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04/10/87 Robert L. Biggiam Et Al., v. the Board of Trustees of

April 10, 1987

ROBERT L. BIGGIAM ET AL., PLAINTIFFS-APPELLEES AND CROSS-APPELLANTS

v.

THE BOARD OF TRUSTEES OF COMMUNITY COLLEGE DISTRICT NO. 516, DEFENDANT-APPELLANT AND CROSS-APPELLEE



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

506 N.E.2d 1011, 154 Ill. App. 3d 627, 107 Ill. Dec. 120 1987.IL.481

Appeal from the Circuit Court of Kane County; the Hon. James F. Quetsch, Judge, presiding.

APPELLATE Judges:

JUSTICE UNVERZAGT delivered the opinion of the court. REINHARD and INGLIS, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT

This is an appeal and cross-appeal from the judgment of the circuit court of Kane County entered in an action brought by the plaintiff teachers who were dismissed as part of an economic retrenchment by the defendant, Waubonsee Community College (Community College District No. 516).

The trial court's decision was in favor of plaintiffs Newlon, Biggiam, and Moreland and against plaintiffs Vargas and Pigage. Plaintiff Martz dismissed her complaint prior to hearing, and she is not involved in this appeal.

Specifically, the court's order provided that under the provisions of section 3B-5 of article IIIB "Tenure" of the Public Community College Act (the Community College Tenure Act or Act) (Ill. Rev. Stat. 1985, ch. 122, par. 103B-5) and article VII, section (e)(1), of the collective-bargaining agreement between the faculty union and the defendant community college, Newlon was entitled to "bump" from Speech 100 teaching assignments, in order, any part-time teacher of Speech 100 and any probationary (meaning nontenured) or less senior teacher whose course load consisted solely of Speech 100. His compensation would be that of a full- or part-time teacher commensurate with his assigned course load.

Biggiam and Moreland were entitled to bump any part-time, probationary, or less senior teacher of welding, their compensation to be commensurate with the full- or part-time status of their employment as above. Moreland, having greater seniority, would have bumping preference over Biggiam. Compliance with the above portions of the court's order was to be effective at the commencement of the "next teaching period [fall, 1986]"; a stay of the court's order pending this appeal was entered by the trial court on June 18, 1986.

Vargas was entitled to bump, should any part- or full-time positions arise during the statutory recall period provided in section 3B-5 of the Act, only in regard to counseling positions as per article VIII, section B, of the collective bargaining agreement. She was found not qualified to teach psychology under the "Qualifications to Teach" agreement between the faculty union and the college.

Pigage was found to be non-tenured and outside the protection of the Act.

The defendant board of trustees (the board) seeks reversal of the court's judgment as to Biggiam, Moreland, and Newlon and affirmance as to Vargas and Pigage except insofar as Vargas was found entitled to bumping rights, which the board asks be reversed. In the course of such reversals and affirmances, it asks we determine that: (1) section 3B -- 5 of the Community College Tenure Act refers only to full-time faculty members; (2) the collective-bargaining agreement covers and refers only to full-time faculty members; (3) that section 3B -- 5 of the Community College Tenure Act and the collective-bargaining agreement, when read together, refer only to full-time faculty members; (4) no full-time positions with the college existed for which plaintiffs were qualified; (5) the board was not required to gerrymander or combine part-time positions to create full-time positions for the teachers; and (6) it is the board which has the duty and the power to determine qualifications to teach and competency to render the service.

The teachers cross-appeal, contending that the court erred (1) by delaying the time of compliance to fall 1986; (2) in restricting Newlon's bumping rights to persons whose teaching assignments consisted solely of Speech 100; (3) in determining the compensation to be received by Newlon and Moreland since that issue is not determinable under the Act but, rather, under the collective-bargaining agreement, which provides for resolution of disputes by arbitration; (4) by failing to find Vargas competent to teach psychology; and (5) by failing to recognize the recall rights of Pigage under the Act.

After denying cross-motions for summary judgment, the cause proceeded to hearing. The court admitted in evidence the following "Stipulation of Facts" offered by the parties:

"1. That this stipulation is in addition to all undisputed facts in the affidavits previously filed by all parties hereto.

2. That this stipulation may be considered together with any testimony received by the Court. Any document previously provided to the Court may also be considered as evidence by the Court.

3. That the following is a statement of facts agreed upon by all parties.

STATEMENT OF FACTS

A. The Defendant, BOARD OF TRUSTEES OF COMMUNITY COLLEGE DISTRICT NO. 516, is a duly authorized board existing under Article III of the School Code [ sic ] (Ill. Rev. Stats., ch. 122, par. 103 -- 1, et seq.). The Defendant is a "board" within the meaning of the Community College Tenure Act (the "Act") (Ill. Rev. Stats., ch. 122, par. 103B -- 1, et seq.).

B. All plaintiffs are "faculty members" within the meaning of the Community College Tenure Act. Plaintiffs, BIGGIAM, MORELAND, NEWLON and VARGAS have tenure within the meaning of the Act. PIGAGE is nontenured.

C. Defendant, on February 19, 1985, by resolution (copy previously provided Court) moved to dismiss the six Plaintiffs and each received notice letters in conformity with par. 3B -- 5 of the Act. In response to the overall financial condition of the College, taking into account low enrollment, both generally and in particular programs, cost effectiveness of particular programs and efficiency of current full-time faculty staffing levels, the BOARD eliminated the six full-time teaching positions. There is no issue raised nor is it claimed that the BOARD acted with improper or unlawful motive.

D. The Waubonsee Community College Faculty Federation Local 2065 (the "Union") is the historically recognized collective bargaining representative for full-time faculty members regularly engaged in teaching, counseling or library services employed by the Defendant. All Plaintiffs are members of the Union.

E. In December, 1983, the Union and the Defendant agreed to a "Qualifications to Teach" agreement (copy previously provided Court).

F. The Union and the Defendant simultaneously negotiated "grandfather" clauses into their collective bargaining contracts which read as follows:

Article VII

(e) Determination of Teaching Assignments.

(i) Faculty members hired prior to the Board's adoption on December 20, 1983, of the "Qualifications to Teach" shall not be adversely affected thereby in connection with the teaching positions held by those faculty members as of that date. [Emphasis added.]

Article VIII

(b) Counselors hired prior to the Board's adoption on December 20, 1983, of the "Qualifications to Teach" shall not be adversely affected thereby in connection with the counseling positions held by those faculty members as of that date. [Emphasis added.]

A copy of the 1984-1986 Collective Bargaining Agreement has been previously provided to the Court.

G. The number of part-time teachers employed by the Defendant for the 1985-1986 school year will be the same or less than were employed for the 1984-1985 school year and previous school years.

H. Full-time faculty members teach 14 to 16 credit hours per semester or approximately 30 credit hours per academic year. Full-time counseling faculty work 40 hours per week. At the beginning of the 1984-1985 school year, the Defendant had a total of 73 faculty members and 241 part-time members. The decrease in the number of full-time faculty members resulted from the retrenchment of the aforementioned six faculty members, the early retirement of six faculty members, and the voluntary resignation of two faculty members. I. Part-time faculty members are engaged by a contract on a semester by

semester basis, depending upon the course load, which in turn is dictated by student enrollment and student election of courses. During the 1984-1985 school year and in previous school years, part-time teachers have frequently taught many of the same courses that are also taught by regular full-time faculty members.

J. NEIL NEWLON -- Newlon was hired full-time in the fall of 1979 expressly to build a theatre department, to build enrollments in theatre courses, and to build an active group of student participants. Newlon has a masters degree in theatre; he does not have a masters degree in speech.

The following chart illustrates Newlon's course load since spring 1983. This shows scheduled classes, classes which were cancelled or combined, and resulting reassignments to create a full course load.

NEWLON's SCHEDULE FOR 1982-1985

Scheduled Cancelled Combined Reassigned

Spring 1983 TH241.01

TH244.01

TH140. ...


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