Board of Educ., LeRoy Community Unit School Dist. No. 2 v. Illinois Educational Labor Relations Bd.
| Citation | 199 Ill.App.3d 347,556 N.E.2d 857,145 Ill.Dec. 239 |
| Decision Date | 28 June 1990 |
| Docket Number | IEA-NE,No. 4-89-0588,R,4-89-0588 |
| Parties | , 145 Ill.Dec. 239, 61 Ed. Law Rep. 1035 The BOARD OF EDUCATION, LeROY COMMUNITY UNIT SCHOOL DISTRICT NO. 2, Petitioner, v. The ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD and LeRoy Education Association,espondents. |
| Court | United States Appellate Court of Illinois |
John T. Taylor and Merry C. Rhoades, Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., Decatur, for petitioner.
Christopher T. Hexter, Schuchat, Cook & Werner, St. Louis, Mo., and Sandra Holman, Associate Gen. Counsel, Illinois Educ. Ass'n-NEA, Springfield, for LeRoy Educ. Ass'n.
Neil F. Hartigan, Atty. Gen., Chicago, Robert J. Ruiz, Sol. Gen., William D. Frazier and Rosalyn B. Kaplan, Asst. Attys. Gen., for respondents.
In an effort to improve the quality of education in the State, the legislature amended the School Code providing for evaluations of elementary and secondary public school teachers. (Ill.Rev.Stat.1987, ch. 122, par. 24A-1 et seq.) The amendment also provided for a remediation plan. (Ill.Rev.Stat.1987, ch. 122, par. 24A-5.) The primary question posed by this appeal is to what extent the evaluation plans are subjects of mandatory collective bargaining. Ill.Rev.Stat.1987, ch. 48, par. 1701 et seq.
The Board of Education of LeRoy Community School District No. 2 (District) appeals a finding that it committed an unfair labor practice by failing to bargain over a teacher evaluation plan. The Illinois Educational Labor Relations Board (IELRB) found the District had violated sections 14(a)(5) and (a)(1) of the Illinois Educational Labor Relations Act (Act) (Ill.Rev.Stat.1985, ch. 48, pars. 1714(a)(5), (a)(1)) by failing to bargain over the content of a teacher evaluation plan. Leroy Community Unit School District 2, 5 Pub. Employee Rep. (Ill.) par. 1131, No. 88-CA-0031-S (Illinois Educational Labor Relations Board, June 23, 1989).
The District argues the IELRB erred in determining (1) teacher evaluation plans are a mandatory subject of collective bargaining; (2) the LeRoy Education Association (LEA) had not waived further negotiation of teacher evaluation plans by including the topic in the collective-bargaining agreement; (3) the zipper clause did not preclude midterm bargaining over the issue; and (4) the LEA made a formal demand to bargain.
We affirm in part, reverse in part, and remand.
The IELRB filed a cross-petition for enforcement of its order. On January 8, 1990, this court ordered the cross-petition taken with the case and instructed the parties to further brief the issue. For reasons which we will discuss fully later in this disposition, we deny the cross-petition.
I. FACTUAL BACKGROUND
The facts will be recounted only as necessary for an understanding of the disposition.
The LEA represents the LeRoy Community Unit School District No. 2 certified personnel. It had entered two collective-bargaining agreements with the District. The 1985 through 1987 agreement expired on June 30, 1988. The 1987 through 1989 agreement started on July 1, 1989. The 1985 through 1987 agreement contained a provision dealing with employee evaluations.
Florence Heavilin, a teacher for the District, testified the LEA formed a committee to negotiate teacher evaluation plans in direct response to the amendment to the School Code. She was spokesperson for the LEA committee. Sharon Tuchek, Shirley Chancellor, Jenilee Thompson, and Patricia Schultz were committee members. On May 29, 1986, the LEA sent a formal request to bargain the "decisions and effects" of teacher evaluation plans in light of the amendment to the School Code. In September 1986, Heavilin spoke to Crump about joint meetings to discuss proposed evaluation plans. On September 15, 1987, the LEA received the District's first proposed plan. Heavilin testified Crump directed the LEA to return a counterproposal at the October 1986 school board meeting. Heavilin attended the meeting and received an extension of time.
Kenneth Erickson, a school board member, stated he and Heavilin had a one-to-one discussion at the October 6, 1986, meeting. He told Heavilin the Board of Education did not consider the discussions about teacher evaluation plans to be negotiations, negotiations would have to occur at the bargaining table, and all the school board wanted was "input" from the teachers. Erickson did not remember whether Heavilin told him the LEA had received the District's proposal. The District had given the LEA a proposal but only wanted its "input" not a counterproposal at the October 6, 1986, meeting. The "input" would consist of a written statement from the LEA which would be considered by the District's teacher evaluation committee.
Heavilin testified no one on her committee had ever been told the meetings were for input only. They were not told the meetings were not considered negotiations.
The September 1986 plan submitted by the District contained a definition-of-terms section; job descriptions for the teachers, librarians, counselors, and the dean of students; performance criteria; a rating system; and a remediation plan that paralleled the School Code. In December 1986, the LEA presented its plan. The LEA's counterproposal added sections on the philosophy and purpose of evaluations, and general information about the process. Additionally, the LEA proposal changed some of the job descriptions, changed performance criteria, and adjusted the rating system. It also included a more detailed remediation plan. The LEA counterproposal required reasons for stated strengths and weaknesses, dropped the rating "below average," and stated how the rating of superior should be determined.
In March 1987, the District's committee gave the LEA committee a second evaluation proposal. The two committees set up a joint meeting schedule. The District's second proposal did not add all the sections the LEA wanted added. However, the definition-of-terms section was modified, "below average" was deleted, and the rating system was changed. This was consistent with the LEA counterproposal. The proposal also deleted the remediation plan and eliminated the examples in the job description categories. The District's teacher evaluation committee consisted of: superintendent Crump, Gary Golden, Jean Strum, Jim Dunnan, and Mike Company.
On April 1, 1987, the LEA and District committees held their first joint session. At the meeting, Golden handed out a memorandum, which stated the purpose of the meetings and noted the parties could collectively define district standards. Golden, a member of the Board of Education and chairman of the District's evaluation committee, stated he told the committee members at each meeting that the discussions were only advisory. Heavilin testified she could not recall Golden ever saying the meetings were advisory only.
On April 9, 1987, the committees held their first substantive discussion. They discussed the differences and noted similarities in the District's second proposal and the LEA's counterproposal. They reached a full agreement about the definition-of-terms section. Golden initialed those pages on the LEA counterproposal with which he agreed. The next full meeting took place on May 14, 1987. The committees discussed items not previously discussed in connection with teacher evaluations and "hashed out" disagreements. On May 26, 1987, both committees met for the third time. The committees attempted to complete discussion of outstanding issues, which included the rating system and remediation plan. The next full meeting occurred on June 4, 1987. The committees again discussed the rating system. The LEA committee tried to discuss the remediation plan. The District's committee said it would follow the School Code. Heavilin asked the District to have Brian Braun, its attorney, review the LEA remediation proposal. The District's committee indicated it would have Braun review the LEA's plan. On June 4, 1987, the District's committee members stated it would present the plan as it had taken shape to the school board at the June meeting. The LEA committee members stated the plan was not complete. The plan was not presented to the Board of Education at its June meeting.
A fifth full meeting of both committees occurred on July 14, 1987. The committees discussed incomplete items. The LEA committee asked about Braun's comments on its remediation plan. The District's committee stated it had not received a response from Braun. Heavilin testified that after the committees started working July 14, 1987, Golden stated the District's committee was finished. Crump stated the District would have an evaluation plan for the LEA committee to review on July 20, 1987. Crump stated he wanted the LEA committee to check the plan before he sent it to the District's attorney. The LEA committee members requested further negotiations.
On July 27, 1987, Crump gave Heavilin a draft proposal which was essentially the composite proposal which both committees had agreed to on April 9, 1987.
On September 1, 1987, the LEA committee received a revised evaluation plan with comments from Braun. A joint meeting was scheduled for September 10, 1987, to discuss the revisions. The September 1, 1987, plan changed the definition-of-terms section, which had been previously agreed upon. It added back the "below average" rating, which the committees had deleted on April 9, 1987. The revised plan also included evaluating teachers based upon extracurricular activities, which had not been the subject of evaluation prior to September 1, 1987. The position of dean of students was eliminated from the evaluation procedure. Also, while ratings were tied to "direct observation" prior to the September 1, 1987, revision, the word "direct" was deleted from the September 1,...
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