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07/28/88 East Richland Education v. Educational Labor

July 28, 1988





528 N.E.2d 751, 173 Ill. App. 3d 878, 124 Ill. Dec. 63 1988.IL.1159

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


JUSTICE SPITZ delivered the opinion of the court. GREEN, P.J., and KNECHT, J., concur.


This is a direct appeal, pursuant to Supreme Court Rule 335 (107 Ill. 2d R. 335) and section 16(a) of the Illinois Educational Labor Relations Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 1716(a)), from an order of the Illinois Educational Labor Relations Board (Board) of May 14, 1987, finding the Board of Education, East Richland Unit School District No. 1 (employer), did not commit the unfair labor practices alleged in the complaint and, consequently, dismissing the complaint. (East Richland Unit School District No. 1, Board of Education, 3 Pub. Employee Rep. (Ill.) par. 1055, case No. 86-CA-0005-S (Illinois Educational Labor Relations Board, May 14, 1987).) We affirm.

On February 4, 1986, East Richland Education Association (Association), IEA/NEA, filed a charge with the Board alleging the respondent school

The Board issued a complaint, which was set for hearing. Upon the motion of the parties, the case was removed to the Board, which, upon the stipulated facts and exhibits and the briefs of the parties, issued its decision dismissing the complaint. This appeal followed. I

The controversy underlying this appeal revolves around the employer's midterm bargaining obligation, the effect given by the Board to the "zipper clause" in the parties' collective-bargaining agreement, and the legal standard to be applied in evaluating a defense of waiver based on such a zipper clause in an unfair labor practice case under the Act.


According to the stipulated facts, prior to the end of the 1984-85 school year the employer issued a calendar which provided that December 23, 1985, was a vacation day; March 3, 1986, was a pupil attendance day; and school closed on May 30, 1986. In August 1985 the legislature enacted Public Act 84-175, effective January 1, 1986, amending section 24-2 of the School Code (Ill. Rev. Stat. 1985, ch. 122, par. 24-2), redesignating Casimir Pulaski's birthday from a commemorative holiday to a legal holiday to be celebrated on the first Monday in March (1985 Ill. Laws 1783, 1786-87).

At various meetings of the employer's board, proposals for amendments to the school calendar to provide for Casimir Pulaski day were discussed. Although the Association's president requested the employer's board and superintendent to bargain on the issue of adjusting the school calendar to accommodate Casimir Pulaski day, the employer took the position that such a change in the school calendar was not a mandatory subject of collective bargaining and no bargaining took place. The employer's board asked that the teachers be polled and the superintendent issued a memo to school district personnel requesting information on two proposed vacation dates being changed to work days to accommodate the Casimir Pulaski holiday. In November 1985, the employer's board voted to amend the school calendar to make Monday, December 23, 1985, a day of school attendance unless 100% of the teaching staff signed to approve extending the school year by one day in June 1986 and waived all rights to extra pay if the school year was extended one day. Thereafter, the employer decided to make December 23, 1985, the makeup day for the pupil attendance day lost by the addition of Casimir Pulaski's birthday as a legal holiday.

As a result, the employer's teacher employees worked December 23, 1985, as a pupil attendance day. Approximately 11 teachers were required to use personal leave to be absent from work that day and one teacher lost a day's pay.

Section 10(a) of the Act defines the duty to bargain, providing:

"An educational employer and the exclusive representative have the authority and the duty to bargain collectively as set forth in this Section. Collective bargaining is the performance of the mutual obligations of the educational employer and the representative of the educational employees to meet at reasonable times and confer in good faith with respect to wages, hours and other terms and conditions of employment, and to execute a written contract incorporating any agreement reached by such obligation, provided such obligation does not compel either party to agree to a proposal or require the making of a concession." (Ill. Rev. Stat. 1985, ch. 48, par. 1710(a).)

Section 14 of the Act provides in pertinent part:

"Educational employers, their agents or representatives are prohibited from:

(1) Interfering, restraining or coercing employees in the exercise of the rights guaranteed under this Act.

(5) Refusing to bargain collectively in good faith with an employee representative which is the exclusive representative of employees in an appropriate unit, including but not limited to the discussing of grievances with the exclusive representative . . .." (Ill. Rev. Stat. 1985, ch. 48, pars. 1714(a)(1), (a)(5).)

Section 4 of the Act provides a management rights provision which states in pertinent part:

"Employers shall not be required to bargain over matters of inherent managerial policy, which shall include such areas of discretion or policy as the functions of the employer, standards of services, its overall budget, the organizational structure and selection of new employees and direction of employees. Employers, however, shall be required to bargain collectively with regard to policy matters directly affecting wages, hours and terms and conditions of employment as well as the impact thereon upon request by employee representatives." Ill. Rev. Stat. 1985, ch. 48, par. 1704.

In proceedings before the Board the employer argued (1) it had no duty to bargain on the calendar revisions; and (2) complainant had waived any duty which might otherwise exist under the Act to engage in midterm bargaining since, under the terms of the collective-bargaining agreement, the parties had waived any obligation to enter into midterm bargaining to amend the agreement.

With respect to the employer's first point, section 10 -- 19 of the School Code provides:

"Each school board shall annually prepare a calendar for the school term, specifying the opening and closing dates and providing a minimum term of at least 185 days to insure 176 days of actual pupil attendance, computable under Section 18 -- 8 . . .. . . . Except as provided in Section 10 -- 19.1, the board may not extend the school term beyond such closing date unless that extension of term is necessary to provide the minimum number of computable days. In case of such necessary extension school employees shall be paid for such additional time on the basis of their regular contracts. . . .

A school board may make such changes in its calendar for the school term as may be required by any changes in the legal school holidays prescribed in Section 24-2." (Emphasis added.) Ill. Rev. Stat. 1985, ch. 122, par. 10-19.

Turning to the parties' collective-bargaining agreement, the only pertinent provisions are set forth below. Article V of the parties' collective-bargaining agreement provided:

"5.1 School Year

The school year shall consist of not more than one hundred eighty-five (185) days, of which one hundred eighty (180) will be scheduled as pupil attendance and institute days. Five (5) of the one hundred eighty-five (185) days shall be declared by the Board as emergency days, provided no emergencies make it necessary to use them as school days."

Article X, entitled "Effect of Agreement," contained the following clauses--including the "zipper clause," section 10.6:

"10.1 Complete Understanding

The terms and conditions set forth in this Agreement represent the full and complete understanding and commitment between the parties hereto. The terms and conditions of this Agreement may be modified by alteration, change, addition to, or deletion only through the voluntary, mutual consent of both parties in a written amendment executed in accordance with the provisions of this Agreement.

10.4 Management Rights

It is expressly understood and agreed that all functions, rights, powers, or authority of the administration of the School District and the Board of Education which are not specifically limited by the express language of this Agreement are retained by the Board, provided however, that no such right shall be exercised so as to violate any of the specific provisions of this Agreement.

10.6 Waiver of Additional Bargaining

The parties hereby acknowledge that the terms and conditions included in this Agreement represent the full and complete understanding between the parties. The Board and the Association, for the life of this Agreement, each waives any obligation to bargain collectively with respect to any subject or matter that may or may not have been known to either or both of the parties at the time this Agreement was negotiated or signed and that any bargaining will be limited to a successor Agreement, except that with the written mutual consent of both parties, such matters may be discussed and the Agreement modified.

10.8 Term of Agreement

This Agreement shall become effective on August 1, 1985 and shall continue in effect until August 1, 1986."

The parties stipulated below that (1) during negotiations for the August 1985 to August 1986 bargaining agreement there was no Discussion or mention, by either party, of holidays and/or starting or ending dates for the 1985-86 school year; and (2) prior to the 1985-86 school year, under past practice the Board of Education had revised the school calendar during the school year without negotiating the revisions.

While this case was pending, the Board issued its decision in Rock Falls Elementary School District No. 13, 2 Pub. Employee Rep. (Ill.) par. 1150, case No. 85 -- CA -- 0052 -- C (Illinois Educational Labor Relations Board, Nov. 12, 1986), reh'g denied (Jan. 15, 1987), 3 Pub. Employee Rep. (Ill.) par. 1014, wherein the Board found the bargaining representative waived its right to demand midterm bargaining when it agreed to the "zipper clause" in the parties' collective-bargaining agreement, given there was no provision in the collective-bargaining agreement which specifically addressed the issue in question.

The Board gave the parties leave to file supplemental briefs based on Rock Falls. Thereafter, the Board denied the Association's motion to withdraw the case to a hearing officer, finding its offer of proof inadequate to raise questions of fact on whether the Association "voluntarily" agreed to the zipper clause, or on the bargaining history of the clause and the intent of the parties in adopting it, reasoning as follows:

"The Association . . . contends that the facts at a hearing would show that 'during the negotiations . . . there were no Discussions, nor any intent by the parties, nor did the Association ever agree that the waiver language was intended to permit the Respondent to make changes, unilaterally, in wages, hours and terms and conditions of employment during the life of the collective bargaining agreement.' We find this absence of Discussion insufficient to raise an issue of fact over the meaning of the parties' zipper clause. [Emphasis in original.]

In [ Rock Falls ], the zipper clause, like the one herein, expressly and unequivocally provided that '[the] parties each voluntarily and unqualifiedly waive any rights which might otherwise exist under law to negotiate over any matter during the term of this [collective-bargaining] agreement . . . even though each subject or matter may not have been within the knowledge or contemplation of either or both parties at the time they negotiated or signed the agreement.' We held that such a clause, by its express terms, meant that the union waived its right to demand bargaining over changes that the employer sought to make, unless the change involved a term or condition set forth in the parties' collective bargaining agreement [emphasis added], including practices guaranteed through a maintenance of standards clause. Thus, contrary to the Association's argument, through the contractual zipper clause in this case, like that in Rock Falls, the Association expressly waived its right to demand bargaining over changes in wages, hours and terms and conditions of employment that [the employer] sought to make during the life of the collective bargaining agreement, provided it did not conflict with other collective bargaining agreement provisions. Since there is no such [conflicting] provision in the parties' agreement, [the employer] was free to act.

Nevertheless, where there are Discussions in collective bargaining about a zipper clause and there is proof that the language does not mean what it says, such proof will certainly raise an issue of fact which warrants a hearing. It is the absence of any such Discussions or expressions here that leaves the Association short of creating an issue of fact which warrants a hearing. [Emphasis in original.]" (East Richland Unit School District No. 1, Board of Education, 3 Pub. Employee Rep. (Ill.) par. 1031, at VII -- 83, case No. 86 -- CA -- 0005 -- S (Illinois Educational Labor Relations Board, March 10, 1987).)

The Board further stated: "In this regard, we note that while it may be presumed that parties use words in their ordinary sense, this 'presumption' does not govern where the parties' mutual intent to the contrary is ...

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