                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                 February 6, 2007 Session

    WILSON COUNTY BOARD OF EDUCATION v. WILSON COUNTY
         EDUCATION ASSOCIATION AND BILL REPSHER

                  Appeal from the Chancery Court for Wilson County
                     No. 04174     Charles K. Smith, Chancellor




                   No. M2005-02720-COA-R3-CV - Filed July 7, 2010


A teacher and the teachers’ representative organization appeal the trial court’s declaration
that the local school board was not required to submit to arbitration as the last step in a
grievance procedure set out in a locally negotiated agreement. We affirm the trial court
based upon our conclusion that no enforceable agreement to arbitrate exists.

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

P ATRICIA J. C OTTRELL, J., delivered the opinion of the court, in which W ILLIAM C. K OCH, J R.,
P.J., M.S., joined. W ILLIAM B. C AIN, J. not participating.

Richard L. Colbert, Amy W. Malone, Nashville, Tennessee, for the appellants, Wilson
County Education Association and Bill Repsher.

Michael R. Jennings, Lebanon, Tennessee, for the appellee, Wilson County Board of
Education.

                                          OPINION

       This case is a companion case to Wilson County Board of Education v. Wilson County
Education Association and Steve Johnson, No. M2005-02719-COA-R3-CV. The parties
themselves describe the two cases as companion cases, and the appellants describe the issues
of law in the two cases as the same. Further, both cases involve interpretation of the same
contract between the entity parties.
        As discussed in Johnson, after the issuance of the Tennessee Supreme Court’s opinion
in Lawrence County Educ. Ass’n v. Lawrence County Bd. of Educ., 244 S.W.3d 302 (Tenn.
2007), which all parties and this court knew would be relevant to the issues in these cases,
we asked the parties to file supplemental briefs on two issues in Johnson. One of those
issues was based on specific language used in the contract regarding resolution of grievances.
The parties have stated that the contract in the record in this case is the same as the contract
in the record in Johnson. Our opinion in the Johnson case has been recently filed, and we
rely on that opinion in this case, without repeating the analysis.

                                            I. B ACKGROUND

       Mr. Repsher is a tenured public school teacher in the Wilson County Public School
System. In 1998, Mr. Repsher was transferred from his position as principal at Carroll-
Oakland Elementary School and assigned as a class room teacher. The 1998 settlement
agreement between Mr. Repsher and the Wilson County Board of Education (“Board”)
arising from that transfer provided that Mr. Repsher was free to apply and would be
considered for any job vacancies for assistant principal in the future. Mr. Repsher alleges
that he applied for a number of such positions over the years but was not selected.
Nonetheless, this appeal does not involve claims that the Board failed to comply with that
settlement agreement, nor does it seek relief based on alleged noncompliance. This action
was not brought as a breach of contract suit.

       Instead, this action arises from Mr. Repsher’s efforts to resolve his dispute over a
particular situation in which he was not transferred to an administrative position. He alleges
that he applied for an assistant principal position in 2003 at Carroll-Oakland that was
ultimately filled by an individual, Mr. Beavis, who had not previously been a Wilson County
School system employee.

       At all times relevant herein the Wilson County Education Association (“Association”)
and the Board were parties to a locally negotiated agreement (“Agreement”) under the
Education Professional Negotiations Act (“EPNA”), Tenn. Code Ann. § 49-5-601 et seq.
Mr. Repsher filed a grievance under Article 2 of the Agreement alleging that hiring Mr.
Beavis for the assistant principal position violated Article 6 (A)(2) which, according to the
parties’ trial court filings,1 provides:




        1
        In their appellate briefs, neither party actually quotes the provision. In referring to it, the
Association’s brief cites to the grievance in the record, which contains the quoted language. Other
documents in the record also refer to the same quoted language.

                                                      2
       No promotional positions shall be filled until properly submitted applications
       have been considered. In filling such vacancies, preference shall be given to
       qualified employees already employed by the school system.

      However, the Agreement actually appearing in the record in this case, provides as
follows:

       Employees who have been involuntarily transferred or reassigned for
       administrative reasons shall be given preference over those employees seeking
       voluntary transfers when a vacancy is to be filled during the summer months,
       with the approval of the receiving principal.

       Because we resolve this issue on other grounds, we need not examine or discuss this
discrepancy further. To the extent this inconsistency raises questions about the content of
other parts of the Agreement appearing in the record, we deal with that issue later.

       The resolution sought by Mr. Repsher’s grievance was that he be appointed as
assistant principal at Carroll-Oakwood or “placed in another administrative position.”

       Mr. Repsher’s grievance proceeded through the steps outlined in Article 2 of the
Agreement, including consideration by the Board, until it reached Step 4. Mr. Repsher and
the Association gave notice that the grievance was to be submitted to arbitration, as provided
in the Agreement. At that point, the Board filed this action against Mr. Repsher and the
Association seeking a declaratory judgment as to whether the Board was required to submit
Mr. Repsher’s grievance to arbitration.

       On what ultimately became cross motions for summary judgment, the trial court
concluded that Tenn. Code Ann. § 49-2-303 included “assistant principals” and,
consequently, under the holding of Marion County Board of Education v. Marion County
Education Association, 86 S.W.3d 202 (Tenn. Ct. App. 2001), the director of schools had the
authority to appoint or reappoint assistant principals unhindered by the Agreement. The
Association and Mr. Repsher appealed.

       The issue on appeal is whether the decision of the director of schools not to transfer
Mr. Repsher to an assistant principal position can be subject to arbitration under the
Agreement. Mr. Repsher and the Association argue on appeal that assistant principals are
not covered by Tenn. Code Ann. § 49-2-303. Furthermore, Mr. Repsher and the Association
argue that hiring a person outside the Wilson County system constituted a violation of the




                                              3
above-quoted Article 6(A)(2) of the Agreement and that such violation is grievable.2 The
Board argues that Tenn. Code Ann. § 49-2-303 is applicable and that the Agreement may not
remove the ultimate authority for transfers from the director of schools.

       We conclude, however, that this appeal must be resolved on the basis of the language
of the Agreement itself, without recourse to the significant legal issues raised by the parties
and by decisions rendered after briefing herein.

                               II. T HE A GREEMENT TO A RBITRATE

        The appeal in this case is from a judgment declaring that the Board was not required
to submit to arbitration of Mr. Johnson’s grievance regarding his transfer. Obviously,
whether the parties effectively agreed to arbitration and how the parties agreed to define that
arbitration are initial questions important in our review of the trial court’s order. If there was
no enforceable agreement to arbitrate, the Board could not be compelled to submit to
arbitration, and the trial court’s judgment must be affirmed.3

        The precise language of the Agreement’s grievance procedures is, of course,
important to resolution of any question regarding whether there was an enforceable
agreement to arbitrate. We have relied on the Agreement found in the record of this case.
The parties supplemented the record herein to provide a complete copy of the Agreement,
since some pages were missing in the copy found in the original record. Thus, they affirmed
that the Agreement in the supplemented record was the Agreement at issue. Additionally,
in their brief, the Association and Mr. Repsher stated that “a complete copy of the negotiated
collective bargaining agreement [applicable to Mr. Repsher’s case] can be found in the
Johnson record,” citing to page numbers in the Johnson record. The same Agreement




        2
          Mr. Repsher and the Association argue that the director failed to interview him for the assistant
principal position in accordance with the settlement agreement. Whether and to what extent a violation
of the settlement agreement is grievable under the Agreement is not an issue presented on appeal. The
issue is whether the director of schools’ decision not to transfer Mr. Repsher is contractually subject to
final resolution by arbitration.
        3
          The Court of Appeals may affirm a judgment on different grounds from those relied on by the
trial court when the trial court reached the correct result. Continental Cas. Co. v. Smith, 720 S.W.2d 48,
50 (Tenn. 1986); Shutt v. Blount, 194 Tenn. 1, 8, 249 S.W.2d 904, 907 (1952); In re Estate of Jones, 183
S.W.3d 372, 378 n.4 (Tenn. Ct. App. 2005); Shoemake v. Omniquip Int’l, Inc., 152 S.W.3d 567, 577
(Tenn. Ct. App. 2003).

                                                     4
appears in both records. Therefore, we have no question as to the contents of the applicable
provision.4

       As set out in the Johnson opinion, the grievance procedure is found in Article 2 of the
Agreement. Step 3 of that procedure is a review by the Board, including a hearing. Step 4
provides that, “[i]f dissatisfied with the disposition of the grievance at step 3 . . . the
Association may submit the grievance to either (1) panel binding arbitration or (2) regular
binding arbitration.” The Agreement further describes the two types of arbitration, and the
primary distinction between them is whether the grievance is heard by a single person or by
a panel.

        Both types of “binding arbitration,” however, are subject to provisions stating the
panel or the arbitrator “may recommend reinstatement, financial reimbursement, damages
and/or other remedies.” (emphasis added). The inconsistency between “binding
arbitration” and a “recommendation”, instead of an award, by the arbitrator is obvious.
They are more than inconsistent; they are mutually exclusive. They cannot both be given
effect as defining the result of the final step in the grievance process.5

       Before courts will require parties to submit to an alternative dispute resolution
procedure, it must be shown that an enforceable agreement exists. Team Design v. Gottlieb,
104 S.W.3d 512, 517 (Tenn. Ct. App. 2002). “When the parties agree to arbitrate, they are
bound by the terms of that arbitration provision.” D & E Const. Co., Inc. v. Robert J. Denley
Co., Inc., 38 S.W.3d 513, 518 (Tenn.2001). But, “[b]ecause ‘[a]rbitration is a matter of
contract[,] . . . a party cannot be required to submit to arbitration any dispute which he has
not agreed so to submit.’” Rosenberg v. BlueCross BlueShield of Tennessee, Inc., 219
S.W.3d 892, 903 (Tenn .Ct.App. 2006) (quoting AT & T Techs., Inc. v. Communications
Workers of Am., 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986)).




        4
         The only reason we felt the need to explain why we are relying on the Agreement in the record
herein, which is the procedure we must follow, is the confusion discussed earlier in this opinion
regarding apparently different provision on another subject. No one has suggested there is another or
different version of the grievance procedure, including Step 4.
        5
         Although the agreement in Lawrence County was interpreted as providing for an arbitrator’s
recommendation to the school board, we do not know the exact language of that agreement and, for
example, whether it also purported to provide for “binding” arbitration resulting in arbitrator’s
recommendation. In that case, the parties agreed that the arbitrator’s decision was advisory only, not
binding, and subject to approval or disapproval of the board. Herein, the parties disagree as to the
meaning of Step 4 of the grievance procedure.

                                                    5
       Whether the parties have agreed to be bound by the result of a dispute resolution
process in an agreement is simply a question of contract interpretation. The question of
interpretation of a contract is a question of law. Guiliano v. Cleo, Inc, 995 S.W.2d 88, 95
(Tenn. 1999). Our review of conclusions on questions of law is de novo, with no
presumption of correctness. Tenn. R. App. P. 13(d).

       In Johnson, we concluded that the language of Step 4 of the grievance procedure was
irreconcilable and, therefore, the parties had not reached agreement. Without any “meeting
of the minds of the parties in mutual assent to the terms . . . ,” there can be no enforceable
contract. Doe v. HCA Health Servs. of Tenn., Inc., 46 S.W.3d 191, 196 (Tenn. 2001).

       Based upon the reasoning and analysis set out in the opinion in Wilson County Board
of Education v. Wilson County Education Association and Steve Johnson, we conclude that
the parties in this case did not reach a meeting of the minds with regard to the procedures that
would result in a final resolution of disputes relating to grievances under the locally
negotiated agreement herein. Accordingly, we affirm the trial court’s judgment declaring
that the Wilson County Board of Education was not required to submit Mr. Repsher’s
grievance to an arbitrator.

                                        C ONCLUSION

       We affirm the judgment of the trial court. Costs of this appeal are to be divided
equally between the appellants, as a group, and the appellee.




                                                   ____________________________________
                                                   PATRICIA J. COTTRELL, JUDGE




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