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06/29/94 MACOMB EDUCATION ASSOCIATION v. ILLINOIS

June 29, 1994

MACOMB EDUCATION ASSOCIATION, IEA-NEA, PETITIONER,
v.
THE ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD AND MACOMB COMMUNITY UNIT SCHOOL DISTRICT # 185, RESPONDENTS.



Administrative Review of Illinois Educational Labor Relations Board. No. 91CA0040S

Released for Publication August 24, 1994. As Corrected September 6, 1994.

Honorable Frederick S. Green, J., Honorable Robert W. Cook, J., Concurring, Honorable James A. Knecht, Specially Concurring

The opinion of the court was delivered by: Green

JUSTICE GREEN delivered the opinion of the court:

Section 15 of the Illinois Educational Labor Relations Act (Act) provides that when "an employee, an individual or a labor organization" files a charge of an unfair labor practice with the Illinois Educational Labor Relations Board (Board), an investigation shall be made, and if thereafter the Board "finds that the charge states an issue of law or fact, it shall issue and cause to be served upon the party complained of a complaint" and proceed, in due course, to a hearing. (115 ILCS 5/15 (West 1992).) The Board has implemented section 15 by enactment of its rule 30, which states in part:

"(4) If the Executive Director concludes that the investigation has established that there is an issue of law or fact sufficient to warrant a hearing, he shall issue a complaint * * *.

(5) If the Executive Director concludes that the investigation has established that there is not an issue of law or fact sufficient to warrant a hearing, the Executive Director shall dismiss the charge." (Emphasis added and omitted.) 80 Ill. Adm. Code, ch. 111, § 1120.30(b)(4)(5) (1992).

In this case, the Board was presented with a charge of an unfair labor practice and dismissed it and refused to file a complaint upon the basis that, although the charge presented some questions of fact or law, any impact upon an aggrieved party was "de minimis." We conclude the Board acted within its power and discretion and affirm its order.

On March 8, 1991, acting pursuant to section 15 of the Act, Macomb Education Association (Association), exclusive bargaining representative for the teachers of respondent, Macomb Community Unit School District (District), filed an unfair labor practice charge with the Board against the District alleging:

"On or about January 22, 1991, the [District], by its officers, agents, and representatives, has interfered, restrained and coerced its employees in the exercise of rights guaranteed under the IELRA, and failed and refused to bargain in good faith with the Charging Party as the exclusive representative of its professional employees by unilaterally changing employees' job duties (requiring employees to act as security guards during their planning period) without prior notice to or bargaining with the charging party."

Essentially, the Association sought to require the District to rescind a program where teachers were required to occasionally sit during their planning periods in the halls of the school and monitor theentrance to determine the authority of those entering. The Association also requested that the teachers be made whole.

The Association and the District submitted position papers to the Board. On July 3, 1991, the executive director of the Board issued a recommended decision and order which referred the dispute to arbitration because it appeared to involve allegations of both a breach of the parties' collective-bargaining agreement and a violation of section 14(a)(5) of the Act (115 ILCS 5/14(a)(5) (West 1992)), which makes refusal to bargain collectively in good faith when required to do so an unfair labor practice. Section 14(a)(5) of the Act also permits the Board to refer to arbitration charges of unfair labor practices which concern interpretation or application of a collective-bargaining agreement where, as here, the agreement contains a grievance and arbitration procedure.

On February 28, 1992, the parties participated in a hearing before the arbitrator. On May 7, 1992, the arbitrator issued an award denying any grievance under the contract. That document concluded that the limited supervision program imposed on the teachers had only minimal and temporary impact on teachers' planning time and did not violate the contract. The arbitrator concluded that the question of whether the Association had violated the Act was not before him and declined to rule on that question. On December 31, 1992, the executive director of the Board issued a recommended decision and order which would dismiss the unfair labor practice charge. The recommendation was based upon the theory that the arbitration award necessarily determined that the District had no duty to bargain over the imposition of the hall monitoring plan.

At each stage of the proceedings, the Association maintained that a complaint should issue. This included the filing of exceptions to the executive director's recommendation. On July 8, 1993, in a split decision, the Board issued an opinion and order which denied the request for a complaint and dismissed the charge. However, the Board rejected the reasoning of the director that the arbitration award determined the question of whether the District was required under the Act to bargain with the Association as to the imposition of the monitoring program. Rather, the Board concluded that although questions of law or fact may exist as to whether a "technical violation of the Act" occurred, the impact on the Association and its teachers was "de minimis " and the "purposes and policies of the Act" would not be furthered by proceeding to a hearing. (Macomb Community Unit School District #185, 9 Pub. Employee Rep. (Ill.) par. 1095, at IX-332, IX-333, No. 91-CA-0040-S (Illinois ...


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