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12/15/95 SEDOL TEACHERS UNION v. ILLINOIS

December 15, 1995

SEDOL TEACHERS UNION, LAKE COUNTY FEDERATION OF TEACHERS, LOCAL 504, IFT-AFT, AFL-CIO, APPELLANT,
v.
ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD, SPECIAL EDUCATION DISTRICT OF LAKE COUNTY, ILLINOIS AND SEDOL EDUCATORS ASSOCIATION, IEA-NEA, APPELLEES



Petition for Review of an Order of the Illinois Educational Labor Relations Board. IELRB Case Nos. 93-UC-0006-C, 93-RC-0032-C.

Presiding Justice Cousins delivered the opinion of the court: Gordon and T. O'brien, JJ., concur.

The opinion of the court was delivered by: Cousins

PRESIDING JUSTICE COUSINS delivered the opinion of the court:

On May 25, 1993, the petitioner, SEDOL Teachers Union, Local 504, IFT-AFT, AFL-CIO (the Union), filed a petition for unit clarification with the Illinois Educational Labor Relations Board (the Board). The petition sought to add approximately 18 certified employees to the existing unit of employees of the Special Education District of Lake County, Illinois (SEDOL), represented by the Union. The Union sought to add former employees of the Lake-McHenry Regional Program (LMRP). These employees had been historically excluded from the unit represented by the Union on the basis of being "recommended for employment by the Lake-McHenry Regional Board." However, because the LMRP had been dissolved, the Union sought clarification by the Board that the exclusion of LMRP employees was no longer applicable and that former LMRP employees fit within the definition of the SEDOL unit represented by the Union.

On May 18, 1993, respondent, SEDOL Educators Association, IEA-NEA (the Association), filed a representation petition seeking to represent the 18 LMRP employees in a separate unit within SEDOL. The Executive Director of the Board consolidated the cases filed by the Union and the Association. The cases were heard together by an administrative law judge on June 8, 1993. On August 23, 1993, the judge granted the unit clarification petition filed by the Union and dismissed the Association's representation petition. However, the Board reversed the judge's decision. The Board dismissed the unit clarification petition and reinstated the Association's representation petition.

On appeal, petitioner contends that the Board erred in dismissing the unit clarification petition because: (1) positions held by former LMRP employees are newly acquired; (2) exclusion of former LMRP employees is no longer applicable; (3) positions of former LMRP employees fall within categories represented by the Union; and (4) the Board's decision is contrary to the Illinois Educational Labor Relations Act (115 ILCS 5/1 et seq (West 1992)) and inconsistent with important labor principles.

BACKGROUND

The Special Education District of Lake County is a cooperative district organized pursuant to section 10-22.31 of the School Code. (105 ILCS 5/10-22.31 (West 1992).) SEDOL provides various special education services throughout Lake County to children aged 3 to 21. SEDOL consists of 37 member school districts. In addition, there are five individual schools serving specific handicaps for physical disabilities, hearing impaired, elementary school behavior disorder, high school behavior disorder and moderate to severe mentally disabled students. Governance and operation of SEDOL is effected through its governing board and management council.

The Lake-McHenry Regional Program also provided special education services in Lake as well as McHenry Counties and for Waukegan School District No. 60. In 1969, LMRP received Federal funds to provide low incidence early intervention special education services to children aged zero to six. The types of handicaps served by LMRP overlapped with those served by SEDOL. However, SEDOL services children from ages 3 to 21. The purpose of LMRP was to supplement special education services, not to duplicate or supplant them. Like SEDOL, LMRP had its own governing board. In addition to its governing board, LMRP also had an advisory board, whose members were appointed by the SEDOL executive board and whose function was to advise the SEDOL executive board regarding the general operations of LMRP.

The SEDOL Teachers Union represents certified employees of SEDOL, such as classroom and itinerant teachers, speech therapists, prevocational coordinators, social workers, educational diagnosticians, nurses, and psychologists. However, the contract between SEDOL and the Union has historically contained an exclusion from representation of any person recommended for employment by the Lake-McHenry regional board. In 1981, the Union proposed eliminating the exclusion for LMRP employees and including them in the category of employees represented by the Union. SEDOL rejected this proposal, stating that LMRP employees were not employees of SEDOL and SEDOL had no control over them.

In April 1992, LMRP's governing board voted to dissolve the Lake-McHenry Regional Program, effective August 16, 1993, and to offer the services of LMRP through SEDOL. While the dissolution was pending, the Union proposed that the LMRP employees no longer be excluded from the bargaining agreement once LMRP was dissolved and its employees were employed by SEDOL. SEDOL rejected the Union's proposal. SEDOL stated that once the LMRP was dissolved, the exclusion would not be applicable. On May 5, 1992, the Union then withdrew its proposal to eliminate the exclusion.

Since the dissolution of LMRP, former LMRP employees provide multidisciplinary screening and diagnosis/evaluation to unserved and underserved children between the ages of birth and six. Services are offered primarily at the Parent-Infant Center and the Lake Diagnostic Center. SEDOL and LMRP staff do not interact with each other either in the performance of their duties or at in-service or staff meetings. LMRP staff continue to be paid by Federal funds that are now distributed directly to SEDOL rather than LMRP. Because they are paid from Federal funds, the LMRP employees are laid off each year until the funds are reallocated.

On May 15, 1992, the SEDOL Educators Association filed a representation petition, listing SEDOL as the employer, seeking to represent all certified employees of LMRP. The Union intervened seeking to represent the same employees, listing LMRP as employer. However, the Union withdrew its intervention petition. The Board conducted a prehearing consent conference on May 27, 1992. A consent election agreement naming SEDOL as the employer was signed between SEDOL and the Association to hold an election among the employees on June 4, 1992. The Board conducted an election and the employees voted not to be represented.

On May 18, 1993, the Association filed a new representation petition. The petition sought to represent the same employees for which the Association had petitioned in 1992. On May 25, 1993, the Union filed a unit clarification petition, seeking to include LMRP certified employees within its unit.

At a hearing conducted on August 23, 1993, the Union provided testimony to show that a community of interest exists between the employees of LMRP and SEDOL and that this community of interest extends to the functions and duties of the employees, their job descriptions, their certification, and common supervision of the employees. Dr. John Anderson, superintendent of SEDOL, testified that the psychologists at the LMRP have the same certification requirements as SEDOL teachers; however, the population that LMRP employees serve is different due to the fact that they service children aged zero to six. Helen Ullrich, director of ...


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