                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                    May 15, 2002 Session


               THE POLK COUNTY BOARD OF EDUCATION v.
              THE POLK COUNTY EDUCATION ASSOCIATION

                      Appeal from the Chancery Court for Polk County
                          No. 6885    Jerri S. Bryant, Chancellor

                                     FILED JUNE 21, 2002

                                 No. E2001-02390-COA-R3-CV



A declaratory judgment action was filed by the Polk County Board of Education (“The Board”)
seeking a declaration that it did not have to arbitrate two grievances filed by the Polk County
Education Association (“Association”) after the Board unilaterally implemented two new policies.
The policies at issue involve increasing the workday of the teachers by 30 minutes by requiring
teachers to perform “bus duty”, and implementation of a dress code. The Trial Court held that
lengthening the workday was a matter suitable for arbitration, but concluded the dress code was not.
We affirm the Trial Court’s conclusion as it pertains to lengthening the workday, but vacate and
remand for further proceedings its decision on the arbitrability of the dress code.


              Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery
               Court Affirmed in Part and Vacated in Part; Case Remanded.


D. MICHAEL SWINEY , J., delivered the opinion of the court, in which HOUSTON M. GODDARD, P.J.,
and CHARLES D. SUSANO, JR., J., joined.


Richard L. Colbert, Nashville, Tennessee, for the Appellant the Polk County Education Association.


D. Scott Bennett, Chattanooga, Tennessee, for the Appellee the Polk County Board of Education.
                                              OPINION

                                             Background


                Pursuant to the Education Professional Negotiations Act, the Board and the
Association entered into collective bargaining in June of 2000, which resulted in a Memorandum
of Agreement (“Agreement”). In this declaratory judgment action filed in March of 2001, the Board
petitioned the Trial Court for relief pertaining to two issues. The first issue centers around the length
of the school day for teachers. According to the Complaint, the Director of Schools instructed
school principals to require teachers to work “bus duty”. The Board claims the reason for this
change was students were arriving at school early and staying late without adequate supervision.
The teachers had to arrive at school 15 minutes earlier and leave 15 minutes later to perform this
bus duty, thereby expanding their workday by 30 minutes. State law requires teachers to work a
minimum of seven hours per day. According to the Board, after deducting the teachers’ 30 minute
lunch period because this was not “working time”, the 30 minute expansion of the workday brought
the teachers up to the statutorily required seven hour workday. The Association filed a grievance
and eventually sought arbitration over the lengthening of the workday. The Board sought
declaratory relief claiming this issue was not suitable for arbitration for two reasons. First, the
lengthening of the school day was consistent with the terms of the Agreement; and second,
increasing the workday to seven hours was statutorily required.

                The second issue involves the implementation of a dress code for the teachers. The
Board claims the Director of Schools sought input from a group of teachers concerning
implementation of a dress code, and developed a policy based on this input. The Board claims soon
thereafter, the Association filed a grievance claiming the dress code was a mandatory subject of
bargaining and was not authorized by the existing Agreement. The Association ultimately sought
arbitration over this issue as well. The Board sought a declaration that implementation of a dress
code was a permissive subject of bargaining, not in violation of the terms of the Agreement and,
therefore, not subject to arbitration.

                In its answer, the Association admitted there was a dispute regarding the arbitrability
of these two issues, but steadfastly maintained both issues were subject to arbitration. The
Association argued that pursuant to the terms of the Agreement and applicable law, the Board could
not unilaterally increase the length of the working day or implement a dress code.

                As relevant to this appeal, the Agreement contains the following provisions:

                Article VIII: Grievance Procedures

                A.      Definitions



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                       1.      A grievance is defined as an allegation that there has
                               been a violation, misinterpretation, or misapplication
                               of a state law or of a provision of this agreement.

                                              ****

                       4.      An Association Grievance shall be a grievance by
                               the Association concerning its rights specifically
                               granted by this agreement or a class grievance
                               involving two or more members of the negotiation
                               unit.

                       5.      There shall be no appeal from the arbitrator’s decision
                               which shall be final and binding on all parties to this
                               agreement.

                 The grievance procedure sets forth 5 steps to be followed when a grievance has been
filed. The fifth step allows the grievance to be submitted to arbitration if it has not been resolved
after utilization of the previous four steps. Other relevant provisions of the Agreement are:

               C.      Unencumbered Time

                       1.      Teachers shall have unencumbered time every day for
                               lunch. The administration shall arrange a schedule for
                               all teachers who wish to share or divide duties so that
                               children are supervised at all times. There shall be a
                               minimum of 30 minutes of lunch each school day.
                               These provisions will no longer be in effect and will
                               be re-negotiated within 10 days if state law pertaining
                               to duty-free lunch is changed.

                       3.      Each principal shall inform the teachers of his/her
                               policy concerning other allowable breaks including
                               planning time activities. No employees shall leave
                               his/her working campus without the permission of the
                               supervising principal [except during duty-free lunch]
                               and must sign in and out. . . .

               I.      Limitations

                                               ****



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                      2.      The principal of a school shall systematically, equally
                              and fairly assign bus duty and other duties necessary
                              for the operation of the program during the regular
                              school day. . . .

               L.     Basic Employment Conditions

                                              ****

                      2.      Teachers shall work a maximum of seven [7] hours
                              per teaching day.

               The Board filed a motion for summary judgment and the Association filed a motion
to dismiss for failure to state a claim. As pertinent to this appeal, the Trial Court concluded the
length of the school day was an appropriate mandatory subject for bargaining pursuant to Tenn.
Code Ann. § 49-5-611. The Trial Court further determined that:

               Anything above the state minimum requirements on length of school
               days is clearly a condition of employment and therefore subject to
               negotiation by the teacher’s union. The interpretation of the on-duty,
               off-duty time, and the assigned duties of the teachers as relevant to
               interpreting the length of time of the workday is the job of an
               arbitrator in this situation. The Court therefore dismisses the Board
               of Education’s Petition concerning the issue of the length of workday.

                     In contrast to working conditions, dress codes are not subject
               to mandatory negotiation.

                      This Court hereby holds that this is a permissible subject of
               negotiation, not a mandatory condition of employment. Since it was
               not covered by the collective bargaining agreement, the Board of
               Education had the authority to implement the dress code. The Board
               of Education is not required nor obligated to arbitrate this grievance.

                       The dress code does not constitute a condition of employment
               because of its impact on managerial prerogatives. The school board
               has an interest in seeing that its employees are appropriately dressed.

                       Therefore the school board is not required to arbitrate this
               issue and is entitled to judgment on this issue as a matter of law.

             The Board appeals the Trial Court’s conclusion that the issue of whether the workday
was expanded in violation of the Agreement is a proper matter for arbitration. The Association

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appeals the Trial Court’s conclusion that the dress code was a permissive subject of bargaining and
within the managerial prerogative of the Board. We affirm the decision of the Trial Court with
respect to the arbitrability of the increase in the length of the workday, and vacate and remand the
decision pertaining to the dress code.

                                            Discussion

             The standard for review of a motion for summary judgment is set forth in Staples v.
CBL & Associates, Inc., 15 S.W.3d 83 (Tenn. 2000):

                       The standards governing an appellate court’s review of a
               motion for summary judgment are well settled. Since our inquiry
               involves purely a question of law, no presumption of correctness
               attaches to the lower court’s judgment, and our task is confined to
               reviewing the record to determine whether the requirements of Tenn.
               R. Civ. P. 56 have been met. See Hunter v. Brown, 955 S.W.2d 49,
               50-51 (Tenn. 1997); Cowden v. Sovran Bank/Central South, 816
               S.W.2d 741, 744 (Tenn. 1991). Tennessee Rule of Civil Procedure
               56.04 provides that summary judgment is appropriate where: (1) there
               is no genuine issue with regard to the material facts relevant to the
               claim or defense contained in the motion, see Byrd v. Hall, 847
               S.W.2d 208, 210 (Tenn. 1993); and (2) the moving party is entitled
               to a judgment as a matter of law on the undisputed facts. See
               Anderson v. Standard Register Co., 857 S.W.2d 555, 559 (Tenn.
               1993). The moving party has the burden of proving that its motion
               satisfies these requirements. See Downen v. Allstate Ins. Co., 811
               S.W.2d 523, 524 (Tenn. 1991). When the party seeking summary
               judgment makes a properly supported motion, the burden shifts to the
               nonmoving party to set forth specific facts establishing the existence
               of disputed, material facts which must be resolved by the trier of fact.
               See Byrd v. Hall, 847 S.W.2d at 215.

                       To properly support its motion, the moving party must either
               affirmatively negate an essential element of the non-moving party’s
               claim or conclusively establish an affirmative defense. See McCarley
               v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998);
               Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn. 1997). If the moving
               party fails to negate a claimed basis for the suit, the non-moving
               party’s burden to produce evidence establishing the existence of a
               genuine issue for trial is not triggered and the motion for summary
               judgment must fail. See McCarley v. West Quality Food Serv., 960
               S.W.2d at 588; Robinson v. Omer, 952 S.W.2d at 426. If the moving
               party successfully negates a claimed basis for the action, the non-

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               moving party may not simply rest upon the pleadings, but must offer
               proof to establish the existence of the essential elements of the claim.

                       The standards governing the assessment of evidence in the
               summary judgment context are also well established. Courts must
               view the evidence in the light most favorable to the nonmoving party
               and must also draw all reasonable inferences in the nonmoving
               party’s favor. See Robinson v. Omer, 952 S.W.2d at 426; Byrd v.
               Hall, 847 S.W.2d at 210-11. Courts should grant a summary
               judgment only when both the facts and the inferences to be drawn
               from the facts permit a reasonable person to reach only one
               conclusion. See McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.
               1995); Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).

Staples, 15 S.W.3d at 88-89. A fact is “material” for summary judgment purposes, if it “must be
decided in order to resolve the substantive claim or defense at which the motion is directed.” Luther
v. Compton, 5 S.W.3d 635, 639 (Tenn. 1999)(quoting Byrd v. Hall, 847 S.W.2d at 211).

                We first address the issue pertaining to the length of the school day. The Board
argues the length of the school day is a non-delegable duty and is not subject to arbitration or
negotiation. The Board relies on several statutory provisions, the first being Tenn. Code Ann.§ 49-5-
201(a)(1) which provides that it is the duty of the teacher to: “Open and close the school each day
at the time fixed by the board of education.” The Board apparently asserts this statute gives it the
absolute right to set the working hours of the teachers. The Board also relies on Tenn. Code Ann.
§ 49-5-612 (a) which provides as follows:

               (a) The scope of a memorandum of agreement shall extend to all
               matters negotiated between the board of education and the
               professional employees' organization; provided, 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.

The Board argues the 30 minute increase in the working day brought the teachers up to the statutorily
required seven hour workday. The Board maintains that allowing a challenge to this increase via
a claimed violation of the terms of the Agreement would result in the Agreement being used to
violate state law, which is prohibited by Tenn. Code Ann. § 49-5-612(a)(1). The third statutory
provision the Board relies upon is Tenn. Code Ann. § 49-5-604(a), which provides the Education


                                                 -6-
Professional Negotiations Act does not modify or repeal “[t]hose rights and responsibilities of boards
of education, superintendents and professional employees as contained in this title ….”

              Lastly, the Board argues the 30 minute lunch period is “duty free” and not time
actually worked, and, therefore, cannot be counted towards the statutorily required seven hour
workday. The Board relies on Tenn. Comp. R. & Regs. 0520-1-3-.03(5), which provides:

               (5) Duty Free Luch Period. In schools providing a lunch period for
               students, all teachers shall be provided each day with a lunch period
               during which they shall not have assigned duties. The lunch period
               for each teacher shall be at least the same amount of time as that
               allowed for students.

                In support of its motion for summary judgment, the Board filed the affidavit of
William C. Wade (“Wade”), the Director of Schools for the Polk County Board of Education. In this
affidavit, Wade asserted that during this “duty free” lunch period, the schools “assign no duties to
their teachers whatsoever. Teachers are even free to leave campus, go home, run personal errands,
etc.” Mark Allen (“Allen”), the Chairman of the Polk County Board of Education also submitted
an affidavit wherein he stated the teachers were “off duty for one-half hour during their ‘duty free
lunch.’ During this duty-free lunch, teachers are free to come and go from school, run personal
errands, etc. The Board of Education may not assign duties to teachers during this duty-free lunch.”

                In response to the Board’s motion, the Association filed the affidavit of Barbara
McReynolds (“McReynolds”), a teacher in the Polk County School System and immediate past
president of the Polk County Education Association. In this affidavit, McReynolds admits that while
no specific duties are assigned:

               Most teachers work during their thirty minute lunch period doing
               such things as grading papers, giving make-up tests, dealing with
               disturbances in the hallways, exchanging ideas and information with
               other teachers, monitoring students, counseling students with
               problems, planning classroom and other student activities, obtaining
               supplies needed for classes, organizing their classrooms, and
               preparing forms and paperwork which must be submitted to the
               school office or the central office. Thus, even though teachers do not
               have specific duties assigned by the Board during their state-
               mandated “duty-free” lunch, most are performing work-related
               functions and duties during that time.

                While the Association does not dispute that state law requires teachers to work at least
seven hours, it argues since the teachers are performing work related functions during their “duty-
free” lunch, the 30 minute lunch period must be counted towards the seven hour minimum
requirement. This being the case, the Association maintains the state minimum requirement of a

                                                  -7-
seven hour workday is and has been met, and, therefore, the lengthening of the school day by an
additional 30 minutes was an illegal unilateral change in working conditions and a violation of the
terms of the Agreement.

                 In our opinion, the issue of whether the workday was improperly lengthened turns
on whether the teachers are in reality required to use their 30 minute lunch break in a manner which
benefits the Board or school system, or whether they are in fact free to use their 30 minute lunch
period as they see fit. If the Board is correct and teachers are free to use this 30 minute lunch period
in any manner they want, and if they voluntarily choose to perform work related functions during
their lunch period, then the 30 minute lunch period should not count as time worked toward the
seven hour minimum state requirement. On the other hand, if teacher work load and lack of other
available free time during the normal workday is such that the teachers have no viable alternative
but to utilize their 30 minute “duty-free” lunch period to perform work related functions, then it is
entirely appropriate to count this time as time worked toward fulfilling the seven hour minimum
requirement.

                The issue we must decide on appeal is whether the above determination should be
made by a court of law or an arbitrator. The Board maintains an arbitrator would have to construe
various state laws which makes arbitration an improper forum. The Board relies upon the decision
of the United States Supreme Court in Wright v. Universal Maritime Service Corp., 525 U.S. 70, 119
S. Ct. 391 (1998)(as amended October 21, 1999). In Wright, the following is found:

                In collective bargaining agreements, we have said, “there is a
                presumption of arbitrability in the sense that ‘an order to arbitrate the
                particular grievance should not be denied unless it may be said with
                positive assurance that the arbitration clause is not susceptible of an
                interpretation that covers the asserted dispute.’” … That presumption,
                however, does not extend beyond the reach of the principal rationale
                that justifies it, which is that arbitrators are in a better position than
                courts to interpret the terms of a CBA.… This rationale finds support
                in the very text of the LMRA, which announces that “final adjustment
                by a method agreed upon by the parties is declared to be the desirable
                method for settlement of grievance disputes arising over the
                application or interpretation of an existing collective bargaining
                agreement.” … The dispute in the present case, however, ultimately
                concerns not the application or interpretation of any CBA, but the
                meaning of a federal statute. The cause of action Wright asserts
                arises not out of contract, but out of the ADA .…

Id. at 77-79, 119 S. Ct. at 395-96 (emphasis in original)(citations omitted). The Association asserts
that the propriety of lengthening the school day involves a factual interpretation of the Agreement
and, therefore, is proper for arbitration.


                                                   -8-
                There is no conflict between state law requiring teachers to work a minimum of seven
hours per day and the provision in the Agreement requiring teachers to work a maximum of seven
hours per teaching day. Read together, the teachers’ workday under the applicable statute and the
Agreement is exactly seven hours. We agree with the Board that it cannot negotiate for a workday
of less than seven hours. The Board, however, is perfectly free to enter into negotiations, as it did,
with the Association pertaining to whether the workday will be more than seven hours. The Board
and the Association did exactly that and negotiated a workday of seven hours as reflected in the
Agreement.

                We believe the underlying issue of whether the lunch period should be counted as
time worked is a factual issue. This determination cannot be made without looking to the terms of
the Agreement. For example, the Agreement states teachers shall work a “maximum of seven
hours.” What the parties intended by this language and whether this provision has been violated is
certainly something that must be discerned. This determination (and perhaps others) will involve
an interpretation of the Agreement and is purely factual. We believe the Trial Court properly
concluded interpretation of the “assigned duties of the teachers as relevant to interpreting the length
of time of the workday is the job of an arbitrator in this situation.” We likewise affirm the decision
of the Trial Court that anything above the seven hour minimum requirement on length of workday
is a working condition pursuant to Tenn. Code Ann. § 49-6-611.

                The second issue centers around implementation of the dress code for teachers. The
Trial Court concluded a dress code was a permissive subject of bargaining and since it was not
covered by the Agreement, the Board had the authority to unilaterally implement the policy. The
Trial Court further concluded a dress code was not a condition of employment because of its impact
on managerial prerogatives. Tenn. Code Ann. § 49-5-611(a), which sets forth the mandatory
subjects of bargaining, reads as follows:

                       49-5-611. Scope of negotiations. – (a) The board of
               education and the recognized professional employees' organization
               shall negotiate in good faith the following conditions of employment:

                       (1) Salaries or wages;

                       (2) Grievance procedures;

                       (3) Insurance;

                     (4) Fringe benefits, but not to include pensions or retirement
               programs of the Tennessee consolidated retirement system;

                       (5) Working conditions;

                       (6) Leave;

                                                 -9-
                       (7) Student discipline procedures; and

                       (8) Payroll deductions.

                 When the Trial Court rendered its judgment, the Legislature had offered no express
guidance on what was meant by the term “working conditions” as this term was not defined in the
Act. On April 17, 2002, the Legislature passed 2002 Tenn. Pub. Acts 683, which became effective
on May 1, 2002. With this amendment, the Legislature defined the term “working conditions” as
“those fundamental matters that affect a professional employee financially or the employee’s
employment relationship with the board of education.” Because the Trial Court did not have
available to it this legislative guidance on what is meant by the term “working conditions”, we
vacate the judgment of the Trial Court that the dress code is not a working condition, and remand
this case to allow the Trial Court the opportunity to determine whether the dress code is a working
condition in light of the 2002 Tennessee Public Acts 683.

                                           Conclusion

                We affirm the decision of the Trial Court with respect to the arbitrability of the
increase of the length of workday, vacate the decision pertaining to the dress code, and remand this
cause to the Trial Court for further proceedings consistent with this Opinion. The costs on appeal
are assessed against the Appellee, the Polk County Board of Education.




                                                             _____________________________
                                                             D. MICHAEL SWINEY, JUDGE




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