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06/01/89 Board of Education of v. Educational Labor

June 1, 1989

117, PETITIONER

v.

ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD ET AL., RESPONDENTS



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

BOARD OF EDUCATION OF JACKSONVILLE, SCHOOL DISTRICT NO.

539 N.E.2d 882, 183 Ill. App. 3d 972, 132 Ill. Dec. 319 1989.IL.824

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

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

The Board of Education of Jacksonville District No. 117 (District) appeals a determination of the Illinois Educational Labor Relations Board (Board). The District argues the Board's determination was contrary to the manifest weight of the evidence. Since we have no jurisdiction over the cause, we dismiss the appeal. Therefore, we need not reach the merits of the District's argument.

Only the facts necessary to an understanding of our Disposition will be reviewed. On May 17, 1988, the Board found the District committed an unfair labor practice when it refused to bargain over the impact of its decision to eliminate a maintenance foreman position. (Ill. Rev. Stat. 1987, ch. 48, pars. 1714(a)(5), (a)(1).) Additionally, the Board ruled the transfer of the maintenance foreman to a custodial position, rather than a maintenance technician position, was motivated by antiunion animus. (Ill. Rev. Stat. 1987, ch. 48, pars. 1714(a)(3), (a)(1).) The Board ordered reinstatement of the employee to a maintenance technician position, back pay, and impact bargaining. (Jacksonville District No. 117, 4 Pub. Employee Rep. (Ill.) par. 1075, case Nos. 85-CA-0025-S, 85-CA-0029-S (Illinois Educational Labor Relations Board, May 17, 1988).) The District filed a motion for reconsideration of the May 17, 1988, order which was denied on August 26, 1988. (Jacksonville School District No. 117, 4 Pub. Employee Rep. (Ill.) par. 1123, case Nos. 85-CA-0025-S, 85-CA-0029-S (Illinois Educational Labor Relations Board, Aug. 26, 1988).) Subsequently, the District filed a petition for review in this court. The petition for review was not filed within 35 days of the May 17, 1988, order but was filed within 35 days of the August 26, 1988, order. The District No. 117, Support Personnel, IEA-NEA (Association), moved to dismiss the petition for review as untimely. The motion was taken with the case and for the following reasons is granted.

In Board of Education of Mundelein Elementary School District No. 75 v. Illinois Educational Labor Relations Board (1989), 179 Ill. App. 3d 696, 534 N.E.2d 1022, this court held the Board did not have authority to reconsider its decisions. The Board of Education in Mundelein appealed a revised order issued by the Board after it had reconsidered its original order. The Board of Education argued the Board did not have authority by statute or rule to reconsider its decisions. The Board argued its past practice created de facto authority to review the decision. This court rejected the argument, noting the Illinois Educational Labor Relations Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 1701 et seq.) does not expressly grant the Board the authority to reconsider its orders nor does it provide guidelines. We did not decide whether the Board could enact rules for reconsideration pursuant to section 5(h) of the Act, since the Board had conceded it had not adopted such rules. This court vacated the order issued upon reconsideration as it found it was void. No appeal was taken.

Section 3 -- 102 of the Code of Civil Procedure (Code) provides:

"Unless review is sought of an administrative decision within the time and in the manner herein provided, the parties to the proceeding before the administrative agency shall be barred from obtaining judicial review of such administrative decision." Ill. Rev. Stat. 1987, ch. 110, par. 3-102.

The Mundelein case was decided after the petition for rehearing was filed in the instant case. In denying the rehearing in this case, the Board expressed no opinion on whether the District's petition for rehearing tolled the time period for filing a petition for administrative review in this court. (Jacksonville School District No. 117, 4 Pub. Employee Rep. (Ill.) par. 1123, case Nos. 85-CA-0025-S, 85-CA-0029-S (Ill. Educational Labor Relations Board, Aug. 26, 1988).) The Association and Board argue the decision in Mundelein will control the determination of the timeliness of the petition for review. The District in its objections to the motion to dismiss argues section 3-104 of the Code and article VI, section 6, of the Illinois Constitution confer jurisdiction on the court. (Ill. Rev. Stat. 1987, ch. 110, par. 3-104; Ill. Const. 1970, art. VI, § 6.) The District contends the motion to dismiss is not timely since sections 3-101 and 3-102 of the Code establish limitation periods only. (Ill. Rev. Stat. 1987, ch. 110, pars. 3-101, 3-102.) Since the Association did not object to the filing of the petition below, the District contends it waived its objections to the timeliness of the petition.

Section 3-103 provides every action shall be commenced by the filing of a complaint and issuance of a summons within 35 days from the date the decision was served upon the affected party. (Ill. Rev. Stat. 1987, ch. 110, par. 3-103.) Section 3-104 of the Code provides:

"Jurisdiction to review final administrative decisions is vested in the Circuit Courts, except as to a final order of the Illinois Educational Labor Relations Board in which case jurisdiction to review a final order is vested in the Appellate Court of a judicial district in which ...


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