This opinion will be unpublished and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

C2-97-1949

State of Minnesota, ex rel.,

William D. Burwell,

Relator,

vs.

Board of Education of Independent

School District No. 31, Bemidji, MN,

Respondent.

Filed June 9, 1998

Appeal dismissed; motion denied

Willis, Judge

Independent School District No. 31

Dale G. Swanson, Swanson Law Office, 407 West Broadway Avenue, Forest Lake, MN 55025 (for relator)

Ralph T. Smith, Thomas T. Smith, Smith Law Firm P.A., 115 Fifth Street NW, Bemidji, MN 56601 (for respondent)

Considered and decided by Willis, Presiding Judge, Klaphake, Judge, and Mulally, Judge*.

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

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

WILLIS, Judge

Relator school principal challenges his suspension for four weeks without pay and moves to supplement the record. We dismiss the appeal and deny relator's motion.

FACTS

On January 20, 1997, Kathleen Burwell reported to the Beltrami County Sheriff's Department that on November 5, 1996, her husband, relator William Burwell, had physically assaulted her. Burwell was charged with misdemeanor fifth-degree assault in violation of Minn. Stat. § 609.224, subd. 1(2) (1996), and pleaded guilty. Shortly after sentencing, a local newspaper published an article giving details of the assault, the prosecution, Burwell's plea, and his sentence.

At the time of his conviction, Burwell had been the principal of Horace May Elementary School in the Bemidji school district for four years. On August 28, 1997, Burwell met with Rollie Morud, the superintendent of Independent School District No. 31, to discuss his conviction. The next day, Burwell submitted a memo to Morud and the school board describing actions he intended to take to address any problems that might arise as a result of his conviction.

On September 2, 1997, Morud wrote Burwell a letter stating the school district's concern regarding the effect of Burwell's conviction on his duties and responsibilities as principal, primarily: (1) "[t]he adverse reaction to this incident by students, parents and staff which [could] impair [Burwell's] ability to perform [his] duties"; and (2) "[t]he effect of this incident on the enforcement of the school district's strict policies against violence."

With respect to the first expressed concern, Morud told Burwell that he must "formulate and implement an action plan to minimize the consequences of [his] behavior." Morud also pointed out that because Burwell likely would have to impose appropriate sanctions for violence against students and staff in the future, it would be "more than ironic if [Burwell], as the judge of violent behavior would punish such behavior when [he] personally [was] excused for similar behavior." Morud then told Burwell that to address the second concern, Burwell would be suspended for four weeks without pay.

On September 19, 1997, Burwell and the Bemidji Principals' Association ("BPA") filed a grievance against the school district on the ground that the suspension violated portions of the master employment contract between the BPA and the school district, and they requested that the matter be submitted to arbitration immediately. On October 22, 1997, Burwell filed this certiorari appeal from the superintendent's decision.

D E C I S I O N

The school board argues that because the temporary suspension is not a termination of Burwell's employment under Minn. Stat. § 125.12 (1996)[1], he has not exhausted his grievance remedies and therefore certiorari review is not appropriate. The existence of subject matter jurisdiction is a question of law, which this court reviews de novo. Neighborhood Sch. Coalition v. Independent Sch. Dist. No. 279, 484 N.W.2d 440, 441 (Minn. App. 1992), review denied (Minn. June 30, 1992).

Minnesota has a "strong public policy" favoring resolution of labor disputes through arbitration. Ellerbrock v. Board of Educ., Special Sch. Dist. No. 6, 269 N.W.2d 858, 862 (Minn. 1978). The Public Employment Labor Relations Act (PELRA) provides that "[a]ll contracts must include a grievance procedure providing for compulsory binding arbitration of grievances including all written disciplinary actions." Minn. Stat. § 179A.20, subd 4(a) (1996). The supreme court has held that PELRA "contemplate[s] that grievances be arbitrated rather than litigated in the courts." Ellerbrock, 269 N.W.2d at 862. The "underlying policy and purpose of PELRA is to discourage litigation and promote simple, informal procedures for resolution of conflict * * * ." Minnesota Educ. Ass'n v. Independent Sch. Dist. No. 495, 290 N.W.2d 627, 629 (Minn. 1980) (citation and internal quotation omitted). 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, 269 N.W.2d at 862 (quoting Cunningham v. Federal Cartridge Corp., 265 Minn. 534, 537, 122 N.W.2d 208, 211 (1963)). But if a school board does not object to a teacher's failure to exhaust administrative remedies, it waives its right to force the teacher to follow grievance procedures. Id. at 864.

Burwell contends that the school board has waived its right to require him to exhaust his administrative remedies because it "fail[ed] to demand arbitration." But before he filed this certiorari appeal, Burwell filed a grievance with the school district and requested that the district waive preliminary grievance procedures and submit the matter directly to arbitration. The school board objected to Burwell's failure to exhaust administrative remedies at the first available opportunity.

Respondent school board relies on Ellerbrock, where the supreme court found that because a teacher should have pursued her objection to her placement on a seniority list through the grievance procedure established by the master employment agreement, the teacher's failure to grieve would normally foreclose court action. See id. But because the school board failed to demand that she follow the grievance procedures, it waived its right to force the teacher to do so. Id.

The master employment agreement entered into here between the school district and the BPA contains the following definition of "grievance":

A "grievance" shall mean an allegation by an employee resulting in a dispute or disagreement between the employee and the School Board as to the interpretation or application of terms and conditions of employment insofar as such matters are contained in this Agreement.

(Emphasis added.) The agreement then provides specific grievance procedures.

Although Burwell has filed his grievance against the school district but names the school board as the respondent in his certiorari appeal, the conduct of which he complains is the same in both proceedings, namely, the superintendent's decision to suspend him for four weeks without pay. In their September 19, 1997, grievance letter, Burwell and the BPA identify the specific provisions of the master employment agreement that they allege were violated by suspending Burwell without pay. The suspension is therefore a "matter[] contained in [the] Agreement." Because Burwell has filed a grievance against the school district and the master agreement requires him to proceed by grievance, he is precluded from concurrent review of his suspension by writ of certiorari.

Because we have determined that Burwell is not entitled to review, we find Burwell's motion to supplement the record moot and therefore deny the motion.

Appeal dismissed; motion denied.

[ 1] Minn. Stat. § 125.12 governs employment, contracts, and termination of teachers in cities not of the first class. A city of the first class is one with more than 100,000 inhabitants. Minn. Stat. § 410.01 (1996). Section 125.12, therefore, applies to teachers in the Bemidji school district. A principal is a "teacher" within the meaning of section 125.12. Minn. Stat. § 125.12, subd. 1.