Tapo v. Columbus Board of Education

Cook, J. The sole issue presented by the instant appeal is whether a teacher seeking back pay from a school board, as a result of the board’s erroneously placing her on its salary schedule, is required to follow the grievance-arbitration procedure of a collective bargaining agreement where the board stipulates that the teacher was qualified for placement in the higher paying category on the salary schedule during the time in question and that the master agreement contains no provision as to the question of retroactivity or statute of limitations relative to correcting an erroneous placement on the salary schedule. In the instant cause, Section 110.01 of the collective bargaining agreement between the board and the Columbus Education Association provided: “During the course of this Agreement, problems may arise concerning the interpretation or application of the policies, rules and procedures of the Board or the provisions of this Agreement. When such problems arise, an attempt should be made to settle them informally by the principal and teacher or teachers involved. A problem which cannot be resolved informally will be processed as a grievance.” The board contends the teachers’ claim for back wages for the years prior to the six-year period for which the board offered to make up salary shortages constitutes a grievance and must be submitted to arbitration by them under the master agreement. However, in the instant cause, the parties, in the court below, stipulated that Tapo, since 1969-1970, and Wilcox, since 1971, have been qualified for placement in the category “B.S. and 150 hours” on the salary schedule. The parties further stipulated that the master agreement contains no provision as to retroactivity or the statute of limitations “[as] to correcting a teacher’s erroneous placement on the Board’s adopted salary schedule.” Thus, there was no grievance “* * * concerning the interpretation or application of the policies, rules, and procedures of the Board or the provisions of this Agreement * * *,” to be submitted to arbitration. Since there was no dispute between the parties as to any of the board’s policies, rules or procedures or the provisions of the master agreement, and the board refused to pay the teachers the salary for which they were qualified, despite its written contracts with them to do so, the teachers properly filed a legal action against the board for breach of contract for said back pay. The claim of the teachers was subject to any applicable legal or equitable defense. In the instant cause, the court found the defenses offered by the board to be without merit. The board has not made the court’s [108] ruling as to said defenses, other than the defense of failure to proceed under the grievance-arbitration provision of the collective bargaining agreement, the basis of alleged error. We conclude that the trial court did not err in deciding Tapo and Wilcox did not have to exhaust the grievance-arbitration procedures set forth in the collective bargaining agreement between the board and the Columbus Education Association as to the collection of the back pay allegedly due them. Accordingly, the judgment of the court of appeals is affirmed. Judgment affirmed. Sweeney, Douglas and H. Brown, JJ., concur. Moyer, C.J., Markus and Wright, JJ., dissent. Cook, J., of the Eleventh Appellate District, sitting for Locher, J. Markus, J., of the Eighth Appellate District, sitting for Holmes, J.