The opinion of the court was delivered by: Justice Cook
Administrative Educational No. 94-CB-0009-S
On August 28, 1997, the Illinois Educational Labor Relations Board (IELRB) issued an opinion and order finding that petitioner Paxton-Buckley-Loda Education Association, IEA-NEA (Association), violated section 14(b)(1) of the Illinois Educational Labor Relations Act (Act) (115 ILCS 5/14(b)(1) (West 1996). Paxton-Buckley-Loda Education Ass'n, 13 Pub. Employee Rep. (Ill.) par. 1114, No. 94-CB-0009-S (Illinois Educational Labor Relations Board, August 28, 1997) (hereafter 13 Pub. Employee Rep. (Ill.) par. 1114). The Association appeals the IELRB's finding that it violated section 14(b)(1) of the Act as well as the IELRB's remedial order. We affirm.
Beth Nuss and Kimberly Kinley are employed by the Paxton-Buckley-Loda Community Unit School District No. 10 (District) as band directors. The Association is the exclusive bargaining representative for the District's certified employees, including Nuss and Kinley.
In early 1993, the Association and the District negotiated a new collective-bargaining agreement for 1993-96. Nuss and Kinley had previously received per diem pay for summer band work (not mentioned in previous contracts), but Association president John Overstreet and other members of the Association's negotiating team concluded such pay was too high in comparison to other "extra-duty" positions, such as coaching and sponsoring student clubs. The negotiating team, which had no information regarding the time Nuss and Kinley spent on summer band work, submitted a proposed agreement that added summer band as an extra-duty assignment at a pay rate approximately $1,000 less annually per teacher than the per diem rate.
Tentative agreement was reached on the proposed agreement on July 1, 1993. On July 6, 1993, Overstreet told Kinley for the first time that they had "to make a small pay cut" for Nuss and Kinley by reclassifying summer band as an extra-duty assignment; the cuts were "approximately a few hundred dollars" and "just something that needed to be done." Overstreet told Kinley that the reclassification had arisen at the end of negotiations and was a necessary concession for contract settlement. Overstreet allegedly stated that he put in more time in football than Nuss and Kinley put in for the entire year. Overstreet denied making that statement but he admitted he knew the pay cut would be approximately $1,000, and he did not relay that information to Nuss and Kinley.
Nuss and Kinley determined they would each lose up to $1,000 per year and, on July 10, 1993, met with Mike Short, president of the school board, and with the district's superintendent. Short stated the pay cut had been represented to him as "small," around "a few hundred dollars." Short told Nuss and Kinley he could not negotiate with them as individual employees, that they had to resolve the matter through the Association, that the Association had recommended the reclassification in its first proposal, and that the District planned to ratify the agreement.Nuss and Kinley then met with Gene Vanderport, UniServe Director for the Illinois Education Association, an hour before the Association's vote on ratification. Vanderport told them that he was not aware of the size of the pay cut and that it was wrong of the Association not to inform them of the reclassification. However, he asked them not to raise the issue at the ratification meeting and told them he would arrange a meeting with the negotiating team about reopening the summer band compensation issue. In August, sometime after Nuss and Kinley met with the negotiating team, Vanderport sent a letter on behalf of the Association to the District asking that negotiations be reopened. The District declined to do so.
On August 15, 1993, Nuss and Kinley received their first checks for summer band work, reflecting amounts calculated at the per diem rate. Nuss and Kinley contacted Marlene Stalter, bookkeeper for the District, expressing concern that they had been overpaid. Stalter told Nuss and Kinley that the new salary did not start until September, that new payroll practices always started on September 1, and no one had told her to pay Nuss and Kinley any differently.
In September, the District again refused to reopen negotiations, but in December there was a meeting between Thomas Miller (the District's attorney), Vanderport, and counsel for Nuss and Kinley. As a result of the meeting an amendment was proposed under which summer band would remain on the extra-duty list, but the percentage of base salary paid for that work would be increased to approximate the per diem rate. According to Short, the District believed it had an agreement, subject only to the Association and the District signing it.
Overstreet reported to Nuss and Kinley that an agreement had been reached, subject to negotiation team review and ratification by the Association. He suggested they would probably want ratification as soon as possible, so they could get their back pay for summer 1993. When Nuss and Kinley replied they had received per diem pay for summer 1993, that the pay cuts were not to start until September, Overstreet immediately ended the conversation and called Stalter regarding how she paid Nuss and Kinley for summer band 1993. Overstreet told Vanderport that he considered the payments "illegal" and believed Nuss and Kinley had "deceived" them. In late December 1993 or early January 1994, the Association decided not to pursue the amendment to the agreement that Vanderport had worked out with Miller. The Association presented the District with a counterproposal agreeing to abide by the original agreement, but providing that Nuss and Kinley would not be required to return the "illegal payment" they had received. The District, in a January 12, 1994, letter, refused to sign the counterproposal and stated it would do nothing further since the dispute was between the Association and two of its members. That letter was the first indication to Nuss and Kinley that the Association had changed its position.
In a March 17, 1994, newsletter to Association members, Overstreet wrote that the request to reopen negotiations had been dropped when the negotiating team discovered "several facts had been misrepresented," that the District "incorrectly" paid and the "band teachers incorrectly accepted *** [the] illegal [payment] *** in August 1993."
"The facts are that the two teachers did receive the money this year, illegally, and when the board and press was told that they had lost money this year that was not the facts [sic]. Upon discovering this in December, the Association felt that because of thisdeception we could not in good faith continue negotiations."
On June 30, 1995, Nuss and Kinley filed a complaint with the IELRB alleging that the Association was guilty of an unfair labor practice because of its intentional misconduct in representing employees, in violation of section 14(b)(1). The administrative law Judge (ALJ) issued a recommended decision and order on September 11, 1996, concluding that the Association had violated section 14(b)(1) by reneging on its promise to Nuss and Kinley that it would reopen the agreement. Paxton-Buckley-Loda Education Ass'n, 12 Pub. Employee Rep. (Ill.) par. 1075, No. 94-CB-0009-S (Illinois Educational Labor Relations Board, Hearing Officer's Recommended Decision and Order, September 11, 1996). The ALJ found much of Overstreet's testimony unreliable due to his demeanor and numerous inconsistencies.
The Association filed exceptions, but on August 28, 1997, the IELRB adopted the ALJ's findings of fact as supplemented and affirmed the ALJ's decision on the merits. 13 Pub. Employee Rep. (Ill.) par. 1114. The IELRB concluded that the Association and the District had entered into a tentative agreement on December 6, 1993, to restore Nuss and Kinley to their previous level of pay, and the Association failed to submit that agreement to ratification and execution because of personal hostility by Overstreet toward Nuss and Kinley and that such personal hostility caused Overstreet to misrepresent and selectively disclose information about Nuss and Kinley's 1993 band stipend. The IELRB concluded that Overstreet knew the circumstances under which Nuss and Kinley received the per diem rate for their summer 1993 band work, but never communicated this information to Vanderport or the Association negotiation team. The IELRB found no evidence that Nuss or Kinley or anyone on their behalf had misrepresented any facts to the District, to the Board, or to the press. The IELRB concluded Nuss and Kinley were entitled to the value of the agreement tentatively reached between the District and the Association on December 6, 1993. The IELRB also ordered that a copy of its opinion and order be sent by mail to all members of the Association, that the Association cease and desist from restraining or coercing employees in the exercise of rights guaranteed under the Act, and that its order be posted. The IELRB refused, however, to extend the increased level of pay to the 1996-99 collective-bargaining agreement later negotiated by the Association.
The IELRB specifically found that the following Association actions did not constitute a violation of its duty of fair representation within the meaning of section 14(b)(1) of the Act: (1) the Association's initial decision to include summer band in the contract with the resulting loss in salary to Nuss and Kinley; (2) the Association's failure to communicate with Nuss and Kinley about the original reclassification proposal prior to the January 10 meeting; and (3) the Association's initial ...