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04/20/83 WHITEWATER EDUCATION ASSOCIATION v.

April 20, 1983

WHITEWATER EDUCATION ASSOCIATION, PETITIONER-RESPONDENT
v.
WHITEWATER UNIFIED SCHOOL DISTRICT, AND WHITEWATER SCHOOL BOARD, RESPONDENTS-APPELLANTS



Appeal from an order of the Circuit Court of Walworth County: John J. Byrnes, Judge.

Petition to Review Denied.

Scott, C.j., Voss, P.j., and Brown, J.

The opinion of the court was delivered by: Voss

The Whitewater Unified School District and the Whitewater School Board appeal from an order of the circuit court for Walworth county confirming an arbitration award. The decision of the arbitrator upheld the grievance of the Whitewater Education Association. On appeal, the appellants raise two issues: (1) was the grievance arbitrable, and, if so, (2) was the award of the arbitrator outside the scope of her authority and contrary to law. After reviewing the record, we agree with the trial court that this grievance was arbitrable and that the award was within the scope of the arbitrator's authority. In addition, we do not find the award contrary to law. Accordingly, we affirm the trial court's order.

This case centers around a controversy involving Mary and Brian Zordel and the appellants. Mary Zordel had been employed for twelve years as a physical education teacher and for eleven years as the head girls' track coach. During the 1980-81 school year, she earned $19,120. Her husband, Brian Zordel, had been employed as a social studies teacher for twelve years. His earnings for the 1980-81 school year totaled $16,745.

Both Mary and Brian Zordel were offered individual teacher contracts for the 1981-82 school year. They received notice of this renewal on March 30, 1981. Section 118.22(2), Stats., provides that teachers "shall accept or reject" such contracts by April 15. The contracts also set forth this deadline. The Zordels, however, failed to meet the April 15 deadline.

April 15, 1981 was a Wednesday, and the Whitewater schools were in session. High school principal John Newhouse received all but the Zordels' contracts on or before this date. April 16, 1981 was also a normal school day, with all schools being open. On this date, Newhouse informed Superintendent Uglow that the Zordels did not turn in their contracts. Neither Newhouse nor Uglow contacted the Zordels to ask them about their intentions. April 17, 1981 was Good Friday, and school was closed. It was on this date that the Zordels remembered that they had forgotten to turn in their contracts. On Monday, April 20, when school resumed, Brian Zordel attempted to turn in both contracts to Principal Newhouse. Principal Newhouse, however, referred him to the superintendent. Later in the day, the Zordels spoke with the superintendent and stated that they wished to turn in their contracts. Superintendent Uglow stated that he had assumed that they had secured employment elsewhere. He concluded the conversation by indicating that he would check with the school board and its attorneys to determine how the matter would be handled.

Between April 15 and April 27, the district did no planning nor did it take any other action in reliance upon the Zordels' failure to return their contracts on time. On April 27, the school board met to consider the Zordels' contract situation. On April 28, the Zordels were informed that the school board had decided not to honor their contracts.

The Whitewater Education Association then filed a grievance on behalf of the Zordels. An arbitration hearing was held on September 10, 1981, pursuant to the collective bargaining agreement entered into between the Whitewater Unified School District and the Whitewater Education Association. On December 3, 1981, an arbitration award upholding the grievance of the Whitewater Education Association was rendered. The decision award provided for the reinstatement of Mary and Brian Zordel to their former teaching positions for the 1981-82 teaching year. This award further provided that the Whitewater Unified School District was to make the Zordels financially whole again and restore all rights and benefits.

Subsequent to the arbitration award, the Whitewater Education Association filed a motion with the circuit court for Walworth county requesting the court to confirm the award. The Whitewater Unified School District filed a motion to vacate the arbitration award. On February 10, 1982, the trial court rendered a decision and an order confirming the arbitrator's award. It is this decision and order the appellants are now appealing.

The appellants first argue that the issue presented to the arbitrator was not arbitrable under the terms of the collective bargaining agreement, and, because of this, the trial court erred by affirming the award. We find, however, that the grievance was arbitrable.

In Joint School District No. 10, City of Jefferson v. Jefferson Education Association, 78 Wis. 2d 94, 101, 253 N.W.2d 536, 540 (1977), our supreme court stated: Arbitration is a matter of contract and a party cannot be required to submit to arbitration a dispute which it has not agreed so to submit, and it is in the province of the court to determine on the basis of the contract whether or not the employer is bound to arbitrate.

The court concluded that the question of substantive arbitrability -- whether the parties agreed to submit an issue to arbitration -- is a question of law for the courts to decide. Id.

In the case at bar, the parties had entered into a collective bargaining agreement. This agreement provided for the appeal of "any complaint, controversy or dispute concerning an alleged violation of the written contract." *fn1 The agreement also provided that all unresolved grievances were subject to "final and binding" arbitration. In this case, the grievants alleged that the school board's action of refusing to honor their contracts amounted to a ...


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