Cannon County Board of Education v. Goldy Wade And Cannon County Education Association

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

August 7, 2007 Session

CANNON COUNTY BOARD OF EDUCATION v. GOLDY WADE and

CANNON COUNTY EDUCATION ASSOCIATION

Direct Appeal from the Chancery Court for Cannon County

No. 02-102 Hon. Robert E. Corlew, III., Judge

No. M2006-02001-COA-R3-CV - Filed July 31, 2008

Plaintiff’s employment contract as a probationary teacher was not renewed. He filed a grievance

under the agreement existing between the local board of education and the local professional

employees’ association. As the last step in the grievance procedure, the teacher sought binding

arbitration. The board filed an action seeking a declaratory judgment that it was not required to

arbitrate the former employee’s grievance. The trial court dismissed that action, and on appeal this

court reversed and remanded for further consideration by the trial court. The trial court then ruled

that the issues raised by the teacher were subject to arbitration, and the board again appealed to this

court. We hold that a locally negotiated agreement cannot be interpreted to delegate to an arbitrator

the decision of whether to renew a probationary teacher’s contract because state statutes clearly give

that decision to local school officials. Consequently, we reverse the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed.

PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which, HERSCHEL PICKENS FRANKS,

P.J. and SHARON G. LEE, J., joined.

Charles W. Cagle, Samuel L. Jackson and Emily R. Ogden, Nashville, Tennessee, for Appellant,

Cannon County Board of Education.

Richard L. Colbert and Courtney L. Wilbert, Nashville, Tennessee, for Appellees, Goldy Wade and

the Cannon County Education Association.

OPINION

Goldy Wade (“Wade”) was employed by the Cannon County Board of Education (“Board”)

for three school years, 1999-2000 through 2001-2002. When Wade was not rehired for the 2002-

2003 school year he filed a grievance pursuant to a collective bargaining agreement entered into by

the Board and Cannon County Education Association (“CCEA” or “Association”) and, as the last

step in the grievance process, sought arbitration. On October 14, 2002 the Board filed a complaint

seeking declaratory judgment and injunctive relief. The Board sought a declaration that Wade’s

grievance was not arbitrable under the collective bargaining agreement and a temporary injunction

prohibiting Wade from pursuing arbitration until a final judgment was rendered in the case. The

CCEA then moved to intervene as a defendant, pursuant to Rule 24 of the Tennessee Rules of Civil

Procedure, which was granted. Wade and the CCEA then filed a Motion to Dismiss, which the

Chancellor granted, and the Board appealed.

This court held that it was unable to conclude that there was no set of facts the Board could

present that would warrant the relief sought. Cannon County Bd. of Educ. v. Wade, 178 S.W.3d 725,

729 (Tenn. Ct. App. 2004). The case was remanded with a directive to the trial court: “If the trial

court, in its discretion, determines that this is an appropriate case for summary judgment, then it

should determine whether and under what conditions the School Board would be required to submit

its decision not to renew Mr. Wade’s contract to binding arbitration under the collective bargaining

agreement.” Id. at 730-731.1 Additionally, the court articulated what it saw as the ultimate issue

to be determined at trial: “[W]hether a non-tenured teacher, whose contract of employment for a

specific term was not extended, is entitled to employ binding arbitration pursuant to step five of the

grievance procedure to ‘extend’ the term of his employment contract beyond the term expressly

provided in the individual contract.” Id.

1

Further, this court held that the collective bargaining agreement pertained to all teachers, including non-tenured

teachers such as Wade, and supported this finding based on the lack of distinction in the agreement between tenured and

non-tenured teachers and the provision in the agreement that all employees with certificates to teach were covered by

the agreement. As W ade had a certificate to teach, the court reasoned that he was a third party beneficiary of the

collective bargaining agreement, at least while he was employed. Id. at 729. Under the law of the case doctrine “an

appellate court’s decision on an issue of law is binding in later trials and appeals of the same case if the facts on the

second trial or appeal are substantially the same as the facts in the first trial or appeal.” Watson’s Carpet and Floor

Covering, Inc. v. McCormick, 247 S.W .3d 169, 181 (Tenn. Ct. App. 2007). Additionally, since our earlier opinion in

this case, the T ennessee Supreme Court has found that the EPNA authorizes negotiations on behalf of “professional

employees” and only such “professional employees,” as defined in Tenn. Code Ann. § 49-5-603(11), are entitled to any

“contractual protections emanating from the EPNA.” Lawrence County Educ. Ass’n v. Lawrence County Bd. of Educ.,

244 S.W .3d 302, 316 (Tenn. 2007). “Professional employee” is defined as “any person employed by any local board

of education in a position which requires a license issued by the department of education.” Tenn. Code Ann. § 49-5-

602(11). Because anyone employed to teach must have a license, Tenn. Code Ann. § 49-5-403(a), any reference to

professional employees in the negotiated agreement would include certified non-tenured teachers like Mr. W ade.

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Upon remand, the parties filed cross claims for summary judgment. The trial court granted

the defendants’ motion, denied the Board’s motion, and ordered the Board to proceed with the

arbitration of the grievance filed on behalf of Mr. Wade. The Board appealed.

I. ISSUES AND STANDARD OF REVIEW

The ultimate issue in this appeal is whether the grievance filed by Wade pursuant to the

locally negotiated agreement is arbitrable, or specifically, whether the Board can be compelled to

submit the non-renewal of Mr. Wade’s employment to binding arbitration. Resolution of that issue,

however, requires a determination of whether certain decisions that, by statute, are the responsibility

or duty of the local school officials can be delegated to an arbitrator. Stated another way, this case

raises the question of whether a locally negotiated agreement, or any term thereof, can be interpreted

or applied to limit statutorily created discretion of local school officials regarding the continued

employment of probationary teachers by assigning ultimate decision-making authority to a third party

who is not charged with responsibility for local school systems.

A trial court’s decision on a motion for summary judgment enjoys no presumption of

correctness on appeal. Walker v. Sunrise Pontiac-GMC Truck, Inc., 249 S.W.3d 301, 307 (Tenn.

2008); Draper v. Westerfield, 181 S.W.3d 283, 288 (Tenn. 2005). We review the summary judgment

decision as a question of law. Chattanooga-Hamilton County Hosp. Auth. v. Bradley County, 249

S.W.3d 361, 364 (Tenn. 2008); Finister v. Humboldt Gen. Hosp., Inc., 970 S.W.2d 435, 437

(Tenn.1998). Accordingly, this court must review the record de novo and make a fresh

determination of whether the requirements of Tenn. R. Civ. P. 56 have been met. Eadie v. Complete

Co., Inc., 142 S.W.3d 288, 291 (Tenn. 2004); Blair v. West Town Mall, 130 S.W.3d 761, 763 (Tenn.

2004); Staples v. CBL & Assoc., 15 S.W.3d 83, 88 (Tenn. 2000).

The requirements for the grant of summary judgment are that the filings supporting the

motion show that there is no genuine issue of material fact and that the moving party is entitled to

judgment as a matter of law. Tenn. R. Civ. P. 56.04; Chattanooga-Hamilton County Hosp. Auth.,

249 S.W.3d at 365; Blair, 130 S.W.3d at 764; Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993). In

our review, we must consider the evidence presented at the summary judgment stage in the light

most favorable to the non-moving party, and we must afford that party all reasonable inferences.

Sunrise Pontiac-GMC Truck, Inc., 249 S.W.3d at 307; Draper, 181 S.W.3d at 288.

In resolving the appeal we are also called upon to construe and apply statutes, and we will

apply standards that are equally well settled. Interpretation of statutes and their application to facts

are questions of law. Chattanooga-Hamilton County Hosp. Auth., 249 S.W.3d at 365; Sunrise

Pontiac-GMC Truck, Inc., 249 S.W.3d at 307; Memphis Publ’g Co. v. Cherokee Children & Family

Servs., Inc., 87 S.W.3d 67, 74 (Tenn. 2002). Consequently, the presumption of correctness in Tenn.

R. App. P. 13(d) does not apply, and we review the issues de novo. Chattanooga-Hamilton County

Hosp. Auth., 249 S.W.3d at 365; King v. Pope, 91 S.W.3d 314, 318 (Tenn. 2002). Since statutes

define the authority of local boards of education and local directors of schools, the scope of a board’s

authority to contract is a question of law, subject to de novo review. Arnwine v. Union County Bd.

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of Educ., 120 S.W.3d 804, 806 (Tenn. 2003); Heatherly v. Campbell County Bd. of Educ., No.

E2004-02004-COA-R3-CV, 2005 WL 562752, *3 (Tenn. Ct. App. March 10, 2005).

The primary rule of statutory construction is to ascertain and give effect to the intent or

purpose of the legislature in enacting the provision at issue. In re C.K.G., 173 S.W.3d 714, 721-22

(Tenn. 2005); City of Cookeville v. Humphrey, 126 S.W.3d 897, 901 (Tenn. 2004); LensCrafters,

Inc. v. Sundquist, 33 S.W.3d 772, 777 (Tenn. 2000); Blount Co. Educ. Ass’n v. Blount Co. Bd. of

Educ., 78 S.W.3d 307, 314-15 (Tenn. Ct. App. 2002), (stating that “the role of the courts in

construing statutes is to ascertain and give effect to the legislative intent.”) Courts must do so

without unduly restricting or expanding a statute beyond its intended scope. In re C.K.G., 173

S.W.3d at 721-22; City of Cookville, 126 S.W.3d at 901.

“Legislative intent and purpose is to be ascertained primarily from the natural and ordinary

meaning of the language used.” Tuggle v. Allright Parking Sys., Inc., 922 S.W.2d 105, 107 (Tenn.

1996); City of Cookville, 126 S.W.3d at 901; State v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000).

We must examine any provision within the context of the entire statute and in light of its

over-arching purpose and the goals it serves. Flemming, 19 S.W.3d at 197; Cohen v. Cohen, 937

S.W.2d 823, 828 (Tenn. 1996); T.R. Mills Contractors, Inc. v. WRH Enters., LLC, 93 S.W.3d 861,

867 (Tenn. Ct. App. 2002). Additionally, where more than one statute is at issue, “A construction

which places one statute in conflict with another must be avoided; therefore, we must resolve any

possible conflict between the statutes in favor of each other, so as to provide a harmonious operation

of laws.” Blount County Educ. Ass’n, 78 S.W.3d at 314-15.

The parties herein have also framed some issues in terms of contract law. The question of

interpretation of a contract is a question of law. Guiliano v. Cleo, Inc., 995 S.W.2d 88, 95 (Tenn.

1999). Therefore, the trial court’s interpretation of a contractual document is not entitled to a

presumption of correctness on appeal. Allstate Ins. Co. v. Watson, 195 S.W.3d 609, 611 (Tenn.

2006); Angus v. W. Heritage Ins. Co., 48 S.W.3d 728, 730 (Tenn. Ct. App. 2000). This court must

review the document ourselves and make our own determination regarding its meaning and legal

import. Hillsboro Plaza Enters. v. Moon, 860 S.W.2d 45, 47 (Tenn. Ct. App. 1993).

II. FACTUAL BACKGROUND

The essential facts are not in dispute. Mr. Wade was employed as a certified, non-tenured,

probationary teacher in the Cannon County School System for three years. Wade was notified by

the Board of the non-renewal of his contract prior to April 15, 2002 in compliance with the

Continuing Contract Law, Tenn. Code Ann. § 49-5-409(b)(2). Wade and the CCEA then filed a

grievance pursuant to the locally negotiated agreement (sometimes called the collective bargaining

agreement) and asserted that the Board had violated three provisions of the Agreement. The specific

provisions listed prohibit reprisals because of participation in a grievance; require fair treatment

including notification of deficiencies and due process; and prohibit discrimination in the hiring,

training, assignment, promotion, transfer or discipline of teachers on account of membership in the

association, activities on behalf of the association or on the basis of race, creed, color, religion,

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national origin, age, sex, domicile, marital status or physical handicap. On his grievance form, Mr.

Wade identified the date of the alleged violation as “Receipt of non-renewal letter.”

The locally negotiated agreement provided a grievance procedure, first defining “grievance”

as “any written claim by an employee or employees that there has been a violation, misinterpretation,

or misapplication of the terms of this agreement.” The procedure has five steps. Step 4 is a review

by the Board and requires that the Board hold a hearing if requested by the employee and render a

decision in writing. The record does not contain a copy of the Board’s written decision in Mr.

Wade’s grievance, but we must assume that the Board denied him relief since he proceeded to the

next step. Step 5 of the grievance process is described in the agreement, in pertinent part, as follows:

If the employee(s) is not satisfied with the disposition of the grievance at Step 4, the

employee may petition the CCEA to request the Federal Mediation Conciliation

Service to submit a panel of five (5) arbitrators who are specially qualified to hear

public sector grievances. . . . If the services of the Federal Mediation Conciliation

Service are not available, the parties shall request arbitration through the American

Arbitration Association. . . .

The arbitrator’s decision will be in writing and will set forth his findings, reasonings,

and conclusions on the issues submitted. The arbitrator will be without power or

authority to make any decision which requires the commission of an act prohibited

by law or which is violative of the terms of this agreement. The decision of the

arbitrator shall be binding. The arbitrator shall have no power to alter, add to, or

detract from the provisions of the agreement. . . .

III. THE EDUCATION PROFESSIONAL NEGOTIATION ACT AND ARBITRATION

The locally negotiated agreement existing between the parties in this case was entered into

pursuant to the Education Professional Negotiation Act, Tenn. Code Ann. § 49-5-601 et. seq. Part

of that Act authorizes the inclusion of an agreement to arbitrate:

A board of education and a recognized professional employees’ organization who

enter into an agreement covering the terms and conditions of professional service

and/or other matters of mutual concern may include in such agreement procedures

for final and binding arbitration of such disputes as may arise involving the

interpretation, application or violation of such agreement.

Tenn. Code Ann. § 49-5-612(c).

The quoted provision does not further describe the procedures to be followed in any such

“final and binding arbitration.” Instead, it authorizes the parties to design and agree to the

procedures they will use. Another provision in the EPNA defines arbitration as “the process of

determination of disputed matters by submission to private unofficial persons selected for a purpose,

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and in a manner consistent with this part.”2 Tenn. Code Ann. § 49-5-602 (1). Since Tennessee

statutes on arbitration, including the Tennessee Arbitration Act, are inapplicable to arbitrations

authorized under the EPNA, Tenn. Code Ann. § 49-5-602(1), neither the courts nor the parties can

imply into an agreement under the EPNA arbitration procedures or rules found in state statutes.

The General Assembly has explicitly stated that “Arbitration under this part [the EPNA] is

not governed by the provisions of title 29, chapter 5.” Tenn. Code Ann. § 49-5-602(1). Title 29,

chapter 5 contains the statutory provisions governing arbitration including, specifically, Tennessee’s

version of the Uniform Arbitration Act, Tenn. Code Ann. § 29-5-301 et. seq. In addition to

establishing various rules regarding procedure used in arbitration, that Act contains the provisions

governing court enforcement of arbitration agreements and court modification or vacation of

arbitration awards. Tenn. Code Ann. §§ 29-5-303 and 29-5-312 to -315. By express directive from

the legislature, those statutory rules do not apply or govern the arbitration at issue in the case before

us.

Because of that express directive, we find unpersuasive the Association’s arguments that we

must apply various approaches to interpretation of an agreement to arbitrate. For example, the

Association argues that we must resolve all doubts regarding the scope of an arbitration agreement

in favor of arbitration based on the policy favoring arbitration as a means of resolving disputes.

However, the principle the Association argues and the policy underlying it are established in cases

interpreting and applying arbitration statutes, state or federal. The cases cited by the Association are

based on the Federal Arbitration Act or the Tennessee Arbitration Act.3 The Tennessee Act

specifically does not apply to an agreement to arbitrate in a locally negotiated agreement between

the local board and local professional employees’ association,4 and we know of no basis for

application of the Federal Arbitration Act, and no party has asserted that it applies.

2

“This part,” the EPNA, also includes the use of mediation and “fact-finding/advisory arbitration” as part of the

process of negotiation toward an agreement, Tenn. Code Ann. § 49-5-613(b), and describes the role and procedure for

any such “arbitrator.” Tenn. Code Ann. § 49-5-613(c). Therefore, we interpret the “selected for a purpose, and in a

manner consistent with this part” language as referring to the two different roles envisioned for persons called

“arbitrators.”

3

For example, the Association relies on Dale Supply Co. v. York Internat’l Corp., No. M2002-01408-COA-R3-

CV, 2003 W L 22309461 at *4 (Tenn. Ct. App. Oct. 9, 2003). Dale was decided under the Federal Arbitration Act, as

were Pyburn v. Bill H eard Chevrolet, 63 S.W .3d 351, 357 (Tenn. Ct. App. 2001) and Frizzell Constr. Co. Inc., v.

Gatlinburg, L.L.C., 9 S.W .3d 79 (Tenn. 1999). Other Tennessee cases similarly holding that all doubts should be

resolved in favor of arbitration were decided under the Tennessee Uniform Arbitration Act. See, e.g., Merrimack Mut.

Fire Ins. Co. v. Batts, 59 S. W . 3d 142 (Tenn. Ct. App. 2001); Wachtel v. Shoney’s Inc., 830 S.W . 2d 905, 908 (Tenn.

Ct. App. 1991).

4

In its brief, the Association acknowledges that the Tennessee Arbitration Act does not apply and that some of

the cases it relied upon arose under that Act.

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Consequently, we find authority that is based on either state or federal statutes on arbitration,

including holdings regarding the role of the courts in reviewing or enforcing agreements to arbitrate,

non-controlling and of little relevance.5 In the case before us, however, we need not resolve the

question of what principles apply when courts are called upon to resolve disputes over arbitration

agreements in locally negotiated agreements under the EPNA, as important as that question may be

for future disputes.

If the determinative question in this appeal were whether the parties agreed to arbitrate the

dispute over the non-renewal of Mr. Wade’s employment contract, we would apply general contract

principles. In the absence of statutory guidelines, we would usually look to the parties’ agreement

to explain the type of dispute resolution to be followed. Private parties may agree to resolve their

disputes in any legal way they choose. They are not limited to formal methods of dispute resolution

recognized and defined by statute or rule, such as arbitration, mediation, or other methods described

in Rule 31 of the Tennessee Supreme Court Rules. Instead, private parties may agree on “any

mutually satisfactory procedure that is not illegal or contrary to public policy.” Team Design v.

Gottlieb, 104 S.W.3d 512, 517 (Tenn. Ct. App. 2002).6 Of course, a local board of education is not

5

W e are aware that appellate courts in this state have not consistently taken this position. In some prior cases,

in fact, our courts have quoted and applied some of the generally accepted rules regarding court review of arbitrations

and arbitration agreements. See, e.g., Rhea-Dayton Educ. Ass’n v. Rhea County Bd. of Educ., No. 03A01-9401-CH-

00021, 1994 W L 413180, *2-3 (Tenn. Ct. App. Aug. 9, 1994) (relying on a provision of Tennessee’s version of the

Uniform Arbitration Act for the standard under which a court may vacate an arbitrator’s award and relying on non-EPNA

cases applying that standard). In a footnote in Marion Co. Bd. of Educ. v. Marion Co. Educ. Ass’n, 86 S.W . 3d 202

(Tenn. Ct. App. 2001), this court stated it did not disagree with the argument that courts are limited in addressing the

merits of a grievance submitted to arbitration, which argument was based on cases applying federal or state statutes. Id.

at 213 n. 14. However, we went on to explain that we did not view the question before us as whether the employee’s

transfer was subject to arbitration, or the merits of the transfer, but, instead the question was whether the provisions in

the locally negotiated agreement were beyond statutory authority and unenforceable. Id. Similarly, in Lawrence County

Educ. Ass’n., the Court relied upon Tenn. Code Ann. § 29-5-313, accurately describing that provision as part of the

Uniform Arbitration Act, for the proposition that courts may vacate an arbitrator’s decision when the arbitrator exceeds

his powers or goes beyond the scope of authority established in the arbitration agreement. 244 S.W .3d at 318-19. While

the Court determined that an arbitrator’s award that interfered with a director’s authority to appoint coaches was subject

to being vacated as exceeding the arbitrator’s powers, id., there are legal bases other than the arbitration statutes for a

court declining to enforce an agreement in a way that contravenes statutes. In each of these three opinions, there is no

indication the court was made aware of the statutory exclusion of arbitrations under the EPNA from coverage of

Tennessee arbitration statutes. In one case, however, the court was clearly aware of Tenn. Code Ann. § 49-5-602(1) and

considered it. In Metro. Nashville Educ. Ass’n v. Metro. Bd. of Public Educ., No. M2005-00747-COA-R3-CV, 2006

W L 2619982 (Tenn. Ct. App. Sept. 12, 2006) (perm. app. granted and case remanded for reconsideration in light of

Lawrence County Educ. Ass’n), this court declined to agree that Tenn. Code Ann. § 49-5-602 limited the court’s function

to enforcing an arbitrator’s decision where the parties agreed to final and binding arbitration, id., at *4, but also declined

to hold that arbitration pursuant to an EPNA agreement is subject to common-law standards for review of arbitration

agreements. Id. at *5. Instead, the court held that courts could decide, as a “gateway” issue the validity or applicability

of an agreement to arbitrate, id., and that title 49 anticipates, at a minimum, judicial review of the permissible scope of

the collective bargaining agreement. Id., at *4.

6

The alternative to applying contract principles would be to apply common law regarding arbitration agreements.

Prior to the adoption of statutes establishing a policy favoring arbitration, the common law did not indicate a preference

for enforcing agreements to arbitrate or any limitations on the courts in interpreting such agreements. To the contrary,

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a private party but, instead, is a statutorily-created local government entity. That status requires a

different preliminary inquiry.

We believe the issue to be resolved in this appeal is whether the locally negotiated agreement

can be interpreted or applied to require binding arbitration of a decision not to renew a probationary

teacher’s employment contract where statutory and other authority reserve that decision to the broad

discretion of local school officials.

IV. LIMITATIONS ON PROVISIONS OF LOCALLY NEGOTIATED AGREEMENTS

The Association argues that this court’s role is limited to determining whether the parties

herein agreed to arbitrate.7 We disagree in this case.

Local boards of education are creatures of state statute, and their authority is limited to that

explicitly bestowed on them. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706,

710 (Tenn. 2001) (applying Dillon’s Rule, which “is a canon of statutory construction that calls for

the strict and narrow construction of local government authority.”) That narrow construction applies

to a local government’s authority to contract. Arnwine v. Union County Bd. of Educ., 120 S.W.3d

804, 809 (Tenn. 2003) (holding that school boards have no statutory authority to enter into multi-year

contracts with “assistant superintendents” because they have no authority to enter into such contracts

with teachers). If there is any fair doubt as to whether a local governmental entity, such as a board

of education, possesses a particular authority, courts should resolve that doubt against the existence

of the authority. S. Constructors, Inc., 58 S.W.3d at 710.

Tennessee Code Annotated § 49-5-612(c), quoted above, which authorizes the inclusion in

a locally negotiated agreement of a provision for final and binding arbitration, does not address the

substantive terms that may be included in an agreement to arbitrate. Further, it cannot be considered

a blanket authorization for boards of education to agree to arbitrate any or all disputes or for the

courts were frequently hostile to arbitration and, under pre-FAA common law, parties could revoke an agreement to

arbitrate at will. See 6 Bruner & O’Connor Construction Law § 20.2; 4 Am. Jur. 2d Alternative Dispute Resolution §

11. In Metro. Nashville Educ. Ass’n, this court noted that the trial court had applied Bright v. Ford, 58 Tenn. (11Heisk)

252 (1872), as establishing the common law in this state for court review of arbitration awards. 2006 W L 26199982 at

*3. As explained in this opinion, we need not resolve the question of what standards to apply in lieu of those established

in statute or opinions based on statute.

7

W e point out that the Association’s argument that we must apply that limited scope of judicial inquiry relies

on authority based on arbitration statutes, which, as discussed earlier, are not controlling in this case. However, the

Association asserts that the general principle they advocate remains the same whether the case is decided under the

Tennessee Arbitration Act, the National Labor Relations Act, the Railway Labor Act, or the Federal Arbitration Act.

W e have been shown no basis for the application of any of those statutes to the locally negotiated agreement that is

before us. This court has previously declined to resort to authority interpreting federal statutes in cases involving an

agreement under the EPNA, even as persuasive authority. See Blount County Educ. Ass’n v. Blount County Bd. of Educ.,

78 S.W.3d 307, 317 n.5 (Tenn. Ct. App. 2002); Hamblen County Educ. Ass’n v. Hamblen County Bd. of Educ., 892

S.W .2d 428, 432 n. 8 (Tenn. Ct. App. 1994).

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inclusion of delegation to an arbitrator any or all questions regarding the administration of local

school systems.

In the EPNA the legislature has set out the general topics or subject matter that must be

negotiated, describing them as “conditions of employment.” Tenn. Code Ann. § 49-5-611(a). They

include: (1) Salaries or wages; (2) Grievance procedures;8 (3) Insurance; (4) Fringe benefits, but not

to include pensions or retirement programs of the Tennessee consolidated retirement system; (5)

Working conditions; (6) Leave; (7) Student discipline procedures; and (8) Payroll deductions. Id.

Additionally, the parties may, but are not required to, agree to “discuss other terms and conditions

of employment in service.” Tenn. Code Ann. § 49-5-611(b). However, just because a general topic

or subject matter is properly included in a locally negotiated agreement does not mean that any

particular provision, or proposal as the legislature terms it, can be included or enforced.

To the contrary, the legislature has expressly limited the terms of any locally negotiated

agreement by stating that the scope of such agreement shall not include proposals contrary to:

(1) Federal or state law or applicable municipal charter;

(2) Professional employee rights defined in this part; and

(3) Board of education rights contained in this title.

Tenn. Code Ann. § 49-5-612(a). Further, the legislature did not intend, by adoption of the EPNA,

to alter the assignment of duties made elsewhere in statutes pertaining to local administration of

schools. Marion County Bd. of Educ. v. Marion County Educ. Ass’n., 86 S.W.3d 202, 208 (Tenn.

Ct. App. 2001). The legislature has made that intent plain, stating that the “rights and

responsibilities of boards of education, directors of schools and professional employees as contained

in this title are not statutorily modified or repealed by this part.” Tenn. Code Ann. § 49-5-604.

It is the role and the duty of the courts to determine the scope of authority of a local school

board. Arnwine, 120 S.W.3d at 807-08. Similarly, this court’s role includes determining whether

a specific provision is within the authorized scope of a locally negotiated agreement and whether a

provision or combination of provisions can be enforced if the result is contrary to statute. Marion

County Bd. of Educ., 86 S.W.3d at 212-13 (holding that a provision in a locally negotiated agreement

could not be enforced if it was beyond statutory authority and examining the relevant statutes);

Metro. Nashville Educ. Ass’n, 2006 WL 2619982, at *4 (stating that the statutory scheme

“anticipates, at minimum, judicial review of the permissible scope of the agreement”); see also

Blount County Educ. Ass’n, 78 S.W.3d 307 (interpreting provisions of the EPNA to determine what

topics were mandatory subjects of negotiation and which were permissive); Heatherly v. Campbell

County Bd. of Educ., 2005 WL 562752, at *3 (holding automatic renewal clause of contract between

director and board unenforceable as beyond the authority of the board because the statute allows a

renewal of a contract with a director, but not an extension).

8

W hile the parties must negotiate grievance procedures, there is no requirement that they agree to binding

arbitration as part of those procedures.

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It is important to distinguish between general subjects that are authorized for negotiation and

specific terms, or more precisely the interpretation and application of those terms. Any provision,

regardless of general subject matter, that is contrary to state law or contrary to rights given by statute

to local school administrators is beyond the authorized scope of a locally negotiated agreement and

is unenforceable. Further, neither the courts nor an arbitrator can interpret or apply a provision, or

a combination of provisions, in a way that produces a result contrary to statute.

The Tennessee Supreme Court’s recent opinion in Lawrence County Educ. Ass’n v. Lawrence

County Bd. of Educ., 244 S.W.3d 302 (Tenn. 2007), reaffirms that courts may and must determine

whether a provision in a locally negotiated agreement is consistent with the statutes governing such

agreements and those governing local administration of schools. The Court stated that a primary

issue in that case was “whether transfer authority over school personnel is a proper subject of

negotiation in the collective bargaining process.” Id. at 309. Thus, it is clear that court inquiry into

a provision of a locally negotiated agreement to determine whether it is within the board’s authority

or contrary to statute is appropriate, since a provision outside that authority or contrary to statute

cannot be enforced and cannot be interpreted or applied by an arbitrator or a court in a way that

contradicts statute. Additionally, while the Court determined that teacher transfers were appropriate

subjects for the locally negotiated agreement, it determined that, regardless of the language of the

locally negotiated agreement, coaching and other assignments that do not require a license are not

subject to the collective bargaining process because of the wording of specific provisions of the

EPNA. Lawrence County Educ. Ass’n, 244 S.W.3d at 317-18.

The Association maintains, however, that “the very essence of the EPNA is to authorize

contractual modifications of rights and responsibilities of the parties.” In other words, the

Association asserts that the board may contractually limit its statutory authority or that of the director

of schools (specifically that regarding renewal of contracts with probationary teachers), delegate its

statutory decision-making duties, give up its statutory rights, or create rights or remedies for

professional employees that do not exist by statute.9

Whether that position is correct is the fundamental issue in this case. As explained below,

a non-tenured teacher whose employment is not renewed has no cause of action in the courts of this

state, and courts will not examine the reasons, or lack thereof, of such a decision by a board of

education and director of schools. The Association’s position is that a locally-negotiated agreement

can create additional restrictions on a decision not to renew a non-tenured teacher’s contract and that

an arbitrator can enforce those restrictions. Presumably, that would include an arbitrator decision

to renew the employment contract. Thus, an arbitrator, not the director of schools or the local board

of education, could decide who taught in the local schools.

9

Necessarily, that argument assumes that the board may expand its authority to contract when it comes to a

locally negotiated agreement.

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We do not believe the law allows that result. In Lawrence County Educ. Ass’n v. Lawrence

County Bd. of Educ., the Court held that an arbitrator’s decision cannot be enforced in contravention

of statutes governing local administration of schools, 244 S.W.3d at 318, and that an arbitrator

interpreting a locally negotiated agreement could not intercede in the director of schools’ authority

to appoint coaches because that authority is granted by statute to the director. Id. at 318-19. Thus,

while the Court found that transfers might appropriately be included in a locally negotiated

agreement, it clearly found that such an agreement could not be interpreted to give statutory duties

of a local school official to an arbitrator.

V. ENCROACHMENT ON DUTY OF DIRECTOR OF SCHOOLS

In this appeal the Board has argued that the duty and authority to decide not to renew an

untenured teacher’s contract lies with the director of schools and, consequently, an agreement

between the Board and the Association cannot limit or modify those powers or delegate them to an

arbitrator, relying on the holding in Marion Co. Bd. of Educ. v. Marion Co. Educ. Ass’n, 86 S.W.

3d 202 (Tenn. Ct. App. 2001). For two reasons, we find this argument unavailing.

First, certain holdings in the superceding decision in Lawrence County Educ. Ass’n. limit the

Board’s argument. In that opinion the Court held that the legislature’s language that “transfers shall

be acted upon in accordance with board policy and any locally negotiated agreement” compelled it

to conclude that the authority of the director to transfer tenured teachers was subject to board of

education policy and the terms of the locally negotiated contract. 244 S.W.3d at 313. Much of the

reasoning in Lawrence County involved the relationship and authority of the board and the director

of schools as to transfer decisions. The Court concluded that the legislature had “confirmed the

traditional powers of the board of education” with regard to transfers. Id. at 314.

The duty of the director to non-renew personnel is also subject to the requirement that it be

“consistent with locally negotiated agreements.” Tenn. Code Ann. § 49-2-301(b)(1)(EE).10 Further,

Tenn. Code Ann. § 49-2-301(b)(1)(HH) provides: “[a]ll actions of the directors or their designees

shall be consistent with the existing board policies, rules, contracts and regulations.”

Second, the question of division of authority between the board and the director is answered,

in the context of a decision not to reelect a probationary teacher, by relevant statutes. While it is true

that statutorily it is the duty of the director of schools to “non-renew . . . all personnel,” Tenn. Code

10

Specifically Tenn. Code Ann. § 49-2-301(b)(1)(EE) provides:

It is the duty of the board of education to assign to its director of schools the duty to:

(EE) W ithin the approved budget consistent with existing state laws, board policies and locally

negotiated agreements covering licensed personnel, to employ, transfer, suspend, non-renew and

dismiss all personnel, licensed or otherwise, except as provided in § 49-2-203(a)(1) and in chapter 5,

part 5 of this title. Nothing in this subdivision shall be construed to alter, diminish, or supersede the

Education Professional Negotiations Act, compiled in chapter 5, part 6 of this title.

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Ann. § 49-2-301(b)(1)(EE), and to “notify such teachers [eligible for tenure] of their failure of

reelection pursuant to § 49-2-301(a)(J),” the local board of education is also given a role in the

decision not to renew or reelect. Any notice of a failure of reelection must include “a statement of

prior authorization by a majority vote of the membership of the board.” Tenn. Code Ann. § 49-5-

409(b)(1).

Additionally, a local board of education may choose to provide notice “to probationary

teachers of specific reasons for failure of reelection pursuant to this title.” Tenn. Code Ann. § 49-2-

203(b)(8). Where a board chooses to exercise that authority and provide such notice, the teacher

must be given, upon request, “a hearing to determine the validity of the reasons given for failure of

reelection” and a written decision from the board “regarding continued employment of the teacher.”

Id.11 Therefore, a board has statutory authority to grant itself the right to review a decision not to

renew a probationary teacher’s employment. Consequently, the Board’s argument herein that a

locally negotiated agreement cannot encroach on authority statutorily granted to the director of

schools is unpersuasive in this context.

VI. LAW GOVERNING NON -RENEWAL OF PROBATIONARY TEACHERS

Mr. Wade was a non-tenured teacher whose employment was not renewed pursuant to and

in accordance with Tenn. Code Ann. § 49-5-409(b). Under that statute, teachers “in service” shall

continue in such service until they receive written notice of their dismissal or “failure of reelection.”

Tenn. Code Ann. § 49-5-409(a). To be effective, a notice of non-renewal (or failure of reelection)

must be received prior to April 15 to be applicable to the next school year. Tenn. Code Ann. § 49-5-

409(b). Essentially, teachers are employed on renewable one-year contracts, consistent with the

school year. Arnwine, 120 S.W.3d at 808 (holding that the General Assembly did not intend to grant

local school boards the authority to enter into multi-year contracts with teachers). Mr. Wade had

been employed for three one-year terms pursuant to three contracts between himself and the board

of education. Cannon Co. Bd. of Educ. v. Wade, 178 S.W.3d 725, 728 at n. 1 (Tenn. Ct. App. 2005).

The non-renewal of Mr. Wade’s contract also resulted in his failure to obtain tenure.12 At

the time in question, the statutes governing tenure included a provision in Tenn. Code Ann. § 49-5-

504(b) that stated:

Upon completion of the probationary period, any teacher who is reemployed or

retained in the system is entitled to the tenure status for which such teacher is

11

The statute includes certain provisos, including that: (D) Nothing contained herein shall be construed to grant

tenure or the expectation of continued employment to any person. Id. The record before us does not include the notice

sent to Mr. W ade, so we do not know if this section applies, and the parties have not addressed it.

12

Although the denial of tenure is not explicitly raised in the grievance, there is a possibility that Mr. W ade

would attempt to have an arbitrator renew his contract and order that tenure be granted him on the basis of Tenn. Code

Ann. § 49-5-504(b), another decision that is outside the authority of an arbitrator since state statute gives that authority

to local boards. Interpreting the agreement so as to allow an arbitrator to decide tenure would be contrary to statute.

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qualified by college training and licensing, provided, that the director of schools shall

notify the board prior to reelection by the board that the teacher, if reelected, will

attain tenure status.13

The director of schools has the duty to “recommend to the board teachers who are eligible

for tenure or notify such teachers of their failure of reelection pursuant to § 49-5-409.” Tenn. Code

Ann. § 49-2-301(b)(1)(J). The local board of education has the duty to “elect, upon the

recommendation of the director of schools, teachers who have attained or are eligible for tenure . .

. and make written contracts with such teachers.” Tenn. Code Ann. § 49-2-203(a)(1).

Before tenure can be conferred, a teacher must meet all the statutory requirements of Tenn.

Code Ann. § 49-5-503, and the director of schools must either recommend the teacher for tenure or

affirmatively inform the board of education of the teacher’s eligibility for tenure when

recommending renewal of employment during the third year of probation. Bowden v. City of

Memphis, 29 S.W.3d 462, (Tenn. 2000); Ray v. Bd. of Educ. of Oak Ridge Schools, 72 S.W.3d 657,

(Tenn. Ct. App. 2001); Fulks v. Watson, 2001 WL 673573, at * 3 (Tenn. Ct. App. June 8, 2001) (no

Tenn. R. App. P. 11 application filed).

By statute, a tenured teacher can be discharged from employment only for specified causes,

set out in Tennessee Code Annotated § 49-5-511(a), and only after written notice and a formal

hearing. See McKenna v. Sumner Co. Bd. of Educ., 574 S.W.2d 527, 529 (Tenn. 1978); Snell v.

Brothers, 527 S.W.2d 114, 116 (Tenn. 1975).

Non-tenured teachers, however, do not enjoy the same protections, since those protections

arise from and are a result of a grant of tenure. See Snell v. Brothers, 527 S.W.2d at 116 (stating that

the teacher tenure law is designed to protect tenured teachers from arbitrary dismissals); Gibson v.

Butler, 484 S.W.2d 356, 359 (Tenn. 1972) (stating that the Teacher Tenure Act “affords protection

to those who acquire tenure but none to those . . . who have not acquired it.”) Thus, while a tenured

teacher is ensured of renewal of his or her one-year contract, absent specific circumstances such as

a reduction in force or termination of employment based on cause, a non-tenured teacher has no such

13

By 2006 amendment, subsection (b) now reads:

Notwithstanding any other provision to the contrary, upon the completion of the

statutory probation period [three years], any teacher eligible for tenure status shall

be either recommended by the director of schools for tenure or non-renewed;

provided, however, that the teacher cannot be continued in employment if

tenure is not granted by the board of education.

Tenn. Code Ann. § 49-5-504(b)(Supp.) (emphasis added). Because of the “notwithstanding” language, the EPNA cannot

be interpreted to allow a board to delegate to an arbitrator a decision on tenure or continued employment in any non-

renewals after the effective date of the amendment.

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protection.14

Under authority interpreting existing statutes governing teacher tenure and teacher contracts,

a non-tenured teacher may be dismissed without cause by written notice that the teacher has not been

re-elected to teach the next school year, as long as the notice complies with the time limits set in

Tenn. Code Ann. § 49-4-409. Snell v. Brothers, 527 S.W.2d at 116; Malone v. Shelby Co. Bd. of

Educ., 773 S.W.2d 256, 259 (Tenn. Ct. App. 1989). Our courts have also held that a non-tenured

teacher whose employment is not renewed, i.e., who is not re-elected to a teaching position during

his or her probation period, has no right to judicial review of the local school administrators’

decision not to renew employment. Malone v. Shelby Co. Bd. of Educ., 773 S.W.2d at 259 (citing

Gibson v. Butler, 484 S.W.2d at 359 and Shannon v. Bd. of Educ., 286 S.W.2d 571 (Tenn. 1956)).

Consequently, under existing law Mr. Wade would have no recourse in the courts for the

decision to not renew his employment as a teacher. The local school system would be afforded wide

discretion in making a decision to non-renew and could make such a decision for any reason not

otherwise prohibited by law.15 Under his individual one year employment contract, a decision not

to renew that contract was not reviewable. As we indicated in our earlier opinion in this case, one

implication of sending to binding arbitration the nonrenewal of Mr. Wade’s employment was the

potential extension of the term of his employment contract beyond the term expressly provided in

the individual contract. Cannon Co. Bd. of Educ. v. Wade, 178 S.W.3d at 731.

VII. DELEGATION TO AN ARBITRATOR THE RENEWAL OF A

PROBATIONARY TEACHER ’S CONTRACT

Under the trial court’s ruling the decision not to renew Mr. Wade’s employment is subject

to review by an arbitrator as a dispute over the interpretation of, application of, or compliance with

certain provisions of the locally negotiated agreement. The provisions that are the basis of Mr.

Wade’s grievance are not provisions specifically dealing with non-renewal of untenured teachers.

The parties did not include in the agreement any specific limitations on the decision not to renew a

probationary teacher’s contract.16 Instead, the provisions at issue relate to procedures surrounding,

and motivation for, a variety of decisions or conduct by the system administration that are described

14

The non-renewal of an untenured teacher’s contract is not equivalent to a failure to hire or otherwise the same

as a termination or dismissal. Generally applicable rules of contract law distinguish between a failure to renew a contract

and a termination of that contract during its term, and those rules apply to employment contracts.

15

Obviously, any such decision could be challenged on the basis that it violated federal or state statutes

prohibiting discrimination in employment on the basis of age, gender, or race, for example.

16

Had they included a provision specifically limiting the broad discretion given to local school administrators

as to non-renewals, the conflict with statute would be more obvious.

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somewhat generally in those provisions.17 The Association and Mr. Wade assert those provisions

apply to non-renewal decisions, thereby contractually limiting the discretion of local school

administrators.

While the appellees have carefully crafted their description of Mr. Wade’s grievance, the

non-renewal of his employment is at the core of the grievance and triggered its filing. Mr. Wade

stated on his grievance form that the alleged violations of the agreement occurred when he received

the notice that his employment contract would not be renewed. In our first opinion in this case, this

court remanded the case with the directive that the trial court should determine “whether and under

what conditions the School Board would be required to submit its decision not to renew Mr.

Wade’s contract to binding arbitration under the collective bargaining agreement.” Cannon Co.

Bd. of Educ. v. Wade, 178 S.W.3d at 731 (emphasis added).18

17

The sections of the agreement that Mr. W ade alleged were violated stated:

VI. E. “No reprisals shall be taken by the Board or administration against an employee because of his

participation in a grievance.” [The Board argues this does not apply because his contract was not

renewed before his grievance was filed. Mr. W ade asserts that it is an issue for the arbitrator to

decide].

XXIV A.1. “The Board, in recognition of the concept of progressive improvement, shall require

notification to a teacher, in writing on any alleged deficiencies, indicating expected corrections,

and indicating a reasonable period of correction.”

XXIV B.1. “The Board shall have the right to dismiss any employee upon sufficient proof of improper

conduct, inefficient services or neglect of duty, provided that no one shall be dismissed without having

been given a written due notice of charge or charges, and an opportunity for defense.” [This provision

applies to dismissals, not to decisions not to renew probationary employment. See footnote 14, infra.

The claim based on this provision also assumes Mr. W ade’s employment was not renewed for one of

the enumerated reasons, but a non-renewal decision does not require cause. Mr. W ade and the

Association assert these questions should be determined by the arbitrator.]

XXV “The Association and the Board agree that there be no discrimination in the hiring, training,

assignment, promotion, transfer or discipline of teachers or in the application or administration of this

agreement on the basis of race, creed, color, religion, national origin, age, sex, domicile, marital status,

or physical handicap. Employees shall be equally free to become or not become members of the

Association; and there will be no discrimination, intimidation, discipline or coercion by either the

Board or its representatives or members of the Association or its representatives or members, against

any employee because of his or her participation or refusal to participate in Association membership

or activities. Further there shall be no discrimination against any teacher because of his/her

membership in the Association, his/her participation in any activities of the Association or collective

professional negotiations with the Board, or his/her institution of any grievance, complaint or

proceedings under this agreement, or law or otherwise with respect to any terms or conditions of

employment.” [There is some dispute about the applicability of this provision, and Mr. W ade and the

association again assert that those are questions for the arbitrator.]

18

W ording in some of the Association’s filings confirm that the grievance involves “contractual violations that

occur in the context of the non-renewal of a teacher.” The argument is that the context of the alleged violations is not

significant. W e disagree when various provisions of the contract, taken together, are interpreted or applied contrary to

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The arbitration provision in the locally negotiated agreement in this case is not specific as

to the procedures to be used in the actual arbitration. Neither is it specific as to available remedies.

It simply provides that the arbitrator’s decision shall be in writing and that the arbitrator is “without

power or authority to make any decision which requires the commission of an act prohibited by law

or which is violative of the terms of this agreement.” It further states that the arbitrator’s decision

is binding. It contains no limitations on the scope of relief that can be included in the decision.

Submission of Mr. Wade’s grievance to binding arbitration without any limitation on the scope of

remedies available to an arbitrator creates the possibility that an arbitrator could make employment

decisions that are assigned by statute to local school administrators. It also creates the possibility

that the decision not to renew a nontenured teacher’s employment would be subjected to a set of

standards that is different from that employed by courts under existing law. We find no authority

in the EPNA for that result. See Arnwine, 120 S.W.3d at 808.

In Lawrence County Educ. Ass’n, the Court ultimately affirmed the trial court’s enforcement

of an arbitrator’s decision, but that affirmance in no way provides authority for the proposition that

an agreement to arbitrate can be interpreted to delegate to an arbitrator the final decision on certain

personnel matters that are statutorily assigned to local school officials. To the contrary, the Court

made clear that its affirmance was based on the fact that the local board of education had adopted

the arbitrator’s decision and recommendation, stating “[i]n these unique circumstances, however,

the judge upheld the arbitrator’s decision not because of its correctness, but because the BOE had

unanimously approved the recommendations . . .” 244 S.W.3d at 319 (emphasis added).19

Some discussion of the background in Lawrence County will help demonstrate the

significance of the holdings in that case to the one before us. First, the arbitration agreed to in the

master contract at issue in Lawrence County was not binding arbitration. Instead, the arbitrator’s

decision was merely a recommendation to the board of education, thereby retaining to the board the

final decision. As the Court noted, the contract gave the arbitrator “limited remedial authority”

allowing him only to “recommend” the form of relief. Id. at 317 n.13. In the case before us,

however, the agreement calls for “binding arbitration” as the last step in the grievance procedure,

coming after the board has decided the grievance.

Second, as discussed above, in Lawrence County, the board of education adopted the

arbitrator’s findings, interpretations, and recommendations, thereby conferring on the teacher-coach

rights he had not been granted by the agreement. Id. at 319 (holding that the board’s adoption of the

arbitrator’s interpretation gave vitality to the teacher’s contract claim that otherwise did not exist).

In Lawrence County, the Court addressed the relevant statutes “as to their effect on a tenured teacher

whose coaching responsibilities have been specifically addressed by the board,” referring to the

board’s adoption of the arbitrator’s recommendation. Id. at 313 (emphasis added). In the case before

us, the Board denied Mr. Wade’s grievance in Step 4 of the grievance procedure.

statute governing the “context.”

19

The Court found that the board had the statutory authority to adopt the arbitrator’s recommendations. Id.

-16-

Because one of the major issues raised in Lawrence County focused on the board’s authority

to limit or usurp the director’s authority to transfer teachers, the Court’s holdings in that case are

based, in large part, on its determination that the board of education is “the supreme power in the

school system.” Id. at 318. The Court clearly based its decision on the facts that the board had

retained final decision making on grievances and had adopted the arbitrator’s findings and

recommendations. A board reserving the final decision to itself, as it did in the Lawrence County

agreement, is substantively different from an agreement delegating to an arbitrator who is not part

of the local government entity charged with operation of our public schools the final decision on who

is employed as a teacher and who is awarded tenure.

In Lawrence County, the Court found that transfers of tenured professional employees were

permissive subjects of bargaining that a board of education could, but was not required to, negotiate.

244 S.W.3d at 318. Even if non-renewal of probationary teachers were also found to be a permissive

subject of negotiation and agreement, that does not end the analysis. Just because a general topic

may be subject to negotiation does not mean that any term or combination of terms may be enforced

if the result of application of those provisions is inconsistent with statutes. The General Assembly

has limited not just subject matters appropriate to negotiation, Tenn. Code Ann. § 49-5-611, but also

has prohibited any “proposal” that is contrary to state, statutory rights of professional employees, or

statutory rights of a board of education. Tenn. Code Ann. § 49-5-612(a). At issue herein is the

application of various provisions of the agreement.

Again, while a general topic may be suitable for inclusion in a locally negotiated agreement,

no specific term may be applied contrary to statute. For example, while professional employee

working conditions are proper subjects of negotiation and agreement, a term in a locally negotiated

agreement falling within that general subject matter could not be interpreted or applied to eliminate

tenure or the protections afforded by that status because of existing statutes on tenure. Similarly, a

provision of a locally negotiated agreement could not be applied to allow teachers fewer working

hours than are necessary to provide the minimum number of hours of instruction per school year in

contravention of state statutory requirements, even though work hours are working conditions.

In Arnwine, the Court determined there was no statutory authority for a local board to enter

into multi-year contracts with teachers. 120 S.W.3d at 808. No term or provision of a locally

negotiated agreement could be applied to grant that authority to school boards. The point is that a

locally negotiated agreement’s terms cannot be interpreted or applied in a way to achieve a result that

is outside the statutory authority, regardless of whether that term could be classified under one of the

enumerated authorized general subjects for negotiation.

In the case before us, the agreement provides for binding arbitration without limitation on

remedies, and the grievance is based on provisions not directly addressing non-renewals of

probationary employment. These provisions cannot be enforced or applied to delegate to an

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arbitrator the decision of whether a probationary teacher’s one-year contract should be renewed.20

In their appellate brief, the Association and Mr. Wade assert that the arbitration provision is

an agreed contractual modification of the statutory rights of the board of education or director of

schools and that such modifications are not only allowed but are the essential purpose of the EPNA.

We respectfully disagree. While private parties have freedom to agree to almost any legal term,

including a dispute resolution method, local school administration, employment in local schools, and

even the collective bargaining process are governed by state statute. Statutory provisions cannot be

rendered ineffective by contract, and contracts may not be enforced to effectuate a result that is

contrary to statute.

VIII. CONCLUSION

Accordingly, we conclude that the question of the non-renewal of Mr. Wade’s employment

contract cannot be subjected to binding arbitration. Costs of this appeal are taxed to the appellees,

Goldy Wade and the Cannon County Education Association, for which execution may issue if

necessary.

_____________________________________

PATRICIA J. COTTRELL, JUDGE

20

W e do not, and cannot, address the availability of remedies other than renewal of employment and its

concomitant potential for grant of tenure.

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