This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2000).






Lyle Abeln,





School Board of Independent School

District No. 276 Minnetonka, Minnesota,




Filed March 13, 2001


Toussaint, Chief Judge


Independent School District No. 276


Roger J. Aronson, Rischmiller, Knippel & Aronson, 607 Marquette Avenue, Suite 302, Minneapolis, MN 55402 (for relator)


Marie C. Skinner, Knutson, Flynn, Deans & Olsen, 1155 Centre Pointe Drive, Suite 10, Mendota, MN 55120 (for respondent)


†††††††††† Considered and decided by Toussaint, Chief Judge, Harten, Judge, and Foley, Judge.*

U N P U B L I S H E D† O P I N I O N


TOUSSAINT, Chief Judge

Relator Lyle Abeln seeks review of the decision by the school board placing him on unrequested leave of absence (ULA) under the teacher tenure act, Minn. Stat. ß 122A.40, subd. 10 (2000).† Because relatorís failure to grieve his rank on a seniority list resulted in a waiver his right to challenge the seniority dispute at the ULA hearing, we affirm.


††††††††††† On appeal, a reviewing court will not disturb a school board's decision to place a teacher on unrequested leave of absence unless the decision is fraudulent, arbitrary, unreasonable, unsupported by substantial evidence, not within the school board's jurisdiction, or based on an erroneous theory of law. Foesch v. Independent Sch. Dist. No. 646, 300 Minn. 478, 485, 223 N.W.2d 371, 375 (1974); In re Bristol, 451 N.W.2d 883, 884 (Minn. App. 1990).

Relator argues that the school board proceeded under an erroneous theory of law when it concluded that he waived his statutory ULA rights by failing to grieve his placement on the seniority list according to the procedures set forth in the collective bargaining agreement (CBA).† Failure to follow grievance procedures where there is a grievable issue precludes access to Minnesota courts except where an "employer and union conspire together to defeat the rights of an employee or * * * it would be futile for the employee to seek redress under the contract."† Ellerbrock v. Board of Educ., Special Sch. Dist. No. 6, 269 N.W.2d 858, 862 (Minn. 1978) (quoting Cunningham v. Federal Cart. Corp., 265 Minn. 534, 537, 122 N.W.2d 208, 211 (1963)).

Relator also argues that he was not required to file a grievance to challenge the seniority list because the seniority list was not provided for in the CBA; therefore, the grievance procedures established in the CBA were not applicable.† In determining whether an employee was required to grieve a dispute between himself and his employer, we must look to the plain language of the collective bargaining agreement between the parties.† See id. (looking to the plain language of the CBA to determine the applicability of the grievance procedures).† Here, the agreement states:

[a] grievance is defined as a dispute or disagreement between an employee covered hereunder and the Employer as to the interpretation or application of terms and provisions of this Agreement.


††††††††††† There is no specific provision in the agreement providing for a seniority list.† Therefore, relator argues that the establishment of seniority was not negotiated and did not become a term of the agreement.† Compare Berger v. Independent Sch. Dist. No. 706, 362 N.W.2d 369, 372 (Minn. App. 1985) (finding that teacherís challenge to ranking on seniority list was properly raised at ULA hearing where the parties did not negotiate a ULA, nor a seniority list), with Blank v. Independent Sch. Dist. No. 16, 393 N.W.2d 648, 649 n. 2 (Minn. 1986) (finding that employee was required to grieve ranking on seniority list where the CBA explicitly provided for annual seniority list showing "name, date of employment, qualification and subject matter or field") and Ellerbrock, 269 N.W.2d at 860-61 n. 4 (same).††

††††††††††† Contrary to relatorís assertions, the CBA does address the concept of seniority, establishes a method of calculation, and indicates that employees will accrue rights based upon their seniority within their category in the school district.† Specifically, the agreement states:

If additional reduction is necessary, the Employer will reduce staff utilizing seniority according to the provisions of this Article. ***


Seniority is defined as length of continuous active service as a building administrator with the District from the most recent date of employment as a full-time employee (30 or more hours per week).† Seniority shall be accumulated in the [following] categories ***.


(a)†††††† On a district-wide basis for all secondary building administrators.†


††††††††††† Because the CBA contemplates ranking building administrators by seniority for purposes of determining their rights and establishes a method of calculating seniority, the agreement implicitly provides for the creation of a seniority list.† Cf. Ceryes v. St. Louis County Welfare Bd., 402 N.W.2d 209, 211 (Minn. App. 1987) (holding that while real estate contract did not provide explicitly for monthly payments, it did so implicitly where the parties set the amount of the contract payments at $35, the exact amount the purchaser received each month in allowance), review denied (Minn. May 18, 1987).† Therefore, relatorís argument that the seniority list was not negotiated upon and not part of the CBA is without merit.† Accordingly, the seniority list was part of the CBA, subject to the grievance procedures set forth in the CBA.

††††††††††† Because the grievance procedure established in the CBA applies to relatorís challenge to his ranking on the seniority list, we must now determine whether relator waived his right to challenge his rank by failing to file a grievance.† There is evidence in the record that (1) the Human Resources Director, one of the persons designated by the CBA to receive grievances, requested that challenges to the seniority list be directed to him; and (2) that relator challenged his rank through e-mails and meetings with the director.† Relator, however, does not argue that the directorís directive constituted a modification of the CBA and its established grievance procedures, nor that relatorís challenges were sufficient to constitute the filing of a grievance under the CBA.† See Thiele v. Stitch, 425 N.W.2d 580, 582 (Minn. 1988) (issues not argued may not be considered on appeal).† Because relator does not dispute the school boardís assertion that he did not file a grievance challenging the accuracy of the seniority list, we conclude that relator waived his right to challenge his seniority ranking.† See Blank, 393 N.W.2d at 652 (a teacher's failure to grieve the accuracy of the seniority list through the grievance process precluded her from raising the issue at the ULA proceedings).† Therefore, the school boardís decision was not based on an erroneous theory of law.

††††††††††† Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, ß 10.