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03/29/96 MT. VERNON EDUCATION ASSOCIATION v. (NO.

March 29, 1996

MT. VERNON EDUCATION ASSOCIATION, IEA-NEA, PETITIONER,
v.
(NO. 4-95-0094) THE ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD AND MT. VERNON SCHOOL DISTRICT NO. 80, RESPONDENTS. MT. VERNON SCHOOL DISTRICT NO. 80, PETITIONER, V. (NO. 4-95-0135) ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD AND MT. VERNON EDUCATION ASSOCIATION, IEA-NEA, RESPONDENTS.



Administrative Review of Illinois Educational Labor Relations Board. Nos. 93CA0018S, 93CB0002S.

Released for Publication May 6, 1996. As Corrected August 27, 1996.

Honorable James A. Knecht, J., Honorable Robert W. Cook, P.j., Honorable John T. McCULLOUGH, J., Concurring. Justice Knecht delivered the opinion of the court:

The opinion of the court was delivered by: Knecht

The Honorable Justice KNECHT delivered the opinion of the court:

In September 1992, Mt. Vernon School District No. 80 (District) filed an unfair labor practice charge with the Illinois Educational Labor Relations Board (Board) against Mt. Vernon Education Association, IEA-NEA (Association) charging the Association with refusing to bargain in good faith over a mandatory subject of bargaining, a "zipper" clause, in violation of section 14(b)(3) of the Illinois Educational Labor Relations Act (Act) (115 ILCS 5/14(b)(3) (West 1992)). In October 1992, the Association filed an unfair labor practice charge against the District alleging the District insisted to impasse over a nonmandatory subject of bargaining, the same "zipper" clause, and refused to sign a collective-bargaining agreement which excluded the "zipper" clause in violation of sections 14(a)(1), (a)(5) and (a)(6) of the Act. 115 ILCS 5/14(a)(1), (a)(5), (a)(6) (West 1992).

The Executive Director of the Board issued a complaint regarding the District's charge and another regarding the Association's charges under sections 14(a)(1) and (a)(5) but dismissed the charge under section 14(a)(6). The remaining charges were consolidated for hearing before an administrative law judge (ALJ) for the Board. In March 1994, the ALJ found the "zipper" clause to be nonmandatory and dismissed the complaint against the Association while sustaining the complaint against the District. Mt. Vernon School District 80, 10 Pub. Employee Rep. (Ill.) par. 1058, Nos. 93-CA-0018-S, 93-CB-0002-S (Illinois Educational Labor Relations Board, ALJ's recommended decision, March 17, 1994). The District filed exception to the ALJ's conclusions of law.

In January 1995, the Board issued an opinion and order affirming in part and reversing in part the ALJ. Mt. Vernon School District No. 80, 11 Pub. Employee Rep. (Ill.) par. 1013, Nos. 93-CA-0018-S, 93-CB-0002-S (Illinois Educational Labor Relations Board, January 6, 1995) (hereinafter 11 Pub. Employee Rep. (Ill.) par. 1013). The Board held "broad" zipper clauses are permissive subjects of bargaining but the zipper clause involved in this case is a "narrow" zipper clause and, therefore, was a mandatory subject of bargaining. Accordingly, the Board found the District had not violated the Act and dismissed the complaint in No. 93-CA-0018-S in its entirety; it also found the Association had violated section 14(b)(3) of the Act, reversing the ALJ and reinstating the complaint in No. 93-CB-002-S. Both the Association (No. 4-95-0094) and the District (No. 4-95-0135) filed petitions for review with this court. The cases were consolidated on appeal by order of court.

Before we address the issues presented, it would be helpful to discuss the purpose of a zipper clause. A zipper clause "seeks to close out bargaining during the contract term and to make the written contract the exclusive statement of the parties['] rights and obligations." National Labor Relations Board v. Tomco Communications, Inc., 567 F.2d 871, 879 (9th Cir. 1978). The parties to a written contract typically want the writing to be the exclusive statement of what they have agreed to. A zipper clause conveys the message that this agreement contains the complete understanding of the parties. It zips up and closes their negotiations and announces there is no more to bargain about until next time.

Narrow zipper clauses waive the right to bargain over issues actually negotiated by the parties. Broad zipper clauses use specific language to foreclose bargaining on any issue not included in the contract even if the issue was unknown or not within the contemplation of the parties at the time the contract was signed.

The basic issue presented by these consolidated cases is whether the Board properly found the zipper clause at issue to be a "narrow" clause and, therefore, a mandatory subject of bargaining. Along with this issue the parties have raised several other issues, including whether the Board's ruling should be accorded deference by this court; whether the Board erred in ruling on "broad" zipper clauses when the clause before it was a "narrow" clause; whether the Board erred in ruling "broad" zipper clauses were merely a permissive subject of bargaining; and, even if the zipper clause at issue here was a mandatory subject of bargaining, whether the Association engaged in an unfair labor practice by insisting to impasse the clause not be included in the parties' collective-bargaining agreement.

We find the Board's ruling should be accorded deference. Further, it was necessary for the Board to discuss broad zipper clauses and it correctly ruled they were a permissive subject of bargaining. We affirm the order of the Board finding the zipper clause at issue here to be a narrow clause and a mandatory subject of bargaining and finding the Association engaged in an unfair labor practice.

The facts are not disputed. Prior to 1988 the collective-bargaining agreements between the Association and the District contained the following provision:

"Content of Agreement

The terms and conditions set forth in this Agreement represent the full and complete understanding and commitment between the Board and the Association. Both parties acknowledge that during the negotiations which resulted in this Agreement, each had the unlimited right and opportunity to make demands and proposals upon the other party. All understanding and agreements arrived at after the exercise of this right and opportunity are set forth in this Agreement. Subject matters not referred to in this Agreement or statutes applicable to matters covered by this Agreement shall not be considered as part of the Agreement and remain exclusive Board and/or Administration prerogatives."

During negotiations for the successor to the 1986 through 1988 bargaining agreement, the District proposed the insertion of the following "zipper" clause prior to the last sentence of the content-of-agreement section of the contract:

"The parties each voluntarily and unqualifiedly waive any rights which might otherwise exist under law to negotiate over any matter during the term of this Agreement, and each agrees that the other shall not be obligated to ...


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