Board of Educ. of Du Page High School Dist. No. 88 v. Illinois Educational Labor Relations Bd.

• Decision Date: 29 December 1992
• Docket Number: No. 1-91-2801,1-91-2801
• Citation: 187 Ill.Dec. 333,246 Ill.App.3d 967,617 N.E.2d 790
• Parties: , 187 Ill.Dec. 333, 144 L.R.R.M. (BNA) 2604, 84 Ed. Law Rep. 1105 BOARD OF EDUCATION OF DU PAGE HIGH SCHOOL DISTRICT NO. 88, Petitioner, v. ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD and District 88 Council, Local 571, IFT/AFT, Respondents.
• Court: United States Appellate Court of Illinois

Page 790

617 N.E.2d 790

246 Ill.App.3d 967, 187 Ill.Dec. 333,

144 L.R.R.M. (BNA) 2604,

84 Ed. Law Rep. 1105

BOARD OF EDUCATION OF DU PAGE HIGH SCHOOL DISTRICT NO. 88, Petitioner, v. ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD and District 88 Council, Local 571, IFT/AFT, Respondents.

No. 1-91-2801.

Appellate Court of Illinois First District, Second Division.

Dec. 29, 1992.

April 27, 1993.

As Modified on Denial of Rehearing.

Scariano, Kula, Ellch and Himes, Chtd., Chicago (Justino D. Petrarac, Raymond A. Hauser and Lisa A. Papacz, of counsel), for petitioner.

Haggerty, Koenig & Hill, Chtd., Chicago (Kathrin A. Koenig, of counsel), Roland W. Burris, Atty. Gen., Rosalyn B. Kaplan, Sol.Gen., Susan Frederick Rhodes, Asst. Atty. Gen., for respondents.

MODIFIED ON DENIAL OF REHEARING

Justice DiVITO delivered the opinion of the court:

Respondent District 88 Council, Local 571 (the Union), filed a charge with respondent Illinois Educational Labor Relations Board (IELRB), alleging that petitioner Board of Education of Du Page High School District No. 88 (the District) committed an unfair labor practice by refusing to comply with an arbitrator's decision that a grievance arising from the applicable teacher evaluation plan (the Plan) was arbitrable and that arbitration on the merits should follow, in violation of sections 14(a)(1), 14(a)(5), and 14(a)(8) of the Illinois Educational Labor Relations Act (the Act) (Ill.Rev.Stat.1987, ch. 48, pars. 1714(a)(1), 1714(a)(5), 1714(a)(8)). The District in turn filed a charge against the Union for insisting on arbitrating an inarbitrable issue, in violation of section 14(b)(3) of the Act (Ill.Rev.Stat.1987, ch. 48, par. 1714(b)(3)). The IELRB determined that the District had violated the Act, holding that the grievance was arbitrable because the Plan had been collectively bargained or, alternatively, because the grievance concerned a dispute about a violation of a provision in the 1985-88 collective bargaining agreement (the 1985-88 Agreement). For the reasons that follow, we reverse.

The administration of Addison Trail High School issued an "unsatisfactory" evaluation for one of the Union's members at the end of the 1987-88 school year. In response, the Union filed a grievance on the employee's behalf, based on violations of the 1985-88 Agreement and the parties' "understanding and agreement" concerning the Plan. ¹ The Union also alleged that the conduct of the school administrators "violate[d] the spirit if not the letter of the [Plan's] process." The Union asked that the unsatisfactory rating be removed.

After a hearing, the principal denied the grievance, stating that it "d[id] not identify a violation of the contract. The substance of an evaluation is not grievable under any provision of the [1985-88 Agreement]." The Union appealed, maintaining that the violation of the 1985-88 Agreement was that the employee "was not judged fairly and * * * there were numerous violations of the Teacher Evaluation Procedure" of the Plan, in violation of Article III.4 of the 1985-88 Agreement. ² The Union asserted that "this evaluation [was] most reprehensible in its shoddy preparation and basic denial of due process procedural rights * * *." The Union also challenged the District's view that the substance of the evaluation was not grievable, stating that the Plan had been collectively bargained and thus was grievable as "an adjunct part of the [1985-88 Agreement]." It warned that the District's stonewalling could be construed as an unfair labor practice.

After a hearing at the next level, the District's superintendent denied the grievance "for the basic reason that the grievance does not identify a violation of the [1985-88 Agreement]." While maintaining that the Plan had not been collectively bargained and that thus a dispute arising therefrom was not grievable, the superintendent nevertheless addressed the merits of the grievance, finding that the evaluation had been conducted within the Plan's guidelines. He also decided that the Union's inability to convince the District to include the Plan in the subsequent collective bargaining agreement (the 1988-1990 Agreement), coupled with its not having filed an unfair labor practice charge against the District for its refusal to include the Plan in the 1988-90 Agreement, constituted waiver.

The Union again appealed; after a hearing, the District concurred in the denial of the grievance for the same reasons given by the superintendent. The Union then demanded arbitration. After an arbitrator had been mutually selected, the District refused to stipulate to the arbitrator's jurisdiction and authority to render an award, based on its position that the grievance was not arbitrable. The Union framed the issue for the arbitrator as "whether the [District] violated the parties['] agreement by it's [sic ] failure to fairly and correctly administer the procedures of the * * * Plan relative to" the employee's evaluation. Subject to the grievability challenge, the District agreed to submit the issue to the arbitrator.

At the first hearing before the arbitrator in December 1988, the employee testified about the documents and procedure used in his evaluation; the only other witness, Roberta Hollister, the current chief negotiator for the Union, testified about the process by which the Plan evolved. The Union rested its case as to the Article III.4 violation. The next hearing did not occur until May 2, 1989. The stipulated facts state that this five-month hiatus was by agreement.

Meanwhile, in April 1989, the District moved to dismiss the arbitration on the ground that the grievance was not arbitrable because the Plan had not been collectively bargained. The arbitrator took the motion under advisement, bifurcated the arbitration, and heard witnesses on this question alone. At this hearing, the testimony concerned only the process by which the Plan had been developed. Witnesses included the Union president at the relevant time; two members of the Union's team to develop the Plan, including the former chief negotiator for the Union, who headed the Union team; and an assistant superintendent, who was part of the administration's team in developing the Plan. ³ The arbitrator asked the parties to submit post-hearing briefs by July 31, 1989. The Union did not file its brief until November 1989, but the District made no contemporaneous objection to the Union's untimeliness.

The months passed. In April 1990, the arbitrator asked the parties to brief the effect of two recent IELRB decisions. In submitting its brief, the District stated that it was reserving its right to object to the delay. On April 18, 1990, a few days after the submission of the briefs, the arbitrator ruled that the grievance was arbitrable because the Plan had been collectively bargained, and he ordered the parties to continue the arbitration on its merits.

Shortly thereafter, on May 8, 1990, the Union demanded that the District comply with the arbitrator's decision and commence arbitration on the merits of the grievance. The District refused, claiming that the arbitrator's decision was incorrect as a matter of law, that the cases on which the arbitrator rested his decision were distinguishable, and that the delay in the arbitrator's ruling violated the timeliness requirements of the Voluntary Arbitration Rules of the American Arbitration Association (the AAA). The Union's charge that gives rise to this appeal followed. The District responded with a charge of its own, the mirror image of the Union's, asserting that the Union's demand to arbitrate an inarbitrable issue was an unfair labor practice. The charges were consolidated, and the parties filed a stipulated record containing the submissions to and from the arbitrator.

The IELRB hearing officer ruled for the Union in a 44-page written opinion containing findings of fact and law. She began by noting that the arbitrability question required a two-step analysis: was the Plan bargained and if so, had the Union nevertheless waived arbitration of disputes concerning it. She found that the Plan had been the product of "the give-and-take typical of labor negotiations in a committee setting" and thus was a collectively bargained agreement. She then rejected the District's argument that the Union had waived its right to arbitrate grievances arising from the Plan. Because the Plan had been collectively bargained and waiver had not occurred, she concluded, the grievance was subject to arbitration. Alternatively, the hearing officer determined that the grievance was also arbitrable as a dispute concerning violation of Article III.4 of the 1985-88 Agreement. The hearing officer also rebuffed the District's contention that the time lapse between the hearings and the arbitrator's final decision was so long as to render his decision invalid.

The District filed exceptions, but the IELRB affirmed for the reasons given in the hearing officer's recommended decision, with certain modifications not relevant here. It agreed that the Plan had been collectively bargained, that the IELRB could consider grounds for arbitrability other than that upon which the arbitrator had relied, and that the Union had not waived the right to arbitrate grievances with regard to the Plan. It concluded that the grievance therefore was arbitrable, so the District's refusal to comply with the arbitrator's award concerning substantive arbitrability constituted an unfair labor practice in violation of sections 14(a)(1) and 14(a)(8) of the Act (Ill.Rev.Stat.1987, ch. 48, pars. 1714(a)(1), 1714(a)(8)). ⁴ This appeal followed.

I.

Review of an IELRB decision on an unfair labor practice charge must be sought in the appellate court rather than in the circuit court. (Ill.Rev.Stat.1991, ch. 48, par. 1716(a).) In such cases, Supreme Court Rule 335(h) (134 Ill.2d R. 335(h)) states that certain provisions of the Administrative Review Law (Ill.Rev.Stat.1991, ch. 110, par. 3-101...