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Mckenna v. Bd. of Trustees of Univ. of Ill.

OPINION FILED NOVEMBER 25, 1980.

LOUIS J. MCKENNA ET AL., PLAINTIFFS-APPELLANTS,

v.

THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR L. DUNNE, Judge, presiding.

MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Four nonacademic employees at the University of Illinois Medical Center campus brought this action seeking declaratory and injunctive relief from their employer's redesignation of their wage rate classification. Defendants filed a section 45 motion to dismiss (Ill. Rev. Stat. 1977, ch. 110, par. 45), alleging plaintiffs failed to state a cause of action. After argument of counsel, the circuit court granted defendants' motion.

Plaintiffs ask this court to determine (1) whether the trial court erred when it ruled that the parties fell without the scope of "An Act in relation to the rate of pay for State employees who are not subject to the `Personnel Code'" (Ill. Rev. Stat. 1975, ch. 127, par. 391) (the Pay Act); (2) whether it was error to rule that the University Civil Service System Act (Ill. Rev. Stat. 1975, ch. 24 1/2, par. 38b1 et seq.) (the System Act) permitted the redesignation of plaintiffs' wage rate classification; (3) whether the redesignation of that classification violated a provision of the University's Policy and Rules — Non-Academic (Policy & Rules); (4) whether plaintiffs are bound by the terms of their collective bargaining agreement; and (5) whether plaintiffs failed to exhaust their administrative remedies.

The pleadings contain the following allegations. Plaintiffs Louis J. McKenna, Nick Krukoff, Dominic Cavaliere, and Charles Velkoborsky are employed as construction laborers by defendant Board of Trustees of the University of Illinois (the Trustees). The Trustees have direct responsibility for administration of nonacademic personnel including plaintiffs. This responsibility includes collective bargaining negotiation with employee group representatives. The results of any such negotiation are subject to approval by defendant Donald Ward, the director of personnel services at the university. The general terms and conditions of employment, however, are governed by the System Act. That act establishes defendant University Civil Service System Merit Board (the Merit Board). The recommendations of both the Trustees and Ward are subject to the Merit Board's approval.

On January 1, 1952, construction laborers were compensated according to the prevailing rate of wage paid to local private sector employees who were engaged in work of a similar character. Those employed as construction laborers at the Medical Center campus received wages according to a prevailing rate tied to the wage scale contained in the collective bargaining agreement governing Local No. 6 of the International Hod Carriers and Building Construction Laborers Union. In 1965, the Merit Board redesignated construction laborers from "prevailing rate of wage" employees to negotiated rate of wage employees. University construction laborers, however, continued to receive a wage tied to the prevailing rate until sometime in late 1976 or early 1977. In April of 1977, plaintiffs' collective bargaining agreement effected a retroactive discontinuance of the compensation which paralleled the local union's agreement. The Merit Board thereafter approved a negotiated rate of pay. Wages under the negotiated rate were less than wages that would have been paid under the prevailing rate of wage. After plaintiffs were informed of the redesignation, they filed the instant complaint.

The first count of plaintiffs' complaint alleges defendants' approval of the lesser, negotiated wage violated the Policy & Rules, which prohibit elimination of established practices relating to conditions of employment. Count two alleges the Merit Board violated the System Act when it failed to notify plaintiffs of its redesignation of their wage classification. Count three claims the redesignation contravenes the System Act, while count four asserts defendants' payment of a negotiated rate of compensation is in violation of the Pay Act (Ill. Rev. Stat. 1975, ch. 127, par. 391).

The trial court granted defendants' motion to dismiss after it found as follows: that the System Act, but not the Pay Act, governs plaintiffs' employment by defendants; that plaintiffs had been prevailing rate of wage employees who were subject to the negotiation provisions of the System Act; that plaintiffs' terms and conditions of employment were changed by negotiation through their duly authorized bargaining agent; that plaintiffs were bound by that agent's acts; and finally, that plaintiffs failed to exhaust their administrative remedies.

I.

Plaintiffs first contend they are entitled to receive compensation according to the prevailing rate of wage because the Pay Act requires that result. That statute provides as follows:

"Whenever any State * * * authority * * * employs an individual in a * * * position of such a character as would be subject to rules or regulations of the Department of Personnel requiring the payment of the prevailing rate of wages to those holding such a position * * * if that employment were subject to the `Personnel Code,' the State * * * authority shall pay that individual at the prevailing rate, notwithstanding the non-applicability of the `Personnel Code.'" (Ill. Rev. Stat. 1975, ch. 127, par. 391.)

It is uncontested that if plaintiffs were subject to the Personnel Code they would be compensated at the prevailing rate of wage. Section 4c(9) of the Personnel Code specifically exempts plaintiffs from its applicability. (Ill. Rev. Stat. 1977, ch. 127, par. 63b104c(9).) Plaintiffs argue that the Pay Act therefore mandates payment of them at the prevailing rate of wage. We disagree.

• 1 The trial judge correctly ruled that the Pay Act does not apply to defendants. In Decker v. University Civil Service System Merit Board (1980), 85 Ill. App.3d 208, 406 N.E.2d 173, the court considered arguments identical to those advanced here. That court held, in a well-reasoned opinion, the University of Illinois was not an agency of the State within the meaning of the Pay Act. (85 Ill. App.3d 208, 213.) It also held application of the Pay Act to the university would impliedly repeal a provision of the System Act. Consistent interpretation of both statutes could be made only if the more general provisions of the Pay Act were held not to apply to the university. The court concluded that the provisions of the System Act governed University of Illinois nonacademic employees. (85 Ill. App.3d 208, 214; see also People ex rel. Board of Trustees v. Barrett (1943), 382 Ill. 321, 343, 46 N.E.2d 951.) We adopt the rationale of Decker and, accordingly, hold the Pay Act does not apply to the instant parties. Plaintiffs' count four fails to state a cause of action.

II ...


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