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Bd. of Education v. Ballweber

OPINION FILED MARCH 30, 1982.

THE BOARD OF EDUCATION, ARBOR PARK SCHOOL DISTRICT NO. 145, COOK COUNTY, PLAINTIFF-APPELLANT,

v.

NANCY J. BALLWEBER ET AL., DEFENDANTS-APPELLEES.



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

PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Plaintiff, the Board of Education of Arbor Park School District No. 145 (the Board), filed suit against the Arbor Park Education Association, IEA-NEA (the Association), and its member teachers. Pursuant to a collective bargaining agreement, the Association and individual teachers had been seeking arbitration of three disputed matters. In its suit, the Board sought a declaratory judgment that the matters are not arbitrable. The trial court dismissed the Board's complaint for declaratory judgment. The Board appeals.

Although the disposition of this appeal will be controlled by the applicability of the arbitration clause in the collective bargaining agreement between the Board and the Association, it is necessary to review events leading up to that agreement. The teachers in the Arbor Park School District began the 1979-80 school year without a contract. On September 10, 1979, the teachers went on strike until September 21. Nine school days were lost to the strike. A contract, designated the Professional Negotiations Agreement (PNA), was executed on November 16, 1979. Although the Association's president and secretary signed the PNA on behalf of the teachers, on the same day (November 16) the president sent a letter to the Board stating that the PNA did not accurately represent the agreement between the parties and the document was executed under "duress." The letter charged that the Board, in preparing the written agreement, had unilaterally changed certain terms of the parties' oral agreement.

Nevertheless, neither the Board nor the Association disputed the validity of the agreement during the remainder of the school year. In fact, both parties acted in conformity with the agreement in the handling of the three grievances that are at the core of the instant litigation. The PNA defines a grievance as "a complaint that there has been an alleged violation, misinterpretation, or misapplication of any of the provisions of this Agreement." The PNA provides a five-step grievance procedure; the fifth step is submission to arbitration. The first of the relevant grievances was filed on December 16, 1979, by Robert McGaghie. McGaghie was a teacher with 30 hours of additional college credit which, under prior collective bargaining agreements, put him on a higher salary track. The PNA as executed did not contain a " 30 hours" salary track. McGaghie demanded arbitration after the Board denied his grievance.

The second grievance was filed on February 18, 1980, by JoAnn Holba, the president of the Association. Holba filed this grievance in response to a sick-leave policy statement issued by the Board on December 12, 1979. The grievance is specifically addressed to three clauses in the Board's policy statement:

"6. Certified staff members reporting sick for three or more consecutive days must submit a physician's certificate upon returning to work.

7. Excessive use of sick days may be cause for an individual conference or a request for a physical examination or other remedies at the discretion of the Superintendent.

8. Illegal use of sick days shall be considered as a breach of contract and may be cause for dismissal."

The PNA as executed contains a provision for sick leave. This provision does not include the clauses quoted above. The Holba grievance asserts that the Board is attempting to unilaterally modify the collective bargaining agreement.

The third grievance was filed on May 19, 1980, by the Association and 50 individual teachers. On April 3, the Board had voted to end the school year early (on June 6, 1980) and to "dock" the teachers three days' pay. This closing date provided 173 days of pupil attendance, rather than the 176 days required by the School Code. (See Ill. Rev. Stat. 1979, ch. 122, par. 10-19.) The PNA provided that teachers who were absent for the first three days of the strike (September 10, 11, and 12) would not be paid for those days, but the end-of-year docking was in addition to that agreed upon in the PNA. The Association argues that the Board's action amounts to an illegal pay cut in violation of the contract.

The case at bar arose when the Board filed a complaint to foreclose arbitration of the three grievances. The first count of the complaint argues that the PNA is invalid and, as a result, there is no basis for arbitration. Count II argues that the sick leave policy is inarbitrable because it is a matter within the non-delegable discretion of the Board. In count III, the Board claims that the docking is inarbitrable because the Association seeks pay for days when the teachers did not work and such payment would violate public policy. The trial court dismissed the complaint and ordered that the grievances proceed to arbitration.

• 1-3 We note at the outset that the Board has not specifically argued the inarbitrability of the McGaghie grievance, except in the context of count I (i.e., if the contract is invalid, no grievance or arbitration procedure exists). *fn1 Therefore, if the contract is binding, McGaghie is entitled to arbitration. The Board has not alleged facts sufficient to impugn the validity of the PNA. The Board argues that the contract is void for want of mutuality of obligation. The principle of mutuality of obligation demands that a contract must bind both parties in order to bind either. (See generally 1A Corbin, Contracts § 152 (1963).) The Board appears to argue that the Association's alleged rejection of certain terms of the PNA (in its letter of November 16, 1979) constitutes a refusal to be bound by the agreement, and if the Association is not bound there is no mutuality of obligation. The Board has confused lack of mutuality with lack of acceptance. The contract imposes obligations on the teachers and the teachers, provided they have accepted the contract, are bound by it. The Board's claim that the teachers have not accepted the contract is based on the Association's written complaint of "duress." Notwithstanding this objection, the Association executed the written contract. Where parties reduce their agreement to writing, there is a presumption that the writing expresses their mutual intentions, and this presumption does not yield unless evidence to the contrary is strong and convincing. (Hardy v. Greathouse (1950), 406 Ill. 365, 373, 94 N.E.2d 134.) The Association's written assent must therefore be presumed to express acceptance of the contract. The Board points to the claim of "duress," but duress renders a contract voidable, not void. (See Butler v. Metz, Train, Olson & Youngren, Inc. (1978), 62 Ill. App.3d 424, 435, 379 N.E.2d 1255.) The Association, which raised the cry of "duress," now stands by its acceptance of the contract. We find that the Board has pleaded no facts which support the conclusion that the PNA is not a binding contract. Count I of the complaint was properly dismissed.

• 4 Count II of the Board's complaint argues the inarbitrability of the Holba grievance, relating to the sick-leave policy. The Board cites section 10-20.5 of the School Code, which gives the Board the authority to "adopt and enforce all necessary rules for management and government of the public schools." (Ill. Rev. Stat. 1979, ch. 122, par. 10-20.5.) From this the Board concludes that it has discretionary power to adopt a sick-leave policy and cannot legally surrender that power to an arbitrator. If we were to accept the Board's reading of section 10-20.5, no contractual dispute would be arbitrable because any position taken by a school board could be asserted as a rule "for management and government of the public schools." It is true that certain decisions are, by statute, relegated to the non-delegable discretion of school boards. (See, e.g., Board of Trustees v. Cook County College Teachers Union, Local 1600 (1976), 62 Ill.2d 470, 476, 343 N.E.2d 473 (appointment of teachers is a non-delegable duty; arbitrator has no authority to award employment contract as a remedy for a contractual violation); Illinois Education Association v. Board of Education (1975), 62 Ill.2d 127, 130, 340 N.E.2d 7 (dismissal of a probationary teacher is a discretionary, non-delegable power of the board); Board of Education v. Johnson (1974), 21 Ill. App.3d 482, 494, 315 N.E.2d 634 (question of qualifications for teacher assignments is reserved to the board and is not a proper subject for arbitration).) We ...


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