MCA, where school boards’
powers and duties are outlined, and concluded that law gave the Board the
authority it needed to act as it did.
Court reasoned in Sorlie that a school board must have the authority to
manage the district in a financially responsible manner, including the
elimination of programs and activities and the Court also referred to Section
39-31-303(2) and (3), MCA, the public employee collective bargaining law’s
management right provision, in support of its reasoning.
Association argues that the Board could not have had justifiable economic
necessity to make the reduction-in-force when it had $150,000 left at the end
of the year. There is no dispute
that the Board has historically spent less than its budget authority allowed.
There also could be little dispute that the Board could have altered
its usual practice of not spending up to the maximum of its authority and
funded a full-time library program as it had in the past.
The Board, however, chose a fiscally conservative approach to budgeting
and spending. Its decision is
within its authority and discretion to manage the school district.
While the Association may disagree with the approach, it is not
justifiable economic necessity for the reduction-in-force can be found in the
continued enrollment decline the district expects and the adverse economic
conditions that a decreasing general fund budget authority will undoubtedly
impose on the District. Just
cause to implement a reduction-in-force as required under Hammer, Anderson,
et al, v. Dawson County High School District, 13 Ed. Law 25 (1994), is
based on the enrollment decline and the adverse economic conditions.
Dorsey, in Forsyth Education Association and Forsyth Public Schools,
January 14, 2000, addressed the right of Boards of Trustees to make financial
decisions. He held that the
responsibility rested on the shoulders of the trustees because they have the
responsibility for judging what is best for the school.
That is precisely what they are elected to do here.
State Superintendent of Public Instruction held in Hammer, supra, that
establishing just cause for a reduction-in-force or in teacher employment
rights was only the first step in the process.
A board of trustees must then decide how to respond using objective
criteria that are fairly applied.
other issue in this case involves the other step mentioned in Hammer,
whether the Board as obliged to utilize objective criteria fairly applied in
determining what program areas and teachers would be subject to the
reduction-in-force. The Association argued that Mr. Wheeler was selected to have
his position reduced to half-time because he was in a position to retire.
The record does not support that conclusion, as has been found earlier
question is whether Mr. Wheeler is entitled to a greater than half-time
position. He is certified to
teach the social studies/history classes being taught by a nontenured teacher.
The Association contends the
Board was required to demonstrate the objective criteria by which it selected
the library program and teacher for the reduction-in-force.
The Board maintains that its decision as to which program, i.e., the
library, to reduce was not subject to the objective criteria requirement.
That requirement, the Board argues, is only applicable in instances
where there is more than one tenured teacher to choose from in staffing a
Montana Supreme Court in, Ekwortzel v. Stillwater County School District
No. 31, 12 Ed. Law 45, said:
faced with adverse economic conditions have good cause to initiate a RIF.
(Citing Sorlie, supra.) However,
deciding that adverse economic conditions justify a reduction in the number of
teachers is only the first step. A
board of trustees must then use objective criteria that are fairly applied to
decide which teacher(s) will be retained and which will be terminated.
This requirement is to satisfy Due Process. (Citing Texas Faculty Association v. University of Texas at
Dallas, 946 F.2d 379, 70 Ed. Law Rep. 377 (5th Circuit 1991).
Ekwortzel nor Texas Faculty said objective criteria had to be
utilized to justify the decision to reduce a program.
Rather, the requirement came about after the decision on the program
was made. There is no reason why this rule should not apply to a small
district like Medicine Lake. Deciding
which programs to reduce in a small school requires essentially the same kind
of authority and discretion on the part of elected trustees as it does in a
large district. Small districts
should not be required to base their program reduction decisions on the
attributes of the individual teachers rather than on the impact the reduction
will have on students.
last issue in this case involves the principles set forth in Massey and
Holmes. Massey v.
Argenbright, 211 Mont. 331, 683 P.2d 1332 (1984) and Holmes v. Board of
Trustees, 243 Mont. 263, 792 P.2d 10 (1990).
The parties do not dispute the legal principle involved in the two
cases: when a tenured teacher
subject to a reduction-in-force is entitled to bump a nontenured teacher from
a position for which the tenured teacher is qualified.
How the principle applies to the present case is the question.
Board holds that if a district reduces a teacher and has a position being held
by a nontenured teacher for which the tenured teacher is qualified or may
readily qualify, then the district must allow the tenured teacher to bump into
the other position held by the nontenured teacher.
The Board argues it is not required to modify other positions or create
hybrid positions for the tenured teacher who was subject to the
Association takes the opposite view and urges that the courts did not take
such a narrow view when they used the word “position” in discussing tenure
rights. The better view is that
held by the Association.
Court held in Massey and in Holmes that tenured teachers have
employment interests that are statutorily and constitutionally protected.
In State v. District Court, Fergus County (1954), 128 Mont. 353,
275 P.2d 209, the Court held that a teacher’s tenure is a substantial,
valuable and beneficial right that cannot be taken away except for good cause.
In Sorlie the Court said tenure rights of a teacher must be
balanced against the board’s authority to manage the school in a responsible
manner, including eliminating programs and personnel.
In Massey the court reasoned that because Massey was a tenured
teacher, he was entitled under the tenure laws to a certain degree of
employment and economic security that untenured teachers do not enjoy.
give the tenure law meaning for small-school teachers, it must be held that
the Board could not reduce Mr. Wheeler’s position to half-time employment
while at the same time keeping a nontenured teacher in its employ teaching
classes that Wheeler was qualified and certified to teach.
The word “position” as defined by the Board would deprive Wheeler
of his tenure rights. The
cornerstone of Massey, the Court said in Holmes, was Massey’s
tenure and the protection to which the tenure statute entitled him.
board’s management of its financial affairs and its use of resources,
including staffing levels should be given broad latitude.
Ekwortzel, supra, quoting from Napp, James E., Education Law,
6.08[c]. However, once the
board has decided which programs will remain after a reduction-in-force, it
must comply with Montana statutory standards as to tenure.
The better and more reasonable interpretation of the law, as set forth
in the cases cited herein and in the parties’ arguments, is that the word
“position” cannot be defined so narrowly as to deprive a tenured teacher
of his statutory rights.
school board should not be allowed to circumvent the tenure rights of a
teacher by abolishing, or reducing to half-time, a one-position teaching job
and refusing to allow the adversely affected tenured teacher to teach classes
he is qualified and certified to teach that are being taught by a nontenured
teacher. Where boards are
contemplating the reduction of such one-position jobs they can reasonably be
expected to take the fact of the teacher’s tenure into consideration before
deciding what array of programs and classes will remain after a
reduction-in-force. That is not
an unreasonable expectation if small-school teachers’ rights are to be held
intact. The size of the school or
program should not serve to diminish those rights.
argument that an affected, qualified, tenured teacher cannot be given some of
the classes being taught by a nontenured teacher because the affected tenured
teacher cannot teach all the classes being taught by the nontenured teacher
conveniently ignores and subordinates teacher tenure rights altogether for
teachers in small schools like Medicine Lake.
The right of a board to unilaterally abolish a one-teacher program or
substantially reduce it thereby causing the affected teacher a reduction in
employment and salary does not go one step further and permit a board to deny
the affected teacher his tenure rights, although it may be troublesome to
rearrange a nontenured teacher’s
schedule and reduce the nontenured teacher’s classes.
The concern at that point should be the rights of the adversely
affected tenured teacher, not the nontenured teacher.
are a lot of small school districts with few teachers and students in Montana.
If the Board’s argument were accepted, boards in those small
districts where a tenured teacher may have fallen from favor could effectively
dismiss the teacher even for impermissible reasons unrelated to any need to
reduce a program. There is no
evidence on the record here to support a conclusion that the Superintendent or
the Board in Medicine Lake had ulterior motives when they selected the library
program for reduction. If there
had been, however, and if Mr. Wheeler’s tenure rights could be ignored as
the Board argues, he would be without recourse as a tenured teacher.
facts of the case in Forsyth were somewhat different than the facts
here. However, to the extent that
the analysis and conclusion made here differs in principle with Forsyth,
suffice it to say, this arbitrator’s interpretation of the law, as discussed
above, leads him to a different conclusion.
summary, the Board of Trustees had good cause to implement a
reduction-in-force. The Board did
not violate Article 7.1 of the collective bargaining agreement.
The Board was obligated to utilize objective criteria fairly applied in
determining which program areas and teacher(s) would be subject to the
reduction-in-force, inasmuch as it was required to allow Mr. Wheeler to teach
those classes for which he was qualified and certified that were taught by the
nontenured teacher. Accordingly,
I will enter an award.
grievance is sustained. The
Employer is hereby ordered to:
Reinstate Mr. Wheeler to a full-time position made up of his half-time
his library position and the classes taught by the nontenured teacher that Mr.
Wheeler is certified to teach;
Make Mr. Wheeler whole by paying him for all lost pay he incurred because
of the reduction-in-force; and
Restore all benefits Mr. Wheeler had prior to the reduction-in-force.
this the _____ day of March 2001.
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