This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-96-2155

Jayne Rock, et al.,

Relators,

vs.

State of Minnesota,

Board of Trustees of the

Minnesota State Colleges and Universities, et al.,

Respondents.

Filed July 1, 1997

Affirmed

Huspeni, Judge

Board of Trustees of the Minnesota State Colleges and Universities

Christina L. Clark, Minnesota Education Association, 41 Sherburne Ave., St. Paul, MN 55103 (for Relators)

Hubert H. Humphrey III, Attorney General, Kristine Legler Kaplan, Asst. Attorney General, 445 Minnesota St., Suite 1100, St. Paul, MN 55101-2128 (for Respondents)

Considered and decided by Huspeni, Presiding Judge, Willis, Judge, and Holtan, Judge.[*]

U N P U B L I S H E D O P I N I O N

HUSPENI, Judge

Relators, all technical college instructors who had been placed on unrequested leave of absence prior to the merger of technical and community colleges, were not offered positions in the merged institution. Because we conclude that the decision not to offer relators positions was governed by and consistent with the Memorandum of Understanding (MOU) established by the bargaining units for the technical colleges and the community colleges, we affirm.

FACTS

The Minnesota Riverland Technical College merged with the Rochester Community College to form the Rochester Community and Technical College (RCTC). The business departments of the two schools were to be combined. At the time of the merger, relators Jayne Rock, Delores Wright, Abby Pinske, Bryan Piens, Sheryl Labinski, and Paul Theisen, all instructors in the technical college business department, were on unrequested leave of absence (ULA). RCTC did not offer relators the positions that became available.[1]

Two agreements governed relators' situation: the MOU drawn up prior to the merger by the bargaining unit for the technical colleges and the bargaining unit for the community colleges, and the master agreement then in effect for technical college instructors.

Relators filed grievances over RCTC's failure to offer them positions to which they claimed to be entitled pursuant to a provision of the MOU. They challenge the denial of their grievances by writ of certiorari, naming as respondents the State of Minnesota, the Board of Trustees and the Chancellor of the State Colleges and Universities, and the Commissioner of the Department of Employee Relations.

D E C I S I O N

As a threshold matter, we address respondents' argument that relators are not properly before this court. Respondents contend that relators were obligated to pursue the grievance procedure through arbitration because their bargaining agreement provides for resolution of disputed ULA placement through arbitration. We disagree. The agreement actually provides that a teacher notified of possible placement on ULA has a right to a hearing and to judicial review of that hearing. See also Dokmo v. Independent Sch. Dist. No. 11, 459 N.W.2d 671, 673 (Minn. 1990) ("the proper and only method of appealing school board decisions on teacher-related matters is by writ of certiorari"); Laird v. Independent Sch. Dist. No. 317, 346 N.W.2d 153 (Minn. 1984) (upholding district court's affirmance of school board's ULA decision).[2] Relators are properly before this court.

With respect to the issue that brings relators to this court (the alleged right to RCTC positions), there is no dispute as to the facts. The dispute concerns the interpretation of relators' bargaining agreement and the MOU. The construction and effect of a contract are questions of law for the court. Turner v. Alpha Phi Sorority House, 276 N.W.2d 63, 66 (Minn. 1979). Our standard of review is therefore de novo.

Relators base their argument on provision 4.D of the MOU:

Reinstatement Across Bargaining Units. A faculty member laid off from a position in either * * * bargaining unit at the consolidated campuses covered by this MOU may claim a vacant position in the other bargaining unit if the faculty member holds the assigned field or the requisite license for the position at the time the faculty member asserts his/her claim.

Relators' view, that this provision of the MOU entitles them to vacant positions in the other unit, requires ignoring or countermanding three other provisions of the MOU. We cannot ignore or countermand those other provisions.

Under Minnesota law, we construe the parties' agreement as a whole and attempt to harmonize all clauses of the contract in order to give effect to the parties' intention.

Medtronic, Inc. v. Convacare, Inc., 17 F. 3d 252, 255 (8th Cir. 1994).

The MOU provides at C.3.F that:

If programs or departments are combined at the consolidated campuses covered by this MOU, the employer will notify the faculty of the proposed changes before they occur. The parties agree to meet and negotiate over the impact of any decision to combine programs or departments prior to implementation of such a decision.

This provision is an exception to the provision permitting faculty on ULA from one institution to claim vacant positions in the other institution. Where departments are not being combined, faculty from one institution may claim vacant positions in the other, but where departments are to be combined, the parties will meet and negotiate over the impact of combining. There would be nothing to negotiate if vacant positions in a combined department were automatically filled by faculty on ULA.

The MOU further provides at C.3.D that:

[W]here layoffs have occurred, the employer may use cross-assignments to fill vacant positions when faculty on layoff do not exercise recall or claiming rights.

Relators' argument would require "may" in this provision to be read as "must": if faculty on ULA at one institution were automatically entitled to vacant positions at the other, employers would have no discretion in filling those positions by any method other than cross-assignment. We cannot interpret the clear language of this section to reach the result urged by relators.

Finally, the MOU provides at 4.B that "[Technical college f]aculty * * * shall have reinstatement rights per the provisions of the then-current master contract." The master contract in effect for relators provided that faculty on ULA could be reinstated only on their home campus unless there was a new or vacant position on another technical college campus to which no one had reinstatement rights. Therefore, pursuant to that agreement, relators did not have reinstatement rights to the RCTC positions.

Relators' view that one provision of the MOU entitles them to RCTC positions is inconsistent with the MOU provision that the combining of departments is to be negotiated, the MOU provision that employers may but are not required to fill vacant positions through cross-assignment, and the MOU provision that existing bargaining agreements remained in force. Construed as a whole, the MOU does not entitle relators to RCTC positions.[3]

Because we conclude that relators are not entitled to damages, we need not address the calculation of those damages.

Affirmed.

[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[ ]1Some relators were offered positions on an adjunct or temporary basis.

[ ]2Relators cite a line of cases from this court similarly upholding judicial review of school board ULA decisions: Fredrich v. Independent Sch. Dist. No. 720, 465 N.W.2d 692 (Minn. App. 1991), review denied (Minn. Apr. 29, 1991); In re Battaglia, 451 N.W.2d 46 (Minn. App. 1990); Destache v. Independent Sch. Dist. No. 832, 434 N.W.2d 270 (Minn. App. 1989); Matter of Nelson, 416 N.W.2d 848 (Minn. App. 1987), review denied (Minn. Mar. 18, 1988); Collins v. Independent Sch. Dist. No. 745, 416 N.W.2d 174 (Minn. App. 1987); Westgard v. Independent Sch. Dist. No. 745, 400 N.W.2d 341 (Minn. App. 1987), review denied (Minn. Apr. 17, 1987); Matter of Proposed Placement of Meyer, 381 N.W.2d 476 (Minn. App. 1986), review denied (Minn. Apr. 18, 1986); Bye v. Special Intermediate Sch. Dist. No. 916, 379 N.W.2d 653 (Minn. App. 1986), review denied (Minn. Mar. 14, 1986).

[ ]3Relators cite the example of another technical college faculty member placed on ULA who was offered a position. However, that faculty member was not working in a department that was to be combined and offering him a position was consistent with the MOU provision that employers may fill vacancies by cross-hiring.