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02/14/94 BOARD EDUCATION ROCKFORD SCHOOL DISTRICT

February 14, 1994

THE BOARD OF EDUCATION OF ROCKFORD SCHOOL DISTRICT NO. 205, PETITIONER,
v.
THE ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD AND ROCKFORD EDUCATIONAL ASSOCIATION, IEA-NEA, RESPONDENTS. ROCKFORD EDUCATION ASSOCIATION, IEA-NEA, PETITIONER, V. THE ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD AND THE BOARD OF EDUCATION OF ROCKFORD SCHOOL DISTRICT NO. 205, RESPONDENTS.



Administrative Review of Illinois Educational Labor Relations Board No. 91CA0023C

As Corrected February 16, 1994. Second Correction March 18, 1994. Petition for Leave to Appeal Allowed June 2, 1994.

Honorable John T. McCULLOUGH, P.j., Honorable Robert W. Cook, J., Honorable Carl A. Lund, J.

The opinion of the court was delivered by: Mccullough

PRESIDING JUSTICE McCULLOUGH delivered the opinion of the court:

This case involves the review of a decision of the Illinois Educational Labor Relations Board (IELRB) which held (1) the Board of Education of Rockford School District No. 205 (District) violated section 14(a)(8) of the Illinois Educational Labor Relations Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 1714(a)(8)), and, derivatively, section 14(a)(1) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 1714(a)(1)) by refusing to comply with the arbitrator's award; and (2) the Rockford Education Association (Association) failed to timely file its charge pursuant to section 14(a)(5) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 1714(a)(5)), thereby depriving the IELRB of jurisdiction to issue any order on that part of the charge. Rockford School District No. 205, 9 Pub. Employee Rep. (Ill.) par. 1040, No. 91-CA-0023-C (Illinois Educational Labor Relations Board, Dec. 29, 1992).

The District appeals that part of the IELRB's decision pertaining to its violation of sections 14(a)(8) and (a)(1) of the Act. The Association appeals that portion of the IELRB's decision which held the section 14(a)(5) charge was untimely filed. We affirm that part of the IELRB's order regarding the timeliness of the section 14(a)(5) charge. However, we reverse that part of the IELRB's decision regarding the violations of sections 14(a)(8) and (a)(1) of the Act.

The incident giving rise to this grievance occurred on October 25, 1988. On that day, Dr. Peter Wehrle was teaching his sixth-hour remedial reading class. One student, Rodney Evans, chose to sit in the seat of another student, Becky (last name unknown). After Rodney refused to leave Becky's seat and return to his own, Dr. Wehrle pulled Rodney from his seat, by his left arm, to a standing position. Rodney began swinging his arms at Dr. Wehrle, causing him to have to restrain Rodney in a "bear hug" manner. At this point, both Dr. Wehrle and Rodney were kneeling on the floor. Kevin Puckett, another student, came up behind Dr. Wehrle and grabbed him around the throat with his arms. This caused Dr. Wehrle to release Rodney and retreat from both students. Both students were referred to the principal's office. Dr. Wehrle taught his seventh-hour class and then went to the emergency room at the local hospital because he was having chest pains and difficulty in breathing. Upon his doctor's advice, he took the rest of the week off.

On November 1, 1988, Dr. Wehrle was informed by letter from the District that he was suspended with pay and a due process hearing was scheduled for November 8, 1988. Dr. Wehrle's attorney telephoned a representative from the District stating that Dr. Wehrle would not attend the November 8, 1988, hearing and asked fora continuance pending the outcome of the criminal investigation of this incident. The due process hearing was rescheduled for November 14, 1988. However, Dr. Wehrle again did not attend this meeting. Based on the evidence presented to the District at that hearing, it issued Dr. Wehrle a "Notice to Remedy" pursuant to section 24-12 of the School Code (Ill. Rev. Stat. 1989, ch. 122, par. 24-12) The notice to remedy provided:

"You are hereby informed that your conduct as a teacher in this school district is deficient and unsatisfactory in the respects listed on exhibit 1 attached hereto and made a part hereof.

This Board of Education informs you that the Board has determined these deficiencies to be causes, charges, reasons and defects, which if not removed, will result in charges against you and your dismissal as a teacher in the school district. You are hereby instructed to remove and remedy each and every cause, charge, reason and defect stated on exhibit 1 and to continue to so remediate for the balance of time of your employment with this school district."

Exhibit No. 1 listed "excessive physical violence relating to the incident of October 25, 1988," and "absence from teaching assignment without prior notification or permission on October 28, 1988," as the deficiencies to be remedied. Dr. Wehrle successfully completed the remediation period.

Shortly thereafter, he filed a grievance alleging the District, by issuing the notice to remedy, violated article 14, section B, of the parties' 1988-89 collective-bargaining agreement (the '88-'89 agreement) which was in effect at the time of the incident between himself and the two students. Article 14, section B, of the '88-'89 agreement states:

"Every staff member has the right to fair and equitable treatment and accordingly shall not be acted against except for just cause." (Hereinafter the "just cause" provision.)

In his grievance, Dr. Wehrle sought to have the notice to remedy removed from his personnel file.

A memorandum from John Schmidt, the District's attorney, indicates that on December 2, 1988, he received a telephone call from Stephen Katz, the Association's attorney, stating that criminal charges were not being pursued against Dr. Wehrle. Thus, Dr. Wehrle wished "to tell his side of the story" to the District. Schmidt did not believe it would be possible to arrange such a meeting but agreed to set up a meeting with the director of secondary education. Schmidt agreed, upon Katz' inquiry, to waive any grievance-filing time limits until this meeting took place. However, this agreement was expressly conditioned upon the District's reserving its right tochallenge the applicability of the grievance-arbitration process to the issuance of the notice to remedy by the District. Katz agreed to this condition. Dr. Wehrle met with various District administrators between February and June 1989. During these meetings, he presented his version of the incident.

A demand for arbitration was filed on January 5, 1990. The District filed a motion to dismiss alleging it had the exclusive authority to determine whether conduct by teachers was remedial pursuant to sections 10-22.4 and 24-12 of the School Code (Ill. Rev. Stat. 1989, ch. 122, pars. 10-22.4, 24-12) and that such authority was not delegable, thus depriving the arbitrator of the authority or jurisdiction to issue an award. On June 28, 1990, the arbitrator denied the District's motion, finding the only issue to be addressed was whether the '88-'89 agreement had been violated. He concluded the District had violated that agreement by not according Dr. Wehrle fair and equitable treatment and acting against him without just cause. The arbitrator ordered the District to remove all material relating to the notice to remedy from Dr. Wehrle's personnel file.

On September 4, 1990, the District informed Dr. Wehrle that it believed the arbitrator was without jurisdiction to order the relief provided in his decision and to hear an arbitration matter regarding the authority of a board of education to issue a notice to remedy. The District believed the arbitrator's award was void and therefore declined to remove the documents relating to the notice to remedy from Dr. Wehrle's personnel file.

On November 7, 1990, the Association filed an unfair labor charge against the District pursuant to sections 14(a)(8), (a)(1), and (a)(5) of the Act. The complaint and notice of hearing pursuant to sections 14(a)(1) and (a)(8) of the Act was issued on January 7, 1991; however, the section 14(a)(5) charge was dismissed. (Rockford School District 205, 7 Pub. Employee Rep. (Ill.) par. 1021, No. 91-CA-0023-C (Illinois Educational Labor Relations Board, Executive Director's Recommended Decision, Jan. 7, 1991).) The District filed its answer on January 22, 1991, in which it admitted certain allegations contained within the complaint but also alleged the arbitrator was without authority and jurisdiction to issue the award, thus making it invalid and nonbinding.

On June 7, 1991, the IELRB reinstated the section 14(a)(5) allegation and ordered the Executive Director to issue an amended complaint. The amended complaint and notice of hearing was issued on June 17, 1991. The amended complaint was served by certified mail and received by the District on June 18, 1991. Rockford School District 205, 7 Pub. Employee Rep. (Ill.) par. 1072, No. 91-CA-0023-C (Illinois Educational Labor Relations Board, June 7, 1991).

A hearing was held before an administrative law Judge (ALJ) on November 5, 1991. At that hearing, the District indicated it was unaware that the IELRB had not received its answer to the amended complaint until an agent for the IELRB telephoned on August 12, 1991, indicating she could not locate a copy of the answer. At this point, the District faxed a copy of the answer to the IELRB. The District contended there was a problem with the mail ...


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