Detroit Federation of Teachers v. Detroit Board of Education

240 N.W.2d 225, 396 Mich. 220, 1976 Mich. LEXIS 252, 92 L.R.R.M. (BNA) 2282

• Court: Michigan Supreme Court
• Decided: April 1, 1976
• Docket: 55643, (Calendar No. 14)
• Status: Published

Opinions

Levin, J.

Section 569 of the School Code provides that "[t]he board of every district shall hire and contract with such duly qualified teachers as may be required. All contracts with teachers shall be in writing * * * ”.¹

For a number of years preceding 1972, the Detroit Board of Education employed tenured and probationary teachers, who worked with written, individual contracts, and substitute teachers, including emergency substitutes in regular positions (ESRPs), who worked without written, individual contracts.

In February, 1972, the board adopted a resolution which provided that all new teaching positions would be filled by ESRPs.² No probationary appointments were made during the 1972-73 school year.

This class action was commenced by the union in January, 1973 in behalf of teachers working without a written, individual contract.

The parties agree that under § 569 of the School Code "duly qualified” teachers are entitled to written, individual contracts evidencing the employment relationship. They do not agree on the kind of contract particular teachers were entitled to receive or what is the appropriate forum and procedure for resolution of disputes concerning the contract a particular teacher should receive.

The union contends that all teachers in regular teaching positions who are not on "continuing” (tenure) contracts are entitled to "probationary” contracts and that the circuit court should decide whether a particular teacher, although called an "ESRP”, is so entitled.

The board contends that the kind of contract a teacher receives should be determined by agreement of the parties and, if they cannot agree, the dispute should be resolved through the grievance arbitration procedure provided in the collective bargaining agreement.

The circuit court adopted the union’s position and ordered the board to enter into probationary contracts with all certified³ teachers assigned to teach in regular positions. The order for mandamus provides a procedure for resolution by the court of disputes regarding the kind of contract a teacher should receive. The Court of Appeals affirmed.⁴ We reverse.

We agree with the circuit court and the Court of Appeals that the language of § 569 is "mandatory” and the board is required to enter into a written, individual contract evidencing the employment relationship with each "duly qualified” teacher in its employ. We conclude, however, that (1) § 569 does not impose a legal duty on the board to offer a teacher a particular kind of contract; (2) under § 569 the kind of contract is to be determined by agreement of the parties; (3) the collective bargaining agreement between the board and the union states the terms and conditions of teacher employment and provides a procedure for resolving disputes arising under that agreement; (4) this is such a dispute; and (5) the circuit court erred in issuing a writ of mandamus directing the kind of contract particular teachers would receive.⁵

Before teachers unionized, the terms of a teacher’s employment were set forth in a contract between the teacher and the board embodying their agreement. Few individual teachers, however, had any real bargaining power and the contract terms were frequently imposed by the board rather than negotiated by the parties.

Now the union and the board negotiate a master collective bargaining agreement which determines the rights of the individual teachers in the bargaining unit. Individual teachers are not even nominally involved in the negotiation process; they sign contracts which are derivative of the collective bargaining agreement.

Three categories of teachers are recognized in the collective bargaining agreement negotiated by the parties in this case: tenured, probationary, and substitute. Substitute teachers are further classified as Emergency Substitutes, Class 1 and 2, and ESRPs, Class 3 and 4.* *⁶

Under the collective bargaining agreement, complaints "involving the work situation, or that there has been a deviation from, or a misinterpretation or misapplication of a practice or policy; or that there has been a violation, misinterpretation, or misapplication of any provision of” the master agreement⁷ are to be resolved through the grievance procedure provided in the agreement.

The five-step procedure, culminating in binding arbitration, is mandatory,⁸ but not exclusive. Under the agreement, grievance is "supplementary or cumulative to * * * procedures or remedies afforded to any teacher by law”.⁹

The union contends that the teachers properly eschewed the grievance procedure and sought court enforcement of their rights under the School Code in this proceeding, a remedy afforded "by law”.

We agree that the circuit court properly entertained this action and declared, pursuant to the School Code, that the board shall enter into a written, individual contract with each "duly qualified” teacher in its employ. But that court erred when it directed the board to enter into probationary contracts with certain teachers and provided for hearings regarding the status of other teachers.¹⁰

The right protected by the code is the right to a written contract evidencing the employment relationship, not to a particular kind of contract. The code contemplates that the kind of contract each teacher receives is to be decided by agreement of the parties. In this case, the representative of the plaintiff class, the union, entered into a collective bargaining agreement with the defendant school district. That agreement spells out the terms and conditions of employment and governs the possible kinds of contracts — tenured, probationary and substitute — teachers may receive. The issue whether certain teachers, called ESRPs, are entitled to probationary contracts pursuant to the collective bargaining agreement depends on the agreement of the parties.

The interpretation of agreements is manifestly appropriate business for a court. Here, however, the parties have agreed and the collective bargaining agreement provides that contract disputes, including those concerning the interpretation of the agreement, are to be resolved through the grievance procedure.

In Kaleva-Norman-Dickson School District v Kaleva-Norman-Dickson School Teachers’ Association, 393 Mich 583; 227 NW2d 500 (1975), we recently reiterated the judicial policy favoring arbitration of disputes where the collective bargaining agreement provides for arbitration as the final step of a grievance procedure.

Neither the School Code nor other law requires that there be a judicial determination of the kind of contract a teacher who is a member of a collective bargaining unit shall receive.

The determination whether particular "ESRPs” were certified and filling regular positions, and, if so, whether they were entitled to probationary contracts should be resolved by the parties themselves or through the grievance procedure.

Our limited holding that the circuit court is not the proper forum for determination of the job classification and kind of contract to which these teachers are entitled in no way portends any view of the merits of their cause.

The case is remanded to the circuit court for entry of a declaration of rights that each "duly qualified” teacher in the board’s employ is entitled to a written, individual contract evidencing the employment relationship. The circuit court may hold this case in abeyance pending determination, either by agreement of the parties or through the grievance procedure, of the kind of contract to which each teacher is entitled.¹¹ If any teacher is aggrieved by the job classification and contract offered by the board, he may file a grievance. After resolution of any dispute regarding the kind of contract to which a teacher is entitled, the circuit court may, if necessary, order the board to provide a written, individual contract of the kind awarded in arbitration.

Reversed and remanded.

Kavanagh, C. J., and Coleman and Fitzgerald, JJ., concurred with Levin, J. Lindemer and Ryan, JJ., took no part in the decision of this case.

1 MCLA 340.569; MSA 15.3569.

2 "Teacher assignments and all other assignments of new or returning personnel shall be made as ESRP assignments, not as regular or probationary appointments.”

3 The union does not seek probationary contracts for substitute teachers who are not certified.

4 Detroit Federation of Teachers v Detroit Board of Education, 50 Mich App 660; 213 NW2d 839 (1973).

The Court of Appeals relied on the teachers’ tenure act, MCLA 38.71, et seq.; MSA 15.1971, et seq., in affirming the circuit court.

The Court of Appeals suggested that the board’s policy of hiring ESRPs without written, individual contracts could enable the board to circumvent the tenure act and deny ESRPs "the possibility of tenure guaranteed by the tenure act”. Detroit Federation of Teachers v Detroit Board of Education, supra, p 663.

The tenure act provides that "[a]fter the satisfactory completion of the probationary period, a teacher shall be employed continuously by the controlling board under which the probationary period has been completed, and shall not be dismissed or demoted except as specified in this act”. MCLA 38.91; MSA 15.1991.

The "probationary period” is not defined in terms of a particular contract, but as "the first 2 school years of employment”. MCLA 38.81; MSA 15.1981. Whether a school board may properly withhold tenure status from a teacher called an ESRP who worked without a written, individual contract is not an issue in this case.

5 The union sought a writ of mandamus compelling the board to enter "into written contracts with the plaintiffs and the members of plaintiffs’ class, for the 1972-73 school year”, and to "[g]rant plaintiffs such other and further relief as shall be just and proper”.

Mandamus is an extraordinary remedy to compel performance of a clear legal duty. Here the duty is to provide a written, individual contract, not a particular kind of contract.

6 Neither the criteria for qualification as a tenured, probationary or substitute teacher nor the particular duties of each category are specified in the agreement.

The rights and benefits accorded teachers in each category vary.

An ESRP’s assignment may be "closed out” upon two days’ notice. Master Agreement, Art XII, § G. Under the teachers’ tenure act, a probationary teacher is entitled to be "notified in writing at least 60 days before the close of the school year that his services will be discontinued”. MCLA 38.83; MSA 15.1983. "Generally, probationary teachers with less than two years’ seniority will not be transferred.” Art XII, § G. There is no similar limitation on the discretion of the board to transfer ESRPs.

Group life insurance is provided to "appointed employees”. To qualify, ESRPs must "have worked in this classification for two years immediately preceding their death or retirement”. Art XVI, § B(6)(a).

"A teacher returning at the expiration of leave, has priority over a newly hired teacher, ES, ESV, and ESRP.” Art XV, § G(l).

7 Art XXI, § A.

8 "Problems and grievances shall be presented and adjusted in accordance with the following procedures: * * * .” Art XXI, § B.

9 "The grievance procedures provided in this Agreement shall be supplementary or cumulative to, rather than exclusive of, any procedures or remedies afforded to any teacher by law.” Art XXI, § F.

10 "It is Ordered that the defendant, The Board of Education of the School District of the City of Detroit * * * [is] hereby ordered to comply with said Section 569 of the School Code of 1955, as amended, and, specifically, to enter into individual, written contracts as attached hereto (being the defendant’s standard probationary contract form), with all certificated teachers (whether or not heretofore denominated 'emergency substitutes in regular positions’ (ESRP’s), and not already on continuing, annual or probationary contracts) who, on or about January 15, 1973, were assigned to teach in a regular position (i.e., other than as a temporary replacement for another teacher on illness or temporary disability leave), for the school year 1972-73, effective for each teacher the first date of his assignment; * * * and further provided that in the event a dispute arises as to inclusion of any teacher in said class, the court reserves jurisdiction to determine as necessary the identity and individual effective dates of persons in the said class * * * .”

11 Whatever kind of contract these teachers receive, they will be derivative contracts governed by the terms of the master collective bargaining agreement. It is, therefore, of no consequence that forms of derivative contracts for the several classifications of substitute teachers may not have been drafted. The drafting of such forms does not require further bargaining as the terms and conditions of a substitute teacher’s employment have been agreed upon and are embodied in the collective bargaining agreement.