-

IN THE MATTER OF THE GRIEVANCE

ARBITRATION BETWEEN:

 

 

MEDICINE LAKE EDUCATION                        )

ASSOCIATION, MEA/MFT,                        )

)

Association,                                    )

)

and                                                       )                       OPINION

)                        AND

MEDICINE LAKE K-12 SCHOOL                        )                        AWARD

DISTRICT NO. D, MEDICINE LAKE,            )

MONTANA,                                                                                                   )

)

Employer.                                    )

                                                                                                                                                           

 

 

BEFORE

JACK H. CALHOUN

ARBITRATOR

 

 

 

 

 

 

HEARING HELD

September 25, 2000

Medicine Lake, Montana

 

 

______________________________________________________________________________

 

REPRESENTATION

 

FOR THE ASSOCIATION:                                                FOR THE EMPLOYER:

Maggie Copeland                                                            Jeffrey M. Hindoien

Field Consultant                                                            Gough, Shanahan, Johnson & Waterman

P O Box 1008                                                                                                                          P O Box 1715

Glendive, MT 59330-1008                                                Helena, MT 59624-1715

BACKGROUND

The 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.

ISSUES

The 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 determination:

1.  Whether or not the Board of Trustees had just cause or good cause to implement a reduction-in-force;

2.  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

3.  Whether the District violated Article 7.1 of the collective bargaining agreement.

RELEVANT CONTRACT PROVISIONS

The following provisions of the collective bargaining agreement are relevant to the issues in dispute:

2.2 TEACHERS’ RIGHTS

. . . No teacher shall be disciplined, reprimanded, suspended or laid off without just cause . . .

7.1 TEACHER ASSIGNMENTS

. . .

Changes 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 . . .

 

STATEMENT OF FACTS

These 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 declines.

At 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.

Mike 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.

During 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.

At 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.

In 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.

At 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, and equipment.

Association 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.

Superintendent 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.

In 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.

By 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 position.

At 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.

The 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.

The 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.

SUMMARY OF THE EMPLOYER’S POSITION

The 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.

The 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 agreement.

As 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 numbers.

The 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.

It 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. Wheeler’s position.

The 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.

The 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.

There 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.

The 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 are managed.

The 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.

This 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.

The 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.

The concept of “objective criteria fairly applied” came from Texas Faculty Association v. University of Texas at Dallas, 946 F.2d 379 (5^th 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 an issue.

What 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.

In 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.

In 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.

Contrary 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.

Finally, 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.

SUMMARY OF ASSOCIATION’S POSITION

The 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.

Given 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.

The 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, 4^th Ed.).  An implied rule of reasonableness or nonarbitrariness should apply.  If no rational basis supports the decision, seniority prevails.

The 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.

In 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.

The 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.

The 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.

When 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.

The 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. 532.)

Article 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.

The 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 (5^th 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.

Under 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).)

The 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, supra.)

There 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.

The 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.

In 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,

The 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.  Massey, supra.

 

The 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.

Tenure 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 cause.

The 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.

OPINION

The 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.         

The 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.

Article 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.

There 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.

 In 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.

The 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.

The 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 unlawful.

The 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.

Arbitrator 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.

The 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.

The 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 herein.

The 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 reduced program.

The Montana Supreme Court in, Ekwortzel v. Stillwater County School District No. 31, 12 Ed. Law 45, said:

Trustees 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 (5^th Circuit 1991).

 

Neither 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.

The 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.

The 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 reduction-in-force.

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.

The 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.

To 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.

A 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[2][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.

A 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.

The 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.

There 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.

The 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.

In 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.