Petition for Direct Review from the Illinois Educational Labor Relations Board.
Released for Publication August 5, 1997.
The Honorable Justice Zwick delivered the opinion of the court. Greiman, J., and Quinn, J., concur.
The opinion of the court was delivered by: Zwick
The Honorable Justice ZWICK delivered the opinion of the court:
This cause comes before us in a direct appeal from an opinion and order of the Illinois Educational Labor Relations Board (IELRB) which held that the decision previously issued by the administrative law judge (ALJ) was final and binding on the parties.
The stipulated record established that on March 12, 1990, Cecilia Bitner was hired as a teacher by the Board of Education of the City of Chicago (Board of Education). On that date, Bitner commenced the mandatory three-year probationary term prior to attaining tenure. Bitner received a Performance rating of "excellent" for the 1990-91 and 1991-92 school years. On February 3, 1993, approximately five weeks before she would attain tenure, Bitner received an "E-1 Notice" of unsatisfactory performance from the principal of the elementary school where she taught. On March 12, 1993, the three-year probationary term expired, and Bitner became eligible to attain tenure. Bitner received an "E-2 Notice" of unsatisfactory performance on April 4, 1993, based upon her probationary status.
On June 15, 1993, the Chicago Teachers Union filed a grievance on behalf of Bitner, alleging that the Board of Education had violated the collective bargaining agreement which was in force by evaluating Bitner's performance according to the procedures for probationary teachers as opposed to following the procedures for tenured teachers. This grievance was denied by Bitner's principal on June 29, 1993. On August 25, 1993, Bitner's employment was terminated for unsatisfactory performance. The June 15, 1993, grievance was subsequently denied by the General Superintendent of Schools on March 24, 1994.
The Union made a timely demand for arbitration of the grievance on February 9, 1994, and the arbitrator issued a final and binding award on October 12, 1994. In that award, the arbitrator found that the Board of Education had violated the collective bargaining agreement by utilizing the evaluation procedures for probationary employees rather than those for tenured employees. The arbitrator further found that Bitner should be reinstated as a tenured teacher and was entitled to recover all lost wages and benefits. The Board of Education refused to comply with the arbitrator's award, claiming that it was against public policy. On February 24, 1995, the IELRB issued a complaint against the Board of Education, alleging an unfair labor practice based upon the Board of Education's refusal to comply with the final and binding award by the arbitrator. On August 28, 1995, the ALJ for the IELRB issued his recommended decision and order, which found that the refusal to comply with the arbitrator's decision violated sections 14(a)(8) and 14(a)(1) of the Illinois Educational Labor Relations Act. In addition, the ALJ issued an order to show cause why sanctions should not be imposed against the Board of Education for failure to comply with the final and binding award.
This decision was received by the Board of Education on August 30, 1995, and it had until September 20, 1995, to file exceptions thereto. The Board of Education failed to timely file exceptions to the ALJ's decision, but on September 22, 1995, two days after expiration of the filing deadline, the Board of Education requested extension of time to file exceptions. This request was ultimately denied by the IELRB on October 2, 1995.
On September 27, 1995, the Board of Education filed a response to the ALJ's order to show cause regarding imposition of sanctions. On October 27, 1995, the ALJ issued a supplemental decision declining to impose sanctions against Board of Education. On November 21, 1995, the Board of Education filed exceptions which related to the ALJ's original decision. In those exceptions, the Board of Education argued that it objected to the ALJ's decision because it was against the public policy. On May 14, 1996, the IELRB issued its opinion which held that the original decision by the ALJ became final and binding as of September 20, 1995, and the Board of Education has appealed that ruling.
It is established that a party aggrieved by an agency action must pursue all available administrative remedies before seeking judicial review. Phillips v. Graham, 86 Ill. 2d 274, 289, 427 N.E.2d 550, 56 Ill. Dec. 355 (1981). Any argument or objection which was not raised during the pendency of the administrative proceeding is deemed waived and cannot be asserted on judicial review of the agency decision. Department of Central Management Services v. Illinois State Labor Relations Board, 278 Ill. App. 3d 79, 82, 662 N.E.2d 131, 214 Ill. Dec. 777 (1996); Moore v. Illinois State Labor Relations Board, 206 Ill. App. 3d 327, 338-39, 564 N.E.2d 213, 151 Ill. Dec. 236 (1990).
The Illinois Administrative Code specifically provides that a party may file exceptions to an administrative law judge's recommended decision and order no later than 21 days after receipt of the recommended decision; if no exceptions are filed within 21 days after the parties receive the recommended decision and order, the parties will be deemed to have waived their exceptions. 80 Ill. Adm. Code § 1120.50(a) (1994).
The decision of the ALJ was received by the Board of Education on August 30, 1995. In order to preserve the right to challenge this decision, the Board of Education was obligated to file exceptions thereto within 21 days of that date. Thus, it was incumbent upon the Board of Education to file any exceptions to the ALJ's ruling by September 20, 1995, and the failure to do so constituted a waiver of the right to contest the propriety of that decision.
In the exceptions which were ultimately filed on November 21, 1995, the Board of Education sought to avoid compliance with the ALJ's decision on the ground that it was contrary to public policy. However, that assertion was waived because the exceptions were untimely. *fn1 In addition, the Board of Education's request for an extension of time to file exceptions was ...