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06/09/88 Board of Governors of v. Educational Labor

June 9, 1988

BEHALF OF NORTHEASTERN ILLINOIS UNIVERSITY, PETITIONER

v.

ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD ET AL., RESPONDENTS



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

BOARD OF GOVERNORS OF STATE COLLEGES AND UNIVERSITIES, on

524 N.E.2d 758, 170 Ill. App. 3d 463, 120 Ill. Dec. 728

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

Rehearing Denied July 7, 1988. 1988.IL.912

APPELLATE Judges:

JUSTICE McCULLOUGH delivered the opinion of the court. LUND and SPITZ, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

The Board of Governors of State Colleges and Universities on behalf of Northeastern Illinois University appeals a finding of the Illinois Educational Labor Relations Board (Board). The Board found the BOG had committed an unfair labor practice by refusing to process a grievance over an employee discharge. (Ill. Rev. Stat. 1985, ch. 48, pars. 1714(a)(1), (a)(5).) The BOG argues: the Board erred in concluding the bargaining agreement provides for binding arbitration; the Board erred as a matter of law in finding discharge disputes were grievable; principles of res judicata require deference be given to the decision of the Merit Board of the State Universities Civil Service System (Merit Board) (Ill. Rev. Stat. 1985, ch. 24 1/2, par. 38b3); and the remedial order in the instant case was inappropriate.

We affirm in part and vacate in part.

On February 21, 1985, Northeastern Illinois University filed charges for the discharge of Shellie Brown. On February 28, 1985, Brown filed a Step III grievance. On March 1, 1985, Northeastern Illinois University

On March 22, 1985, and April 19, 1985, a hearing was held pursuant to the State University Civil Service System. The hearing officer's report of the March 22 hearing states in part:

"In the middle of [a witness'] testimony the hearing was recessed for lunch. After the lunch break, Mr. Pomeranz [attorney for Brown] stated that for the first time he had discovered in Discussions with his client Shellie L. Brown that she had filed a grievance (which was rejected by the University) attempting to bring the matter of her discharge under the grievance and arbitration provisions of the collective bargaining agreement between the Board of Governors of State College and University on behalf of Northeastern Illinois University and Council 31 of AFSCME. Mr. Pomeranz then moved to terminate the instant hearing on the theory that the instant hearing was premature and was without jurisdiction because the collective bargaining grievance procedure should take precedence.

After much Discussion, Mr. Pomeranz's motion was denied."

The hearing officer for the Merit Board found the university had shown cause for discharge in that Brown either misappropriated or was negligent in accounting for three tuition payments made by students. The hearing officer noted that neither Brown nor her counsel presented evidence and Brown's counsel stated he thought the grievance procedure should be exercised prior to the civil service procedure.

On March 25, 1985, the American Federation of State, County and Municipal Employees , Brown's collective bargaining representative, filed an unfair labor practice charge against the BOG pursuant to section 14 of the Illinois Educational Labor Relations Act (Act) (Ill. Rev. Stat. 1985, ch. 48, pars. 1714(a)(1), (a)(5)). A complaint issued on June 11, 1985. An amended complaint issued on June 13, 1985. The amended complaint alleged the BOG had committed an unfair labor practice by refusing to process Brown's grievance. Therefore, the BOG failed to bargain in good faith. Ill. Rev. Stat. 1985, ch. 48, pars. 1714(a)(1), (a)(5).

On August 21, 1985, a hearing on the unfair labor practice charge was held. The parties submitted a copy of the collective bargaining agreement. Article VI provides:

"Section 1. Grievance

A. A grievance is defined as any difference, complaint or dispute between the Employer and the Union or any employee regarding the application, meaning or interpretation of this Agreement.

B. Grievances may be processed by the Union on behalf of an employee or on behalf of a group of employees or itself."

The agreement also states that either the employer or union may refer an unresolved grievance to arbitration. The decision of the arbitrator shall be final and binding on the parties. Article XI provides:

"Section 1. Definition

The Employer agrees with the tenets of progressive and corrective discipline. Disciplinary action or measures shall include only the following:

a) Oral Reprimand;

b) Written Reprimand;

c) Suspension (notice to be given in writing); and

d) Discharge (notice to be given in writing).

Disciplinary action may be imposed upon an employee only for just cause."

Article XXIII provides:

"AUTHORITY OF THE ...


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