Board of Governors of State Colleges and Universities on Behalf of Northeastern Illinois University (BOG) v. Illinois Educational Labor Relations Bd.
| Decision Date | 09 June 1988 |
| Docket Number | AFL-CI,R,No. 4-87-0486,4-87-0486 |
| Citation | 170 Ill.App.3d 463,120 Ill.Dec. 728,524 N.E.2d 758 |
| Parties | , 120 Ill.Dec. 728, 47 Ed. Law Rep. 619 BOARD OF GOVERNORS OF STATE COLLEGES AND UNIVERSITIES on Behalf of NORTHEASTERN ILLINOIS UNIVERSITY (BOG), Petitioner, v. ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD and American Federation of State, County and Municipal Employees, Council 31 and Local 1989,espondents. |
| Court | United States Appellate Court of Illinois |
Edward B. Miller, Kenneth R. Dolin, Pope, Ballard, Shepard & Fowle, Ltd., Chicago, Mark T. Dunn, Dunn, Goebel, Ulbrich Morel & Hundman, Bloomington, for petitioner.
Gilbert Feldman, Cornfield and Feldman, Chicago, for AFSCME Council 31.
Neil F. Hartigan, Atty. Gen., Chicago, Shawn W. Denney, Sol. Gen., William D. Frazier, Asst. Atty. Gen., for respondents.
Richard J. Coffee, II, Bd. of Regents, Springfield, amicus curiae, for Bd. of Regents of the Regency Universities System.
Seyfarth, Shaw, Fairweather & Geraldson, Chicago, amicus curiae, for Southern Illinois University.
Gregory J. Malovance, Winston & Strawn, Chicago, amicus curiae, for Illinois Educ. Assn.--NEA.
The Board of Governors of State Colleges and Universities on behalf of Northeastern Illinois University (BOG) appeals a finding of the Illinois Educational Labor Relations Board (Board). The Board found the BOG had committed an unfair labor practice by refusing to process a grievance over an employee discharge. (Ill.Rev.Stat.1985, ch. 48, par. 1714(a)(1), (a)(5).) The BOG argues: the Board erred in concluding the bargaining agreement provides for binding arbitration; the Board erred as a matter of law in finding discharge disputes were grievable; principles of res judicata require deference be given to the decision of the Merit Board of the State Universities Civil Service System (Merit Board) (Ill.Rev.Stat.1985, ch. 24 1/2, par. 38b3); and the remedial order in the instant case was inappropriate.
We affirm in part and vacate in part.
On February 21, 1985, Northeastern Illinois University filed charges for the discharge of Shellie Brown. On February 28, 1985, Brown filed a Step III grievance. On March 1, 1985, Northeastern Illinois University returned the grievance to Brown, informing her that her only option was to appeal her discharge through the Merit Board. On March 1, 1985, Brown sent a letter to the Merit Board requesting a hearing to contest her discharge.
On March 22, 1985, and April 19, 1985, a hearing was held pursuant to the State University Civil Service System. The hearing officer's report of the March 22 hearing states in part:
The hearing officer for the Merit Board found the university had shown cause for discharge in that Brown either misappropriated or was negligent in accounting for three tuition payments made by students. The hearing officer noted that neither Brown nor her counsel presented evidence and Brown's counsel stated he thought the grievance procedure should be exercised prior to the civil service procedure.
On March 25, 1985, the American Federation of State, County and Municipal Employees (AFSCME), Brown's collective bargaining representative, filed an unfair labor practice charge against the BOG pursuant to section 14 of the Illinois Educational Labor Relations Act (Act) (Ill.Rev.Stat.1985, ch. 48, par. 1714(a)(1), (a)(5) ). A complaint issued on June 11, 1985. An amended complaint issued on June 13, 1985. The amended complaint alleged the BOG had committed an unfair labor practice by refusing to process Brown's grievance. Therefore, the BOG failed to bargain in good faith. Ill.Rev.Stat.1985, ch. 48, par. 1714(a)(1), (a)(5).
On August 21, 1985, a hearing on the unfair labor practice charge was held. The parties submitted a copy of the collective bargaining agreement. Article VI provides:
"Section 1. Grievance
A. A grievance is defined as any difference, complaint or dispute between the Employer and the Union or any employee regarding the application, meaning or interpretation of this Agreement.
B. Grievances may be processed by the Union on behalf of an employee or on behalf of a group of employees or itself."
The agreement also states that either the employer or union may refer an unresolved grievance to arbitration. The decision of the arbitrator shall be final and binding on the parties. Article XI provides:
"Section 1. Definition
The Employer agrees with the tenets of progressive and corrective discipline. Disciplinary action or measures shall include only the following:
a) Oral Reprimand;
b) Written Reprimand;
c) Suspension (notice to be given in writing); and
d) Discharge (notice to be given in writing).
Disciplinary action may be imposed upon an employee only for just cause."
Article XXIII provides:
"AUTHORITY OF THE CONTRACT
* * *
* * *
This Agreement shall be considered to incorporate, except as otherwise provided herein, the Rules and Regulations of the State Universities Civil Service System of Illinois; the Rules and Regulations of the State Universities Retirements System; and the Civil Service Employee Regulations of the Board of Governors of State Colleges and Universities."
Alan Joel Schunk, employee relations coordinator for the BOG, testified that he participated in negotiating the instant contract. The definition of grievance was extensively discussed by the negotiating teams. AFSCME initially proposed a definition of grievance which would include disputes arising out of the agreement and other circumstances of employment. The BOG rejected the proposal as it wanted to limit grievances to applications and interpretations of the agreement. On October 13, 1983, an AFSCME negotiator stated AFSCME wanted to be able to grieve civil service rules, regulations, and policies. Schunk told AFSCME there was no agreement on this issue.
The BOG made a counterproposal of an informal complaint system. A complaint would not be considered a grievance and would thus not be arbitrable. AFSCME rejected the proposal immediately. AFSCME then submitted a proposal which included additional language talking about Federal and State laws. Schunk stated this definition was narrower than the previous one; however, the BOG rejected it. An AFSCME proposal which stated the agreement would supersede other laws was also rejected. A grievance definition offered by AFSCME which included civil service rules was also rejected.
Schunk stated that he proposed incorporating the rules and regulations of the civil service system into the agreement in the authority to contract section. Therefore, the broad definition of grievance could be dropped. The union agreed and withdrew its previous definition of a grievance.
Schunk further stated that the negotiators did not discuss discharge procedures either in connection with the grievance procedure or in connection with civil service rules. AFSCME did not propose procedures for reviewing discharges. No AFSCME representative stated that he understood discharge for cause would be grievable. Schunk believed incorporating the rules of the civil service commission would allow an employee to grieve the application of a rule but not its content.
On cross-examination, Schunk stated that the scope of the arbitration and the scope of the grievance clause could be different. Restricting arbitration is in management's interest because of a lack of control over the arbitrator. In the instant case, Schunk believed both sides felt the arbitration clause was as broad as the grievance clause. When he agreed to the just cause provision in article XI, Schunk knew that many of the provisions supplemented civil service rules. He did not understand that article XI would supplement civil service rules with respect to reviewing discharges. Schunk stated that he understood that all other forms of discipline were subject to the grievance procedure and ultimately to arbitration.
The hearing officer found the BOG and AFSCME had contractually agreed to arbitrate discharges, that the provision was valid and enforceable under the Act as supplementing an employee's rights, and concluded the BOG had violated sections 14(a)(1) and 14(a)(5) of the Act. She recommended the Board order the BOG to process Brown's grievance pursuant to the collective bargaining agreement, despite the time factors. Board of Governors, 2 Pub.Employee Rep. (Ill.) par. 1102, case No. 85-CA-0027-C (Illinois Educational Labor Relations Act, Aug. 14, 1986 (hearing officer) ).
On June 23, 1987, the Board adopted the hearing officer's recommended order. It based its decision on the language of the agreement, the presumption of arbitrability, and its interpretation of the relevant statutes. Board of Governors, 3 Pub.Employee Rep. (Ill.) par. 1075, case No. 85-CA-0027-C (Illinois Educational Labor Relations Board, June 17, 1987).
Initially, the BOG argues the Board erred in finding the language of the bargaining agreement provided for the arbitration of employee discharges. The BOG notes the contract provides an alternative forum to determine just cause for...
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