GENERAL DRIVERS, WAREHOUSEMEN & HELPERS, LOCAL 89 v. MARTIN COUNTY BOARD OF EDUCATION
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RENDERED: JULY 28, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-002981-MR
GENERAL DRIVERS, WAREHOUSEMEN &
HELPERS, LOCAL 89
APPELLANT
APPEAL FROM MARTIN CIRCUIT COURT
HONORABLE JAMES A. KNIGHT, JUDGE
ACTION NO. 96-CI-00222
v.
MARTIN COUNTY BOARD OF EDUCATION
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
BARBER, HUDDLESTON AND JOHNSON, JUDGES.
JOHNSON, JUDGE: General Drivers, Warehousemen & Helpers, Local
89, has appealed from a judgment of the Martin Circuit Court
entered on November 20, 1998, which dismissed its complaint.
Local 89 had sought to compel the Martin County Board of
Education to participate in the arbitration of a claim relating
to the discharge of a classified employee.1
1
Having concluded
Court of Appeals Case No. 1999-CA-000570-MR was heard with
(continued...)
that the trial court erred in refusing to compel the arbitration,
we reverse and remand for further proceedings.
This case arose following the termination of the
employment of school bus driver, Nancy Newsome, by William Slone,
the superintendent of schools for the Martin County School
District.
Newsome, who was designated as a classified employee
under Kentucky Revised Statutes 161.011(1)2, filed a timely
grievance with the Martin County Board of Education.
Newsome’s
union, Local 89, subsequently requested arbitration of her
grievance pursuant to Provision 21 of the collective bargaining
agreement between the Board and Local 89.
The agreement required that the Board approve the
termination of an employee, and further provided that a
discharged employee had the right to have her discharge reviewed
through a grievance and arbitration procedure.
In refusing to
arbitrate Newsome’s claim, the Board contended that since the
Kentucky Education Reform Act (KERA) empowered only the
superintendent to dismiss classified personnel, this power could
not be delegated to an arbitrator.
Local 89 filed a lawsuit
1
(...continued)
this appeal. That case originated as Civil Action No. 98-CI00217 and involved drivers Homer Mills, Robert Delong, Kimberly
Charles and Joe Fletcher. It was filed in Division I of the
Martin Circuit Court with the Hon. Stephen N. Frazier presiding.
A summary judgment in favor of the Board was entered on March 5,
1999.
2
KRS 161.011(1) defines a classified employee as “an
employee of a local district who is not required to have
certification for his position. . .,” as is, for example, a
teacher or principal.
-2-
against the Board seeking to compel it to arbitrate the
grievance.
After a bench trial, the trial court determined that
it was improper for the Board to contract to deprive the school
superintendent of a statutory duty and refused to order
arbitration.
This appeal followed.
When the parties entered into the collective bargaining
agreement on November 6, 1995, KRS 161.011 expressly allowed the
Board to enter into written contracts regarding classified
employees:
(5) Local school districts shall enter into
written contracts with classified employees.
(6) Local school boards shall develop and
provide to all classified employees written
policies which shall include, but not limited
to:
(a) Terms and conditions of employment;
(b) Identification and documentation of
fringe benefits, employee rights,
and procedures for the reduction or
laying off of employees; and
(c) Discipline guidelines and
procedures that satisfy due process
requirements.
Provision 21 of the parties’ collective bargaining agreement
provided the Board with “the right to discharge or discipline an
employee for just cause in relation to major offenses subject to
the grievance and arbitration procedure. . .” provided in the
agreement.
In this appeal we must determine, in light of certain
KERA provisions, whether this contract provision pertaining to
the arbitration of the dismissal of a classified employee is
legally binding upon the Board and the superintendent.
-3-
We believe it is important to point out initially that
this case does not involve a dispute between the Board and the
superintendent regarding each party’s power to dismiss a
classified employee.
The collective bargaining agreement was
signed by both Superintendent Slone and the chairman of the
Board.
Thus, we believe the trial court’s statement that the
Board “may not contract to strip a statutorily mandated duty from
a School Superintendent” is misplaced.
The discharged employee
was not contending that the Board, rather than the
superintendent, was required to discharge her.
Instead, she was
contending that under the collective bargaining agreement the
question of whether the superintendent’s discharge of her was
appropriate was subject, as provided in the agreement, to “final
and binding” arbitration “on both parties and any and all
individual employees involved.”
Local 89 is correct that “collective bargaining
agreements to arbitrate disputes are routinely enforced.”
the contract as written is ambiguous, “it will be strictly
enforced according to its terms.”3
Our former Court of Appeals has stated:
Federal substantive law has established a
policy of judicial deference to arbitration
and judicial restraint, prior to arbitration,
from intervention into the interpretation of
the provisions of collective bargaining
agreements which provide for arbitration.
3
Grey v. Wilson, Ky.App., 554 S.W.2d 869 (1977).
-4-
Unless
In United Steel Workers of America v.
Warrior Gulf Navigation Company, [363 U.S.
574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960)],
it was held that an order to arbitrate a
particular grievance should not be denied
unless it could be said with positive
assurance that the asserted dispute was not
subject to the arbitration clause of the
agreement, with doubts resolved in favor of
coverage.4
As stated in United Steel Workers v. American Manufacturing,
supra, “the agreement [of the parties was] to submit all
grievances to arbitration. . . .”5
In the case sub judice, the agreement between the Board
and Local 89 clearly stated that the discharge of an employee is
subject to the grievance and arbitration procedures provided for
in the contract.
The agreement is unambiguous; and since the
intentions of the parties are clear, we must uphold the contract.
Again, the issue was not whether the Board or the superintendent
could discharge a school bus driver.
Everyone was in agreement
that the authority to discharge rested with the superintendent.
Rather, the issue was whether the employment action by the
superintendent was subject to review by arbitration.
It was the Legislature in the first instance that
empowered these entities to enter into contracts concerning
4
United Brick & Clay Workers of America, Local 486 v. Lee
Clay Products Co., Inc., Ky., 488 S.W.2d 331 (1972)(citing United
Steel Workers of America v. American Manufacturing Co., 363 U.S.
564, 80 S.Ct. 1343, 4 L.E.2d 1403 (1960)); United Steel Workers
of America v. Warrior and Gulf Navigation Co., supra; and United
Steel Workers of America v. Enterprise Wheel & Car Corp., 363
U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960)).
5
American Manufacturing, 363 U.S. at 568.
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personnel and the management of business affairs.6
KRS 160.3707
and 160.3908 are clear that the superintendent “shall be
responsible for all personnel actions, including hiring,
assignments, transfer, dismissal, suspension, restatement,
promotion, and demotion. . .”9 and these statutes do not limit
the superintendent’s or the Board’s ability to resolve these
employment issues, including the use of arbitration in reviewing
the dismissal of an employee.
We believe the statutes clearly
empower the superintendent to resolve disputes related to the
discharge of an employee.
Thus, if the superintendent and the
Board are empowered to resolve a dispute related to personnel by
settling a lawsuit filed by the discharged employee, then those
same powers logically include the power to avoid or resolve
litigation by arbitration.
Alternative dispute resolution is a
growing trend that has been embraced by the Legislature and the
6
See KRS 160.370, 160.390 and 161.011.
7
According to KRS 160.370, “[the superintendent] shall have
general supervision, subject to the control of the board of
education, of the general conduct of the schools, the course of
instruction, the discipline of pupils, and the management of
business affairs. He shall be responsible for the hiring and
dismissal of all personnel in the district” [emphasis added].
8
Pursuant to KRS 160.390, the superintendent is “responsible
for all personnel actions including the hiring, assignments,
transfer, dismissal, suspension, reinstatement, promotion, and
demotion and reporting the actions to the local board” [emphasis
added].
9
See Chapman v. Gorman, Ky., 839 S.W.2d 232, 242 (1992),
where the Supreme Court said that “it is the superintendent,
under the new provisions in KERA, who is responsible for hiring,
transferring, dismissing, assigning, promoting, and demoting
school employees” [emphasis added].
-6-
courts.10
The actions of the parties of adopting binding
arbitration as the mechanism to resolve a dispute related to the
discharge of a classified employee was clearly within the Board’s
and superintendent’s contractual authority.
Accordingly, the judgment of the Martin Circuit Court
is reversed and this matter is remanded for entry of a judgment
in favor of Local 89 that compels arbitration.
BARBER, JUDGE, CONCURS.
HUDDLESTON, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
HUDDLESTON, JUDGE, DISSENTING:
After the
Superintendent of the Martin County School District dismissed
school bus driver Nancy Newman, a classified employee,11 she
filed a grievance with the Martin County Board of Education.
General Drivers, Warehousemen & Helpers, Local 89, subsequently
requested arbitration of the grievance pursuant to Provision 21
of the collective bargaining agreement entered into by the Board
and Local 89.
According to Provision 21, “[t]he Board shall have
the right to discharge or discipline an Employee for just cause
in relation to major offenses subject to the grievance and
arbitration procedure in this Agreement.”
Claiming that the
10
See United Steelworkers v. Enterprise Wheel & Car, supra;
United Paperworkers International Union v. Misco, Inc., 484 U.S.
29, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987); KRS Chapter 417; and
Housing Authority of Louisville v. Service Employees
International Union, Local 557, Ky., 885 S.W.2d 692 (1994).
11
Ky. Rev. Stat. (KRS) 161.011(1) defines a classified
employee as “an employee of a local district who is not required
to have certification for his position . . . ,” as is, for
example, a teacher or principal.
-7-
Kentucky Education Reform Act (KERA) empowers only the
superintendent to dismiss classified personnel, the Board refused
to arbitrate.
Local 89 sued the Board seeking to compel it to
arbitrate the grievances, but the circuit court determined that
the Board could not “contract to strip a statutorily mandated
duty from a School Superintendent” and refused to order
arbitration.
Thereafter, Local 89 appealed to this Court.
Kentucky Revised Statutes (KRS) 160.37012 and 160.39013
provide, in part, that the superintendent is responsible for all
dismissals.14
personnel actions including
According to KRS
161.011 (as amended in 1994):
(5) Local school districts shall enter into
written contracts with classified employees.
(6) Local school boards shall develop and
provide to all classified employees written
policies which shall include, but not be
limited to:
12
According to KRS 160.370, “[the superintendent] shall
have general supervision, subject to the control of the board of
education, of the general conduct of the schools, the course of
instruction, the discipline of pupils, and the management of
business affairs. He shall be responsible for the hiring and
dismissal of all personnel in the district.” (Emphasis
supplied.)
13
Pursuant to KRS 160.390, the superintendent is
“responsible for all personnel actions including hiring,
assignments, transfer, dismissal, suspension, reinstatement,
promotion, and demotion and reporting the actions to the local
board.” (Emphasis supplied.)
14
See Chapman v. Gorman, Ky., 839 S.W.2d 232, 242 (1992),
where the Supreme Court said that “it is the superintendent,
under the new provisions in KERA, who is responsible for hiring,
transferring, dismissing, assigning, promoting, and demoting
school employees.” (Emphasis supplied.)
-8-
(a) Terms and conditions of employment;
(b) Identification and documentation of
fringe benefits, employee rights, and
procedures for the reduction or laying off of
employees; and
(c) Discipline guidelines and procedures that
satisfy due process requirements.
Local 89 argues that because KRS 161.011(6) requires
local school boards to create written policies with respect to
disciplinary matters, employee rights, terms and conditions of
employment and due process, the grievance and arbitration
procedures spelled out in Provision 21 are valid.
Both parties
to this appeal agree the superintendent had dismissal authority.
Local 89, however, asserts that the superintendent’s action is
subject to the grievance procedure, including arbitration, as a
result of the enactment of KRS 161.011(6).15
An arbitrator may not review a superintendent’s
dismissal decision if the General Assembly intended to confer
this authority solely upon the superintendent.
Accordingly, it
must be determined whether KERA allows for arbitration of a
superintendent’s decision to dismiss a classified employee.16
15
KRS 161.011 was amended in 1998.
16
See Shultz v. Ohio County, 226 Ky. 633, 11 S.W.2d 702,
704 (1928), in which Kentucky’s highest court said that “[t]he
intention of the Legislature in enacting a law must be the
controlling factor in its construction and interpretation . . .
and where there is doubt as to the meaning of such laws the
courts may look to ‘the historical setting surrounding its
enactment; the public policy of the state; the condition of its
laws; the habits and manners of its people; and all other prior
and contemporaneous facts and circumstances that throw
(continued...)
-9-
In Rose v. Council for Better Education, Inc.,17 the
Supreme Court determined that Kentucky’s common schools as then
constituted and financed were constitutionally deficient.
response, the General Assembly enacted KERA.18
In
The Supreme Court
has observed that “[t]he essential strategic point of KERA is the
decentralization of decision making authority
involve
so
as
to
all participants in the school system . . . .”19
As part of this decentralization, “[KERA] removed many
personnel decisions from the control of the local school
boards.”20
One such decision involves the dismissal of
personnel.21
KERA gave superintendents this authority in
addition to the authority to make other personnel decisions.22
KERA, however, provides for the reevaluation of certain
16
(...continued)
intelligent light on the intention of the lawmaking body.’”
(Quoting Sewell v. Bennett, 187 Ky. 626, 220 S.W. 517, 522
(1920)) (other citations omitted).
17
Ky., 790 S.W.2d 186, 214 (1989).
18
Chapman, supra, n.4, at 235.
19
Board of Educ. of Boone County v. Bushee, Ky., 889
S.W.2d 809, 812 (1994).
20
Chapman, supra, n.4, at 235.
21
Id.
22
Id. See also KRS 160.370 and 160.390; Estreicher v.
Board of Educ. of Kenton County, Ky., 950 S.W.2d 839, 840 (1997)
(noting that “KRS 160.390 . . . grants school superintendents
broad power over personnel decisions . . .”).
-10-
personnel actions.
KRS 161.790,23 for example, allows tribunal
review of a teacher’s termination by the superintendent.24
And
KRS 161.76525 permits boards of education to hear an
23
Prior to the 1996 and 1998 amendments, KRS 161.790
provided, in part, that:
(3) No contract [of a teacher] shall be terminated
except upon notification of the board by the
superintendent. Prior to notification of the board,
the superintendent shall furnish the teacher with a
written statement specifying in detail the charge
against the teacher. The teacher may within ten (10)
days after receiving the charge notify the chief state
school officer and the superintendent of his intention
to answer the charge, and upon failure of the teacher
to give notice within ten (10) days, the dismissal
shall be final.
(4) Upon receiving the teacher's notice of his
intention to answer the charge, the chief state school
officer shall appoint a three (3) member tribunal,
consisting of one (1) teacher, one (1) administrator,
and one (1) lay person, none of whom reside in the
district, to conduct an impartial hearing within the
district.
The 1996 and 1998 amendments to KRS 161.790 changed section (4)
to read “to conduct an administrative hearing in accordance with
KRS Chapter 13B within the district.”
24
See Reis v. Campbell County Bd. of Educ., Ky., 938
S.W.2d 880, 883 (1996), where the Supreme Court, citing KRS
161.790(4)-(6), observed that “the superintendent is now given
authority to initiate termination of a teacher’s contract . . .
.” [] “The remaining powers of hearing the teacher’s answer to
the charge and terminating the teacher’s contract by a majority
vote, for so long within the sole province of the board of
education, now resides in the three-member tribunal appointed by
the chief state school officer.”
25
Pursuant to KRS 161.765:
(1) A superintendent may demote an administrator who
has not completed three (3) years of administrative
service, not including leave granted under KRS 161.770,
by complying with the requirements of KRS 161.760.
(continued...)
-11-
administrator’s demotion contest.26
KERA is, however, silent
regarding review of a classified employee’s dismissal.
As evidenced by KERA’s decentralization goal and KRS
161.790 and 161.765, a superintendent’s authority in personnel
matters is not plenary.
25
Nevertheless, as the General Assembly
(...continued)
(2) An administrator who has completed three years of
administrative service, not including leave granted
under KRS 161.770, cannot be demoted unless the
following procedures have been complied with:
(a) The superintendent shall give written notice of the
demotion to the board of education and to the
administrator. If the administrator wishes to contest
the demotion, he shall, within ten (10) days of receipt
of the notice, file a written statement of his intent
to contest with the superintendent. If the
administrator does not make timely filing of his
statement of intent to contest, the action shall be
final.
* * *
(c) Upon receipt of the statement of grounds for
demotion the administrator shall, within ten (10) days,
file a written answer. Failure to file such answer,
within the stated period, will relieve the board of any
further obligation to hold a hearing and the action
shall be final. The board shall issue subpoenas as are
requested.
(d) The hearing on the demotion shall be public or
private, at the discretion of the administrator and
shall be limited to the matters set forth in the
written statement of grounds for demotion. The board
shall provide to the administrator a verbatim
transcript of the hearing. The board of education
shall hear the case, with the board chairman presiding.
The board, upon hearing the evidence and argument
presented, shall retire to private chambers to arrive
at a decision.
26
See Estreicher, supra, n. 12, at 840, in which the
Supreme Court observed that “KRS 161.765 . . . provides
heightened procedural protections for school administrators.”
-12-
has decided to give superintendents authority over classified
employee dismissal decisions and has not provided a mechanism for
review, there is no reason to believe that it intended to allow
arbitration of that decision.
Contrary to Local 89's argument, KRS 161.011's
requirement that local school boards create written policies with
respect to certain personnel matters is not inconsistent with KRS
160.370's and 160.390's granting of dismissal authority to
superintendents.
Pursuant to KRS 161.011, a local board must
develop and provide classified employees with written policies
regarding the terms and conditions of employment, employee rights
and discipline guidelines and procedures.
Once promulgated, the
superintendent, as executive agent of the board, carries “the
regulations and policies of the district board of education . . .
into effect.”27
The Board’s dismissal and arbitration policies,
however, cannot usurp the statutorily created powers of the
superintendent.
I would, therefore, affirm the judgment.
27
KRS 160.370.
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BRIEFS FOR APPELLANT
BRIEFS AND ORAL ARGUMENT FOR
APPELLEE:
Alton D. Priddy
Jonathan C. Hardy
Louisville, KY
John R. Triplett
Inez, KY
Brian Cumbo
Inez, KY
ORAL ARGUMENT FOR APPELLANT:
Jonathan C. Hardy
Louisville, KY
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