| MARLENE MINSHULL, | | | CASE NO. 166 |
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| Plaintiff, | | | |
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| v. | | | OPINION AND ORDER |
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| THE SCHOOL DISTRICT OF | | | |
| SUTHERLAND, IN THE COUNTY | | | |
| OF LINCOLN, IN THE STATE OF | | | |
| NEBRASKA, A POLITICAL | | | |
| SUBDIVISION, | | | |
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| Defendant. | | |
Appearances: For Plaintiff: Theodore L. Kessner
For Defendant: Harold W. Kay
Before: Judges Wall, Kratz and Rudolph
RUDOLPH, J.:
The facts of this case are not in dispute, the Plaintiff, Marlene Minshull, notified her supervisor, Charles Crow, that she was taking personal leave to permit her to see and hear her daughter perform at a school-sponsored music contest on March 21, 1975. He told her to get a substitute and to go to the music contest.
She contacted her regular substitute on March 17, 1975 and arranged for her replacement. The substitute teacher happened to be the wife of the Superintendent, Vernon Thomsen. On the 18th of March, the Superintendent told Mrs. Minshull that he did not consider going to music competition personal business and she could not be paid for the day. Mrs. Minshull went to the South Platte Valley Association Music Competition leaving work at 10 A.M. and was docked $36.00. Mrs. Minshull filed the proper grievance and was denied relief by the Board of Education on May 14, 1975.
The basis of this denial was that Article IX, Paragraph 1 of the employment agreement between the Board and the Association concerning personal leave did not cover the situation where a parent who is a teacher wishes to see her children in an authorized activity during school hours.
Article IX, Paragraph 1 provides as follows:
Personal leave is defined to be a leave from classroom duties in order that the teacher can transact personal business. Two days of this type leave is available for each teacher per year. All arrangements for the taking of the days of personal leave should be made with the Superintendent of Schools well in advance in order that the Superintendent can make arrangements for the teacher's absences. (This is according to the recommendations of the fact-finding board of 1972.)
The Article incorporates by reference a certain fact-finding report dated 1972. The applicable paragraph of this report was as follows:
"5. The Fact-Finding Board defines personal leave to be a leave from classroom duties in order that the teacher can transact personal business.
The Fact-Finding Board recommends that each teacher be allowed two days of personal leave per year. All arrangements for the taking of the days of personal leave should be made with the Superintendent of Schools well in advance in order that the Superintendent can make arrangements for the teacher's absence."
This testimony of two of the members of the fact-finding team was that the prior rule was that a teacher was allowed one day a year subject to the Superintendent's approval and that the Association was asking for two days a year at the discretion of the teacher with the sole duty on the teacher being to give timely notice so a substitute could be found. It is clear that Paragraph 5 adopted the teachers understanding.
Dr. W.G. Hasemeyer testified that he considered that personal leave involved two factors. First, that the transaction could not be accomplished outside school hours and second, that it be of a commercial nature. He testified that as a Superintendent and college president, he has applied such a term and that it could not apply to a desire to hunt and was not a vacation.
On cross examination he agreed that in his application of the term personal leave, it had been under the system where the leave was to be granted only on the approval of the superior and that Article IX, Paragraph 1 did not have such a provision for approval of the leave but only a provision for notice.
To have a full understanding of the term "personal leave", we must consider the other leaves available and the fact that it is limited to two days a year. Under the agreement there are several kinds of leave including professional, sick, and death leaves to cover particular situations. Personal leave certainly is not a vacation. If it were, reasonable men would have simply said that each teacher had a right to take two days off each year. On the other hand, it is clearly difficult to define what activities are within or without this category. In a personal leave provision where leave operates in the discretion of the Superintendent, his application of such a rule should not be questioned by this Court unless there is evidence that in such an application he was arbitrary or discriminatory. All reasonable interpretations in such a situation must be upheld by this Court.
The same must apply when the first application of the rule is given to the teacher. If her interpretation of the rule is reasonable, neither the Superintendent nor this Court should interfere. This method of interpreting agreements is essentially the same as found in Westbrook v. Masonic Manor , 185 Neb. 660, 178N.W. 2d 280 (1970).
It is clear that an interpretation that claimed personal leave was a vacation would be unreasonable; on the other hand, an application of the rule to non-commercial occasions that could not otherwise be accommodated during school hours is certainly as reasonable an interpretation as to limit such personal leave to commercial transactions. To say that closing a personal business transaction is more important than hearing your child perform in an authorized school function seems to both denigrate the parental and school role in this society. Such a position seems strange when emanating from a school board.
To recapitulate, Paragraph 1 of Article IX of the agreements grants the teacher two days' personal leave to be taken at their discretion. This personal leave is limited in two ways. First, the teacher must give adequate notice so that a substitute may be found; and second, it must be taken for a reasonable purpose that could not be accomplished outside of school hours. The school Board and this Court may not disallow the teacher pay for these two days unless it finds either that adequate notice was not given or that the purpose was unreasonable, such as mere entertainment, or that the purpose could have reasonable been accomplished outside of school hours.
Entered June 1, 1976.
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