Kentwood Public Schools v. Kent County Education Ass'n , 206 Mich. App. 161 ( 1994 )

Jansen, P.J.

Defendant Kent County Education Association appeals as of right from a February 14, 1992, order of the Kent Circuit Court granting plaintiffs motion for summary disposition pursuant to MCR 2.116(0(10). We reverse.

This case arises out of the trial court’s order enjoining arbitration of a grievance proceeding between plaintiff and defendant. Rebecca Wingeier was a probationary teacher under a contract with the Kentwood Public Schools for the 1991-92 school year. On March 19, 1991, the school board notified her pursuant to the teacher tenure act, MCL 38.81-38.83; MSA 15.1981-15.1983, that the contract would not be renewed because of unsatisfactory service. Defendant then filed a grievance on her behalf under the collective bargaining agreement between it and the Kentwood Board of Education. Specifically, defendant alleged: (1) it did not approve an appointment to the faculty tenure advisory committee, which reviews the performance of probationary teachers, in violation of article 10(A)(l)(b)(3) of the bargaining agreement; (2) Wingeier’s nonrenewal breached article 10(B)(2) of the bargaining agreement that no teacher shall be disciplined without just cause; and (3) Wingeier was given only a one-week notice regarding her performance in violation of article 11(C)(3). The school board denied the grievance.

Defendant then filed a demand for arbitration. However, the school district filed a complaint in the circuit court, seeking to enjoin the arbitration on the basis that the grievance was not subject to arbitration under the terms of the bargaining agreement. The trial court agreed and enjoined the arbitration. Defendant contends on appeal that the grievance was subject to arbitration under the bargaining agreement. We agree with defendant.

Appellate review of a motion for summary disposition is de novo because this Court must review the record to determine if the moving party is entitled to judgment as a matter of law. Adkins v Thomas Solvent Co, 440 Mich 293, 302; 487 NW2d 715 (1992); Coleman-Nichols v Tixon Corp, 203 Mich App 645, 650; 513 NW2d 441 (1994). A motion under MCR 2.116(0(10) tests the factual basis underlying a plaintiffs claim. MCR 2.116(0(10) permits summary disposition when, except with regard to the amount of damages, there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. A court reviewing such a motion must consider the affidavits, depositions, admissions, pleadings, and any other evidence in favor of the party opposing the motion and grant the benefit of any reasonable doubt to the opposing party. Radtke v Everett, 442 Mich 368, 374; 501 NW2d 155 (1993).

The question whether a dispute is arbitrable is for the court’s determination. Kaleva-Norman-Dickson School Dist No 6 v Kaleva-Norman-Dickson School Teachers’ Ass’n, 393 Mich 583, 591; 227 NW2d 500 (1975). The court’s inquiry " 'is confined to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract. Whether the moving party is right or wrong is a question of contract interpretation for the arbitrator.’ ” Id., quoting United Steelworkers of America v American Mfg Co, 363 US 564, 568; 80 S Ct 1343; 4 L Ed 2d 1403 (1960). Absent an express provision excluding a particular grievance from arbitration, or the most forceful evidence of a purpose to exclude the claim, the matter should go to arbitration. Kaleva, supra, p 592.

The relevant provisions of the collective bargaining agreement provide:

ARTICLE 2

BOARD RIGHTS

A. The Board, on its own behalf on behalf of the electors of the district, hereby retains and reserves unto itself, without limitation, all powers, rights, authority, duties, and responsibilities conferred upon and vested in it by the laws and the Constitution of the State of Michigan, and of the United States including, and without limiting the generality of the foregoing, the right:

2. To hire all employees, and subject to the provisions of law, to determine their qualification and the conditions for their continued employment, or their dismissal, or demotion; and to promote, and transfer all such employees;

ARTICLE 10

CONTRACTUAL RELATIONS

A - TENURE COMMITTEE

1. All probationary teachers eligible for tenure with initial employment dates as of the first day of school in September shall have their performance records (formal observations and evaluation) reviewed by a faculty tenure advisory screening committee and results made known to the probationary teacher prior to March 1. Those probationary teachers whose initial employment date other than the first day of September shall have their performance records (defined above) reviewed and the results made known to the teacher at least 90 days prior to the completion of the probationary period.

a. The committee shall have the responsibility of recommending either dismissal proceedings, third year probationary status, or tenure to the principal who in turn shall recommend to the Superintendent of Schools.

b. The committee shall consist of the cognizant principal as the non-voting chairperson, one teacher with a comparable assignment, one teacher from the same building, and one teacher-at-large.

(1) The building Association representatives shall appoint the teacher-at-large.

(2) Thé chairperson shall appoint all other members and convene the committee.

(3) If a teacher with a comparable assignment is not assigned to the building, the chairperson shall appoint this member of the tenure committee; this appointment shall be approved by the building Association representative.

(4) The Tenure Committee shall be appointed and notified of their responsibilities within two weeks after the start of school or within two weeks of the date of hire of the individual concerned.

c. The approval or disapproval of the recommendation of the tenure committee by the Superintendent of Schools shall be final, subject only to the review and final action of the Board of Education.

B - DISMISSALS

1. All dismissals shall be handled in accordance with the Michigan Tenure Act as amended.

2. No teacher shall be disciplined, reprimanded, reduced in rank or compensation without just cause.

ARTICLE 11

TEACHER EVALUATION

C - OBSERVATIONS

1. There shall be at least one extended evaluative observation of classroom teaching for 30 consecutive minutes.

2. All monitoring or observation of the work performance of a teacher shall be conducted openly and with full knowledge of the teacher.

3. When improvement is needed the principal shall provide suggestions for improvement with a copy to the teacher.

ARTICLE 13

GRIEVANCE PROCEDURE AND ARBITRATION

A - GRIEVANCE DEFINITION

1. A grievance shall be defined as a complaint of an alleged violation, misinterpretation, or misapplication of provisions of the Master Agreement, Board Policy, or Administrative and Building Regulations as described in sections 2, 3, and 4 of this article.

2. Class I - Grievance - Master Agreement - Any teacher or group of teachers believing that there has been a violation, misinterpretation, or misapplication of any provision of this Agreement may process the complaint of the alleged violation through Step 5.

B - GRIEVANCE STEPS

Step 5. (Arbitration)

a. If a satisfactory disposition of the grievance is not made as a result of the meeting provided for in Step 4, the Association shall have the right to appeal the dispute to an impartial arbitrator who may be selected in accordance with the rules of the American Arbitration Association.

G - POWERS OF THE ARBITRATOR

It shall be the function of the arbitrator, and he shall be empowered, except as his powers are limited below, after due investigation, to make a decision in cases of alleged violation of the specific articles and sections of this Agreement.

1. He shall have no power to add to, subtract from, disregard, alter, or modify any of the terms of this Agreement.

2. He shall have no power to rule on any claim or complaint for which there is another remedial procedure or forum established by law or by regulation having the force of law, including any matter subject to the procedures specified in the Teacher’s Tenure Act [Act IV Public Acts (extra session), of 1937 of Michigan, as amended.].

Plaintiff argues that the teacher tenure act includes probationary teachers and that the dismissal of probationary teachers is regulated by that act. The applicable provisions of the teacher tenure act provide (1) that all teachers are probationary teachers during their first two years of teaching, MCL 38.81; MSA 15.1981; (2) that no teacher shall be required to serve more than one probationary period in any one school district or institution, although a third year of probation may be granted in certain circumstances, MCL 38.82; MSA 15.1982; and (3) that at least sixty days before the close of the school year the board shall provide the probationary teacher with a statement indicating whether the teacher’s work is satisfactory and that any probationary teacher not notified in writing within at least sixty days before the close of the school year shall be employed for the ensuing year, MCL 38.83; MSA 15.1983.

There is no dispute that Wingeier did not complete a two-year probationary period and therefore did not acquire tenure. MCL 38.91; MSA 15.1991. In Cantu v Grand Rapids Public Schools Bd of Ed, 186 Mich App 488, 491; 464 NW2d 900 (1990), this Court held that an uncertified teacher does not fall under the provisions of the teacher tenure act and therefore could not seek a remedy under the act. Similarly, Wingeier, as a probationary teacher is not tenured and cannot seek a remedy under the teacher tenure act. MCL 38.101; MSA 15.2001; MCL 38.121; MSA 15.2021. Therefore, Wingeier’s claim is not exempted by article 13(G)(2) because there is not "another remedial procedure or forum established by law” under which Wingeier may seek her remedy.

Plaintiffs reliance on Lanting v Jenison Public Schools, 103 Mich App 165; 302 NW2d 631 (1981), is misplaced. In Lanting, the only possible provision under which the arbitration could have been filed was one that stated that no teacher shall be disciplined without just cause. However, the teacher in Lanting had been dismissed and was not merely disciplined. Further, the provision came under the heading of "Teacher Evaluation and Progress.” This Court held that only if the clause was taken completely out of context could it apply to a discharge. Id., p 174. In the instant case, 'defendant contends not only that Wingeier’s dismissal violated a clause that no teacher shall be disciplined without just case (under a heading of "Dismissals”), but also that the association did not approve an appointment to the faculty tenure advisory committee in violation of article 10(A)(1) (b)(3) and that Wingeier was not given sufficient notice under article 11(C)(3).

Accordingly, we find that Wingeier was not exempted from seeking to arbitrate her claim pursuant to article 13 of the collective bargaining agreement because her claim is not within the purview of the teacher tenure act. There is no express provision in the collective bargaining agreement excluding a nonprobationary dismissal grievance from arbitration, nor is there forceful evidence of a purpose to exclude the issue of a probationary teacher’s dismissal. Kaleva, supra, p 592. Defendant’s claim that the dismissal violated articles 10(A)(l)(b)(3), 10(B)(2), and 11(C)(3) is on its face governed by the contract. This is especially so because any doubts about the arbitrability of an issue should be resolved in favor of arbitration. Huntington Woods v Ajax Paving Industries, Inc (After Remand), 196 Mich App 71, 75; 492 NW2d 463 (1992). Whether defendant is correct that the dismissal violated these provisions is for the arbitrator to determine. Kaleva, supra, p 591..

The trial court’s order granting plaintiff summary disposition and enjoining arbitration is vacated. Defendant may submit its claim to arbitration. We retain no further jurisdiction.

Fitzgerald, J., concurred.