APPEAL from the Circuit Court of Will County; the Hon. THOMAS
W. VINSON, Judge, presiding.
MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
This is an appeal from an order of the Circuit Court of Will County which enjoined defendant, Lockport Area Special Education Cooperative Association (hereinafter called "Association") from proceeding with any further arbitration of the grievance of one of the Association's member teachers. The trial court found that arbitration of whether or not "just cause" existed was not a condition precedent to the dismissal of the probationary teacher by the plaintiff, Lockport Area Special Education Cooperative (hereinafter called "Board").
The plaintiff, a school board, brought this action for declaratory injunctive relief as against the defendant Association, with respect to the grievance and arbitration procedures contained in a collective bargaining agreement between the two parties. The Board sought a declaration that arbitration provisions did not apply to reasons attendant upon the decision of the Board to dismiss a probationary teacher. In the alternative it was asserted that the Board was without legal authority to agree to arbitrate that issue.
As indicated, the trial court found that the reasons for dismissal of a probationary teacher were not a proper subject for arbitration under the terms of the collective bargaining agreement, and that the Board, in any case, could not delegate its discretionary power to dismiss such non-tenured teachers to a third party, such as an arbitrator.
From the record it appears that a probationary teacher, Mary Jo Carlson, was given proper notice by the Board under the School Code that she would not be rehired for the forthcoming school term. (Ill. Rev. Stat. 1973, ch. 122, §§ 24-11, 24-12.) The teacher filed a grievance with the Association, pursuant to procedures set out in the collective bargaining agreement which the teachers had with the Board, and when the grievance could not be resolved, she asked for arbitration which would be binding according to the agreement.
By the terms of the agreement, a "grievance" is an alleged violation or misinterpretation of the provisions of the agreement. The grievance in this case concerns Article II-G of the agreement which provides:
"The Board agrees that its rules and regulations governing teacher conduct shall be reasonable and that enforcement of teacher discipline shall be fair and for just cause." (Emphasis added.)
The substance of the Association's argument is that the dismissal of a probationary teacher constitutes "discipline" within the meaning of Article II-G of the agreement, and that such dismissal must therefore be for just cause, and further that the determination of whether just cause exists for the dismissal is thus a proper subject for arbitration, since, if just cause were not present, there would be a violation of Article II-G.
• 1 In Illinois, collective bargaining agreements between school boards and employees' organizations are permissible and are enforced by the courts. (Chicago Division of the Illinois Education Association v. Board of Education (1st Dist. 1966), 76 Ill. App.2d 456, 472, 222 N.E.2d 243.) It is clear, however, as stated in Board of Education v. Rockford Education Association (2nd Dist. 1972), 3 Ill. App.3d 1090, 1093, 280 N.E.2d 286, that:
"* * * a board may not, through a collective bargaining agreement or otherwise, delegate to another party those matters of discretion that are vested in the board by statute."
See also 48 Am.Jur.2d Labor & Labor Relations (1970), § 1202; Annot., 31 A.L.R. 2d 1142 (1953).
Since arbitration is binding on the parties, according to the terms of the agreement in the cause before us, the arbitrator, in effect, reviews the issue of whether or not just cause existed and his determination of the question becomes final. A probationary teacher sought to be released by the Board would be required to be retained if the arbitrator found that there was no just cause for dismissal. Such being the case, such procedure, as a practical matter, delegates the Board's discretionary power to retain or dismiss probationary teachers to the arbitrator.
• 2 The Illinois Legislature has vested power in school boards to hire and dismiss teachers, subject to the provisions of the Tenure Act (Ill. Rev. Stat. 1973, ch. 122, §§ 24-11, 24-12). There appears to be unlimited power in the boards to dismiss probationary teachers at the board's discretion, while the power to dismiss tenure teachers is considerably restricted. (See Miller v. School District No. 167 (7th cir. 1974), 500 F.2d 711.) It would thus appear that the Board in the instant case would be without power to delegate its authority, relative to the employment of probationary teachers, to an arbitrator.
The Association argues that submission of the issue of "just cause" to the arbitrator is merely to insure that the Board has followed proper procedures prior to dismissal as envisioned by the bargaining agreement, citing Classroom Teachers Association v. Board of Education (3rd Dist. 1973), 15 Ill. App.3d 224, 304 N.E.2d 516, and Illinois Education Association v. Board of Education (1st Dist. 1974), 23 Ill. App.3d 649, 320 N.E.2d 240. The Association claims that the arbitrator merely decides whether just cause in fact exists and that this is only a factual determination preliminary to the exercise of ultimate discretion by the Board. In the recent case of Wesclin Education Association v. Board of Education (5th Dist. ...