Appeal from the Circuit Court of Winnebago County; the Hon.
Alford R. Penniman, Judge, presiding.
JUSTICE SCHNAKE DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 5, 1987.
On January 2, 1985, the Rockford Education Association (Association) filed a grievance against the board of education of Rockford School District No. 205 (board of education) relating to the procedures for filling vacancies. Thereafter the board of education filed a petition for rule to show cause why the Association should not be held in contempt for violating a prior injunction enjoining the Association from filing arbitration demands on questions of discretionary teacher appointments. The Association then moved to dissolve the injunction on the ground that it had been superseded by the recently enacted Illinois Educational Labor Relations Act (Ill. Rev. Stat. 1985, ch. 48, par. 1701 et seq.) (IELRA or Act). The circuit court of Winnebago County denied the Association's motion to dissolve the injunction on June 12, 1985, and this appeal followed.
The relevant facts in this case are not in dispute. In June 1983 both Carl Nielsen and Judith Luter applied for a position as a counselor at Guilford High School. When the board of education appointed Luter to the position, the Association, as the recognized exclusive bargaining representative of the professional staff of Rockford School District No. 205, filed a grievance on the basis that Nielsen was the most senior qualified applicant. The Association based its grievance on a clause in the 1981-84 collective-bargaining agreement which stated:
"If more than one applicant has applied for the same position the applicant best qualified for that position shall be appointed, and qualifications being substantially equal, seniority in the school system shall control."
Efforts to resolve this dispute were unsuccessful, and the Association submitted the grievance to binding arbitration pursuant to the collective-bargaining agreement. The board of education, however, refused to arbitrate the grievance and filed a complaint for declaratory judgment and permanent injunction on the theory that "notwithstanding anything to the contrary contained within the Agreement, the discretionary appointment of teachers to employment positions is a power vested exclusively in the school district, is not delegable, and, therefore is not a proper subject of arbitration." The trial court agreed with the board of education and entered a permanent injunction on July 13, 1984, enjoining the Association from filing arbitration demands on "questions of discretionary teacher appointment."
During the 1984-85 school year, a similar vacancy opened at Auburn High School, and Nielsen again applied. By this time the parties had executed a new three-year collective-bargaining agreement for the 1984-87 school years. This agreement was negotiated under the IELRA that had become effective on January 1, 1984. This contract also contained the language:
"If more than one applicant has applied for the same position, the applicant best qualified for that position shall be appointed, and qualifications being substantially equal, seniority in the school system shall control."
Nielsens' application for the Auburn High School counselor vacancy was also denied, and the Association filed a second grievance alleging that Nielsen was the most senior qualified applicant. Unable to resolve the grievance, the Association filed a demand for arbitration on January 2, 1985. Once again the board of education refused to arbitrate the grievance on the basis that it was prohibited by the July 13, 1984, permanent injunction. The board of education then filed a petition for a rule to show cause why the Association should not be held in contempt of court for violating that injunction. The Association answered the petition and moved to dissolve the injunction on the theory that the IELRA had superseded the injunction and required the board of education to bargain over procedures for filling vacancies and, if necessary, to arbitrate disputes arising therefrom.
On June 12, 1985, the Association's motion to dissolve the injunction was denied, and the Association and its president, Thomas Morgan, were held in contempt. The Association thereafter filed this appeal from the order refusing to dissolve the injunction. No appeal has been taken from the finding of contempt because no sanction was imposed. The Illinois Educational Labor Relations Board (Labor Board) was given leave to file a brief as amicus curiae.
• 1 The first issue raised is whether the trial court exceeded its subject matter jurisdiction by deciding the arbitrability of the parties' dispute. Neither the Association nor the Labor Board disputes the trial court's jurisdiction to decide the continued validity of its own prior injunction. Rather they argue that the trial court did not have jurisdiction to determine the arbitrability of the dispute and should have dissolved the injunction solely on the basis that under the IELRA it was now within the Labor Board's exclusive primary jurisdiction to decide initially the arbitrability of the grievance.
This precise issue was recently addressed in Board of Trustees v. Cook County College Teachers Union, Local No. 1600 (1985), 139 Ill. App.3d 617. There a teacher filed a grievance after she was found unqualified to teach a nutrition class which was later assigned to her program director. After her grievance was denied her union submitted it to arbitration, and the board of trustees filed an action to enjoin the arbitration proceeding on the basis that its decisions with respect to teacher qualifications were non-delegable and, therefore, were not subject to arbitration. The appellate court held that the circuit court did have subject matter jurisdiction to determine initially the arbitrability of the grievance because the union's attempt to arbitrate an allegedly inarbitrable matter was not explicitly listed as an unfair labor practice as defined by the IELRA and, therefore, the IELRA did not abolish the traditional circuit court action to enjoin arbitration. The court stated:
"[E]ven if this particular unfair labor practice encompasses an employer's refusal to arbitrate, the statutory enumeration of unfair labor practices pertaining to the union does not include a provision allowing the board to charge the union with an unfair labor practice ...