State ex rel. Burch v. Sheffield-Sheffield Lake City School Dist. Bd. of Edn.

[This opinion has been published in Ohio Official Reports at 75 Ohio St.3d 216.]

THE STATE EX REL. BURCH, APPELLANT, v. SHEFFIELD-SHEFFIELD LAKE CITY

SCHOOL DISTRICT BOARD OF EDUCATION, APPELLEE.

[Cite as State ex rel. Burch v. Sheffield-Sheffield Lake City School Dist. Bd. of

Edn., 1996-Ohio-304.]

Mandamus to compel board of education to pay teacher for the period of her

employment as a learning disabled tutor according to either the R.C.

3317.13 minimum salary schedule for teachers or the teachers’ salary

schedule adopted by the board in accordance with R.C. 3317.14—Writ

denied, when.

(No. 95-1096—Submitted February 6, 1996—Decided March 5, 1996.)

APPEAL from the Court of Appeals for Lorain County, No. 94CA5832.

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{¶ 1} Appellee, Sheffield-Sheffield Lake City School District Board of

Education (“board”), employed appellant, Regina Burch, as an individual/small

group instruction teacher for learning disabled (L.D.) students from February 1989

to June 1993. Individual/small group instruction teachers, who provide

supplementary instruction to handicapped children enrolled in regular school

classes pursuant to Ohio Adm. Code Section 3301-51-03(C), are commonly

referred to as “tutors” or “L.D. tutors.” When Burch initially applied for

employment with the board in December 1988, she specifically requested

employment as an L.D. tutor. In February 1989, Burch and the board executed a

“temporary appointment contract” for Burch to serve as an L.D. tutor at a “per

diem/hour rate.” For the 1989-1990, 1990-1991, 1991-1992, and 1992-1993 school

years, the parties executed limited teaching contracts in which Burch agreed to

work as an L.D. tutor at the specified hourly salary rates.

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{¶ 2} In the 1992-1993 school year, Burch’s hours were reduced from

approximately five hours per day to two hours per day, purportedly due to fewer

handicapped students needing tutoring services. Burch refused to accept additional

work instructing home-bound students. After Burch’s performance in the 1992-

1993 school year was evaluated as unsatisfactory, the board gave her written notice

that it would not reemploy her following the expiration of her limited contract for

that school year.

{¶ 3} During the entire period in which the board employed Burch, the

Sheffield-Sheffield Lake Teachers Association (“union”) served as the collective

bargaining representative for the certified teaching staff in the school district. The

collective bargaining agreements between the board and the union recognized the

union as the exclusive representative for all certified teaching staff, including tutors.

The collective bargaining agreements further provided teachers’ salary schedules.

However, the collective bargaining agreements expressly stated at Article

XII(B)(7) that all “[f]ull or part-time tutors shall be compensated at an hourly rate

of eighty eight percent (88%) of the hourly rate of a BA-O teacher on the salary

schedule.”

{¶ 4} In 1994, Burch instituted an action in the Court of Appeals for Lorain

County requesting a writ of mandamus to compel the board to, among other things,

pay her for the period of her employment as an L.D. tutor, according to either the

R.C. 3317.13 minimum salary schedule for teachers or the teachers’ salary

schedules adopted by the board in accordance with R.C. 3317.14 and incorporated

in the pertinent collective bargaining agreements. The court of appeals entered

summary judgment in favor of the board and denied the writ.

{¶ 5} This cause is now before the court upon an appeal as of right.

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Regina Burch, pro se.

Pepple & Waggoner and Glenn D. Waggoner, for appellee.

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January Term, 1996

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Per Curiam.

{¶ 6} Burch asserts that the court of appeals erred in granting summary

judgment in favor of the board and denying the requested writ of mandamus. In

order to be entitled to a writ of mandamus, Burch had to establish (1) a clear legal

right to the requested back pay and related benefits, (2) a corresponding clear legal

duty on the part of the board to grant her request for back pay and associated

benefits, and (3) the lack of an adequate remedy in the ordinary course of the law.

State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn. (1994), 69 Ohio St.3d

217, 218-219, 631 N.E.2d 150, 152. Summary judgment is appropriate when (1)

no genuine issue as to any material fact remains to be litigated; (2) the moving party

is entitled to judgment as a matter of law; and (3) it appears from the evidence that

reasonable minds can come to but one conclusion, and viewing the evidence most

strongly in favor of the nonmoving party, that conclusion is adverse to the

nonmoving party. State ex rel. Rogers v. Cleveland City School Dist. Bd. of Edn.

(1995), 73 Ohio St.3d 197, 199, 652 N.E.2d 756, 758.

{¶ 7} As a preliminary matter, Burch did not comply with S.Ct.Prac.R.

VII(1) when she failed to file her supplement at the same time as her initial appellate

brief. Instead, she filed what essentially constitutes her supplement as an

“appendix” attached to her reply brief. However, the rules do not specify dismissal

or automatic affirmance based upon an appellant’s failure to comply with this

particular provision. Further, the board failed to object to Burch’s noncompliance

with the rule. Thus, given the foregoing as well our general precept that cases

should be decided on their merits, we consider the merits of this appeal. See, e.g.,

State ex rel. Montgomery v. R & D Chem. Co. (1995), 72 Ohio St.3d 202, 204, 648

N.E.2d 821, 823.

{¶ 8} Although Burch asserts ten propositions of law, she principally

contends that (1) under R.C. 3317.13 and 3317.14, she is entitled to be compensated

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at a higher rate than the hourly compensation specified in the collective bargaining

agreements; and (2) she is entitled to full-time pay for the 1992-1993 school year,

since the board violated R.C. 3319.12 by unlawfully reducing her salary.

{¶ 9} As to the first issue, the court of appeals relied on R.C. 4117.10(A),

which provides:

“An agreement between a public employer and an exclusive representative

entered into pursuant to this chapter governs the wages, hours, and terms and

conditions of public employment covered by the agreement. If the agreement

provides for a final and binding arbitration of grievances, public employers,

employees, and employee organizations are subject solely to that grievance

procedure ***. Where no agreement exists or where an agreement makes no

specification about a matter, the public employer and public employees are subject

to all applicable state or local laws or ordinances pertaining to the wages, hours,

and terms and conditions of employment for public employees. Laws pertaining to

*** the minimum educational requirements contained in the Revised Code

pertaining to public education including the requirement of a certificate by the

fiscal officer of a school district pursuant to section 5705.41 of the Revised Code,

and the minimum standards promulgated by the state board of education pursuant

to division (D) of section 3301.07 of the Revised Code prevail over conflicting

provisions of agreements between employee organizations and public employers.

*** [T]his chapter prevails over any and all other conflicting laws *** except as

otherwise specified in this chapter or otherwise specified by the general assembly.

***” (Emphasis added.)

“Except for laws specifically exempted, the provisions of a collective

bargaining agreement entered into pursuant to R.C. Chapter 4117 prevail over

conflicting laws.” State ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 513,

628 N.E.2d 1377, 1381. R.C. 3317.13 provides a minimum salary schedule for

teachers, and R.C. 3317.14 provides that any board of education participating in

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funds distributed under R.C. Chapter 3317, the school foundation program, must

annually adopt a teachers’ salary schedule based on training and years of service.

Here, the board adopted teachers’ salary schedules pursuant to R.C. 3317.14 and

incorporated them into the collective bargaining agreements.

{¶ 10} The pertinent collective bargaining agreements provided, in contrast

to R.C. 3317.13 and 3317.14, that tutors such as Burch would be paid the specified

hourly rate of compensation. Nevertheless, Burch claims that R.C. 4117.10(A)

does not require that the provisions of the agreement relating to tutor compensation

prevail over R.C. 3317.13 and 3317.14 because these latter statutes constitute

“minimum educational requirements” which are exempted from R.C. 4117.10(A).

Yet as the court recently held in State ex rel. Johnson v. Cleveland Hts./Univ. Hts.

School Dist. Bd. of Edn. (1995), 73 Ohio St.3d 189, 192, 652 N.E.2d 750, 752,

teachers’ salary schedules under R.C. 3317.13 and 3317.14 do not constitute

“minimum educational requirements” which are excepted from R.C. 4117.10(A)’s

rule that the collective bargaining agreement prevails over conflicting laws. See,

also, State ex rel. Rollins v. Cleveland Hts.-Univ. Hts. Bd. of Edn. (1988), 40 Ohio

St.3d 123, 532 N.E.2d 1289, paragraph two of the syllabus (R.C. 3319.11, relating

to teacher tenure, is a teacher-protection statute and not a law pertaining to

minimum educational requirements under R.C. 4117.10[A]).

{¶ 11} Burch next contends that R.C. 3317.13 and 3317.14 apply due to

R.C. 4117.10(A)’s provision that R.C. Chapter 4117 “prevails over any and all

other conflicting laws *** except as otherwise specified in this chapter or as

otherwise specified by the general assembly.” However, R.C. 3317.13 and 3317.14

do not specify that R.C. 4117.10(A)’s rule that the collective bargaining agreement

prevails over conflicting laws is inapplicable.

{¶ 12} Further, to the extent that Burch relies on previous decisions of the

court in which we granted writs of mandamus in favor of tutors, such reliance is

misplaced since none of those cases involved tutors’ claims where they were bound

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by a collective bargaining agreement which specified tutors’ compensation

separately from other teachers, with R.C. 4117.10(A) applicable. See State ex rel.

Brown v. Milton-Union Exempted Village Bd. of Edn. (1988), 40 Ohio St.3d 21,

531 N.E.2d 1297 (R.C. 4117.10[A] inapplicable where pertinent language predated

enactment of R.C. 4117.10); State ex rel. Tavenner v. Indian Lake Local School

Dist. Bd. of Edn. (1991), 62 Ohio St.3d 88, 578 N.E.2d 464. In fact, in one of the

cases relied on by Burch, State ex rel. Chavis v. Sycamore City School Dist. Bd. of

Edn. (1994), 71 Ohio St.3d 26, 641 N.E.2d 188, we noted that “‘[g]enerally, an

hourly rate [for tutors] which is agreed upon in collective bargaining, and

incorporated in the collective bargaining agreement, may be less than the rate of

compensation provided by the salary schedule.’” Id., 71 Ohio St.3d at 32, 641

N.E.2d at 194, quoting 1 Baker, Ohio School Law (1993) 334, Section 7.44.1.

{¶ 13} “By providing that the [collective bargaining agreement] governs

conditions of employment, the General Assembly has indicated its preference for

enforcing those terms of an agreement which were arrived at through open

negotiation at the bargaining table, regardless of which party is advantaged.”

Rollins, supra, 40 Ohio St.3d at 127, 532 N.E.2d at 1293-1294. As a member of

the collective bargaining unit, Burch was bound by the tutor compensation

provisions of the collective bargaining agreements. Burch is not entitled to a higher

rate than the hourly compensation specified in the agreements.

{¶ 14} Burch further asserts that she is entitled to full-time pay for the 1992-

1993 school year because the board violated R.C. 3319.12 by unlawfully reducing

her salary. R.C. 3319.12 provides:

“Each board of education shall cause notice to be given annually not later

than the first day of July to each teacher who holds a contract valid for the

succeeding school year, as to the salary to be paid such teacher during such year.

Such salary shall not be lower than the salary paid during the preceding school year

unless such reduction is a part of a uniform plan affecting the entire district. ***”

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January Term, 1996

{¶ 15} Contrary to Burch’s assertion, her “salary,” which was merely an

hourly rate with no promise of a specific number of hours, was not reduced from

the 1991-1992 school year to the 1992-1993 school year. Instead, it actually

increased from $11.66 per hour to $13 per hour. There was no violation of R.C.

3319.12. In addition, to the extent that Burch claims that “reduction in force

measures” in the collective bargaining agreement “should have been followed” if

there was “a legitimate declin[ing need] for her services,” she possessed an

adequate remedy through the agreement’s grievance and arbitration procedure. See

Johnson, supra, 73 Ohio St.3d at 192-193, 652 N.E.2d at 752-753.

{¶ 16} The foregoing discussion moots Burch’s remaining claims on

appeal, e.g., entitlement to prejudgment interest and retirement benefits based upon

any unpaid back pay to which she is entitled. Finally, her propositions concerning

her alleged obligation to accept the home-bound assignment for the 1992-1993

school year and the board’s alleged duty to maintain her employment records are

irrelevant to her requested relief on appeal, i.e. payment of back pay in accordance

with R.C. 3317.13, 3317.14, and 3319.12.

{¶ 17} The court of appeals did not err in entering summary judgment in

favor of the board and denying the requested extraordinary relief. Accordingly, the

judgment of the court of appeals is affirmed.

Judgment affirmed.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER and COOK, JJ.,

concur.

WRIGHT, J., not participating.

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