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06/02/88 Board of Education of the v. the Illinois Educational

June 2, 1988

BOARD OF EDUCATION OF THE CITY OF CHICAGO, PETITIONER

v.

THE ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD ET AL., RESPONDENTS



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

524 N.E.2d 711, 170 Ill. App. 3d 490, 120 Ill. Dec. 681 1988.IL.869

Petition for review of order of Illinois Educational Labor Relations Board.

APPELLATE Judges:

PRESIDING JUSTICE GREEN delivered the opinion of the court. LUND and KNECHT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN

On November 29, 1984, petitioner Chicago Teachers Union, Local No. 1 , filed an unfair labor practice charge with the Illinois Educational Labor Relations Board against respondent, the Board of Education of the City of Chicago (Board), in regard to Ezell Williams, a teacher employed by the Board. The IELRB found sufficient issues existed to warrant a hearing and issued a complaint against the Board on March 22, 1985. The complaint charged the Board with unfair labor practices in violation of sections 14(a)(1), (a)(5), and (a)(8) of the Illinois Educational Labor Relations Act (Act) (Ill. Rev. Stat., 1984 Supp., ch. 48, pars. 1714(a)(1), (a)(5), (a)(8)) by (1) interfering, restraining or coercing employees in the exercise of their statutory rights; (2) refusing to bargain in good faith; and (3) refusing to comply with the provisions of a binding arbitration award in favor of Williams, respectively.

After a hearing, IELRB entered an order on June 24, 1986, approving a report and recommended order of a hearing officer. (Chicago Board of Education, 2 Pub. Employee Rep. (Ill.) par. 1089, case No. 84-CA-0087-C (Illinois Educational Labor Relations Board, June 24, 1986).) The Board attempted an appeal from that order, but, as explained later, this court dismissed the appeal on the basis that the order of June 24, 1986, lacked finality. (Board of Education v. Illinois Educational Labor Relations Board (4th Dist., Feb. 18, 1987), No. 4-86-0510 (dismissed on motions of respondents).) On July 9, 1987, IELRB issued a further order which, when combined with the June 24, 1986, order, had the effect of finding the Board guilty of each of the unfair labor practices charged. The basic theory of IELRB in making its finding, and its theory and that of CTU in this court, was that the Board committed an unfair labor practice by refusing to abide by an arbitration award. The other unfair practices arose automatically out of and were "derived" from that conduct. The order required the Board to abide by the arbitration award, to cease and desist from violations of the Act and to take affirmative action to effectuate the policies of the Act. The Board has taken administrative review to this court. (Ill. Rev. Stat., 1984 Supp., ch. 48, par. 1716.) We affirm in part and reverse in part.

The arbitrator's award arose from a grievance filed by Williams and is the heart of the dispute between the parties. On review, the Board does not dispute the propriety of the substance of the arbitrator's award. Rather, the Board contends: (1) after the Board had complied with the arbitrator's original award, the arbitrator purported to make a substantial modification of the award, and he had no authority to do so; (2) IELRB lacked jurisdiction to hear the unfair labor practices claims because CTU failed to file the complaint within the period prescribed by section 15 of the Act (Ill. Rev. Stat., 1984 Supp., ch. 48, par. 1715); (3) the evidence failed to support a finding that the Board violated sections 14(a)(1) or (a)(5) of the Act, respectively, by interfering, restraining, or coercing the employees or refusing to bargain collectively in good faith; (4) the order usurped the Board's authority in establishment of curriculum; and (5) the IELRB used improper procedures in dealing with the latter question.

The decision of the arbitrator was based upon his determination of the following facts. In 1971, the Board hired Williams and assigned him to Cregier Vocational High School. In 1973, the Board reassigned Williams to Dunbar Vocational High School in an extended-or eight-hour day teaching position. A teacher in this type of position teaches two additional classes and receives his base salary plus 20% as compensation. Williams remained in his extended-day position until September 1981, when the Dunbar high school principal reorganized the drafting department. The principal used additional hours from both extended-day and overtime positions to create a new faculty position. In the process, the principal reduced Williams to a six-hour day or "regular" teaching position.

The arbitrator concluded that the extended-day program was initiated to allow the Board to sufficiently remunerate teachers in industrial training to encourage them to enter or stay in that field rather than work in industry. The arbitrator further determined a practice, tacitly incorporated in the collective-bargaining agreement, had developed whereby a teacher hired on an extended-day assignment was entitled to retain such an assignment unless insufficient pupil selection of the subject taught by the teacher existed to justify withdrawing the assignment. The decision stated the principal sought to justify the termination of Williams' extended-day assignment on the need for another full-time teacher who would be able to give extra supervision to pupils. The arbitrator held this was not a sufficient reason, within the practice which had developed, to terminate Williams' extended-day assignment.

The arbitrator's decision was issued November 28, 1983, culminating in an award. The award stated "the grievance is sustained" and granted Williams compensation of 7.5% over his base pay for most of the 1981-82 and 1982-83 school years. The award did not mention a remedy of reinstatement. The final sentence of the award also stated "the arbitrator retains jurisdiction of this case for 30 calendar days, and either party may request clarification of the remedy." Apparently neither party objected to this retention of jurisdiction by the arbitrator, although the collective-bargaining agreement does not give an arbitrator express authorization to act further after issuance of the award. The Board paid Williams his back pay as set forth in this arbitration award.

On December 23, 1983, counsel for CTU wrote the arbitrator and sought clarification of his award. In particular, it inquired in its letter (1) whether Williams was entitled to reinstatement of his extended-day position if certain conditions as set forth in the arbitrator's decision currently existed; and (2) whether Williams, if reinstated, was entitled to additional compensation for the fall semester of the 1983-84 school year and, if so, at what pay rate. On January 4, 1984, the arbitrator responded in a letter to counsel for CTU as follows:

"Thank you for your letter of December 23, 1983, requesting clarification of the award in the above referenced case. With regard to point A, if the conditions outlined in my decision are applicable in January of 1984, i.e., no decrease in enrollments, sufficient overtime classes, etc., the grievant is entitled to reinstatement in the extended day program. This issue, you may recall, was not raised at the hearing, and the relief prayed for, sought damages for the 1982-83 ...


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