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10/31/89 Ruth Semmens Et Al., Indiv v. Board of Education of

October 31, 1989

RUTH SEMMENS ET AL., INDI

v.

AND AS REPRESENTATIVES OF A CLASS OF TEACHERS EMPLOYED AT CENTRAL ELEMENTARY

SCHOOL, LINCOLN ELEMENTARY SCHOOL AND WASHINGTON ELEMENTARY SCHOOL, PLAINTIFFS-APPELLANTS

v.

BOARD OF EDUCATION OF PONTIAC COMMUNITY CONSOLIDATED SCHOOL, DEFENDANT-APPELLEE NO. 4-89-0284



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

546 N.E.2d 746, 190 Ill. App. 3d 174, 137 Ill. Dec. 801 1989.IL.1719

Appeal from the Circuit Court of Livingston County; the Hon. William M. Roberts, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN

At all times pertinent in this case, section 24 -- 9 of the School Code has stated:

"Teachers duty free lunch period. Every teacher in any school house where 2 or more teachers are employed whose duties require attendance at the school for 4 or more clock hours in any school day shall be entitled to and be allowed a duty free lunch period equal to the regular local school lunch period but not less than 30 minutes in each school day." Ill. Rev. Stat. 1985, ch. 122, par. 24-9.

On October 6, 1987, plaintiffs Ruth Semmens, Dee Raube, and Peg Melvin filed suit in the circuit court of Livingston County against defendant, Board of Education of Pontiac Community Consolidated School District No. 429, Livingston County, Illinois (District). Plaintiffs alleged they were teachers employed by the District and meeting the requirements of section 24 -- 9. They maintained the District had not afforded them the lunch period required by section 24 -- 9 and requested injunctive relief requiring compliance by the District and damages for the period they had served while section 24 -- 9 was being violated.

Plaintiffs' complaint also alleged they represented a class of teachers employed in several schools of the District whose statutory rights in regard to a lunch period were also being violated. Subsequently, the parties stipulated a class action was appropriate and the court certified a class. At the same time, Dee Raube and Peg Melvin were dismissed as plaintiffs and replaced by Marjorie Legner and Sharon Baremore. On October 7, 1988, pursuant to section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-619), the District filed a motion to dismiss upon the basis that under the terms of the Illinois Educational Labor Relations Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 1701 et seq.), the circuit court had no jurisdiction of the case as the matter should be decided by the Illinois Educational Labor Relations Board . The motion was supported by various documents but neither the motion nor any of the documents were verified.

On October 17, 1988, plaintiffs filed an "Opposition to Motion to Dismiss." That document noted that defendant's motion was made pursuant to section 2-619(a)(1) of the Code of Civil Procedure, which provides for dismissals of complaints for lack of subject-matter jurisdiction and requires that "[i]f the grounds do not appear on the face of the pleading attacked the motion shall be supported by affidavit." (Ill. Rev. Stat. 1987, ch. 110, par. 2-619(a).) The document contended the complaint did not set forth facts on its face which showed an exclusive jurisdiction in IELRB. The document further asserted that even if all of the allegations of the District's motion and supporting material were considered, exclusive jurisdiction in the IELRB would not be shown. A hearing on the motion to dismiss was heard and, on March 10, 1989, the circuit court entered an order dismissing the complaint. Plaintiffs have appealed. We reverse and remand to the circuit court.

For reasons we will explain, we hold exclusive jurisdiction of the dispute involved here was not shown on the face of the complaint to reside in IELRB. That reason alone would require us to reverse and remand. However, we also hold that even if the District's unverified motion and supporting material were verified, the District would still have failed to make a showing that exclusive jurisdiction was vested in IELRB.

The parties do not dispute that plaintiffs' complaint shows them to be "educational employees" (Ill. Rev. Stat. 1987, ch. 48, par. 1702(b)) and the District to be an "educational employer" (Ill. Rev. Stat. 1987, ch. 48, par. 1702(a)) all within the meaning of the Act. The motion to dismiss alleged Pontiac Education Association-429 IEA/NEA (Association) is plaintiff's exclusive bargaining representative, and the District and the Association entered into a collective-bargaining agreement for the 1986-88 period which contains a procedure for filing grievances and taking a matter through arbitration. Section 11.1(a) of that article specifically defines a "grievance" as "any claim by the Association or an employee that there has been a violation, misinterpretation or misapplication of the terms of this Agreement." (Emphasis added.) The agreement contains a section entitled "Lunch Period-Certified" but leaves that section entirely blank except for the heading. The contract further contains a "zipper clause" which states the terms and conditions of the agreement represented the full and complete understanding of the parties.

The District's motion to dismiss made the further following allegation. The District and the Association executed a "side letter" in which the parties agreed to form a committee to discuss the current school lunch and recess program. The committee met but failed to reach an agreement. The District notified the Association of its intent to implement a policy of giving teachers a 30-minute, duty-free lunch period followed by a period of duties during the remainder of the school lunch-recess period. A letter attached to the motion indicated the District informed the Association it could "make a request for impact bargaining over the proposed change." The documents supporting the District's motion indicated that, previously, some teachers undertook supervisory responsibilities during the final 15 minutes of a lunch period but were not required to do so and others had the full 45 minutes free.

Another letter attached to the motion to dismiss showed the Association demanded an opportunity to bargain about the new policy. However, according to the District's motion, the Association failed to negotiate further. The attorney for the Association wrote the District of his intent to take legal action to protect the teachers' rights if they were not given a ...


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