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10/26/88 Faculty Association of v. Educational Labor

October 26, 1988

FACULTY ASSOCIATION OF DISTRICT 205, IEA-NEA, PETITIONER

v.

ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD ET AL., RESPONDENTS



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

530 N.E.2d 548, 175 Ill. App. 3d 880, 125 Ill. Dec. 390 1988.IL.1575

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

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT

On December 23, 1986, the petitioner, Faculty Association of District 205, IEA-NEA (Association), filed an unfair labor practice charge with the respondent, Illinois Educational Labor Relations Board , alleging the correspondent, Board of Education of Township High School District No. 205 (District or school board), refused to comply with a binding arbitration award in favor of Marion Fox, a District employee. A complaint issued by the IELRB alleged the District failed to comply with the arbitration award in violation of sections 14 (a)(1), (a)(5) and (a)(8), of the Illinois Educational Labor Relations Act (Act) (Ill. Rev. Stat. 1987, ch. 48, pars. 1714(a)(1), (a)(5), (a)(8)). On February 18, 1988, the IELRB declared the arbitrator's award non-binding and dismissed the complaint. (Township High School District No. 205 Board of Education, 4 Pub. Employee Rep. (Ill.) par. 1040, case No. 86-CA-0113-C (Illinois Educational Labor Relations Board, Feb. 18, 1988).) The Association appeals the decision of the IELRB and we affirm.

As amended, section 10-22.23 of the School Code requires that school nurses hired on or after July 1, 1976, be certificated under section 21-25 of the School Code. (Ill. Rev. Stat. 1987, ch. 122, pars. 10-22.23, 21-25.) A certificate was not a requisite of continued employment for teachers hired prior to July 1, 1976. Section 21-25 requires that a school service personnel certificate shall be issued to only those qualified nurses holding a bachelor's degree from a recognized institution of higher learning. "The holder of such certificate shall be entitled to all of the rights and privileges granted holders of a valid teaching certificate, including teacher benefits, compensation and working conditions." (Ill. Rev. Stat. 1987, ch. 122, par. 21-25.) These rights and privileges include "contractual continued service," otherwise known as tenure. Ill. Rev. Stat. 1987, ch. 122, par. 24-11.

The "reduction in personnel" provision of article IX of the collective-bargaining agreement (contract) between the District and Association requires the former, in the event of reduced enrollment, to first dismiss teachers who have not entered upon contractual continued service. The contract language parallels that in section 24-12 of the School Code. Ill. Rev. Stat. 1987, ch. 122, par. 24-12.

On April 8, 1981, the District honorably dismissed employee Marion Fox because of a decline in enrollment. Although Fox had been a school nurse in the Cook County District since 1966, she did not hold a bachelor's degree or a school service personnel certificate. At the time of Fox' dismissal, the District employed two nurses, in addition to Fox, who held certificates and enjoyed full statutory tenure. The District told Fox she was dismissed because she was the only nurse who was not certificated and who lacked any right of contractual continued service.

The Association filed a grievance on Fox' behalf and demanded arbitration. The District denied the grievance and argued it was inarbitrable. On November 4, 1982, the circuit court ordered the parties to arbitrate the dispute and the First District Appellate Court affirmed the decision on December 27, 1983. (Board of Education of Township High School District No. 205 v. Faculty Association of District 205 (1983), 120 Ill. App. 3d 930, 458 N.E.2d 1017 (District No. 205).) The Act became effective only days later on January 1, 1984.

The dispute was arbitrated on October 31, 1984. On October 17, 1985, the arbitrator found the District violated the contract when it dismissed Fox for being untenured when she had otherwise been treated by the District as a tenured teacher. The arbitrator concluded Fox was "tenured under the contract" and ordered she be reinstated with back pay, benefits, and seniority. On September 9, 1986, the arbitrator issued an award clarifying the amount of back pay owed.

The District refused to comply with the arbitrator's award and on December 8, 1986, filed a petition in the circuit court to vacate the arbitrator's decision. On July 22, 1987, the court dismissed the case for lack of subject matter jurisdiction. The District appealed, but the appeal was dismissed (July 21, 1988, 1st Dist. Gen. No. 1 -- 87 -- 2365).

Meanwhile, on December 23, 1986, the Association filed an unfair labor practice charge alleging the District refused to abide by the terms of the arbitrator's decision and a complaint was filed by the IELRB on February 26, 1987. In an order and opinion issued on February 18, 1988, the IELRB dismissed the complaint and declared the arbitrator's award non-binding because it conflicted with the School Code in violation of section 10(b) of the Act, as well as diminished the rights of statutorily tenured teachers. Township High School District No. 205, 4 Pub. Employee Rep. (Ill.) par. 1040, at 153.

The Association appeals the decision of the IELRB on the grounds that (1) the IELRB's misunderstanding of the law of the case, as set forth in the appellate court's District No. 205 decision, resulted in an erroneous holding, (2) the IELRB's application of section 10(b) of the Act to invalidate the arbitrator's award constituted "retroactive impairment of Fox' substantive rights," and (3) the District No. 205 decision was res judicata for purposes of the IELRB's review.

Initially, the IELRB and District argue the Association has waived the first and last arguments by failing to adequately raise them in its briefs addressing the issues before the IELRB. While they note the second issue was presented to the IELRB in the Association's supplemental brief, the IELRB and District allege the argument is nonreviewable ...


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