Central City Educ. Ass'n, IEA-NEA v. Illinois Educational Labor Relations Bd.

• Decision Date: 24 May 1990
• Docket Number: No. 1-89-0919,P,IEA-NE,1-89-0919
• Parties: , 145 Ill.Dec. 648, 61 Ed. Law Rep. 1052 CENTRAL CITY EDUCATION ASSOCIATION,etitioner-Appellant, v. ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD, and Central City School District 133, Respondents-Appellees.
• Court: United States Appellate Court of Illinois

Page 418

557 N.E.2d 418

199 Ill.App.3d 559, 145 Ill.Dec. 648,

61 Ed. Law Rep. 1052

CENTRAL CITY EDUCATION ASSOCIATION, IEA-NEA, Petitioner-Appellant, v. ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD, and Central City

School District 133, Respondents-Appellees.

No. 1-89-0919.

Appellate Court of Illinois,

First District, Fourth Division.

May 24, 1990.

Winston & Strawn, Chicago (Gregory J. Malovance, Jane Clark Casey, William G. Miossi, of counsel), Sandra Holman, Springfield, for petitioner-appellant.

Miller, Tracy, Braun & Wilson, of Monticello (S. Jeff Funk, of counsel), Neil F. Hartigan, Atty. Gen., Robert J. Ruiz, Sol.

[145 Ill.Dec. 650] Gen., Chicago (Ann Plunkett-Sheldon, Asst. Atty. Gen., of counsel), for respondents-appellees.

Cornfield and Feldman, Chicago (Stephen A. Yokich, of counsel), amicus curiae for Illinois Federation of Teachers.

Justice LINN delivered the opinion of the court:

Petitioner-Appellant, Central City Education Association, IEA-NEA ("Association"), seeks administrative review of the March 2, 1989, opinion and order of the Illinois Educational Labor Relations Board ("IELRB" or "Board"). In that decision, the Board determined that Central City School District No. 133 ("District") did not violate the Illinois Educational Labor Relations Act by reducing its workforce for economic reasons without first submitting to bargaining with the Association.

On appeal, the Association raises two issues: (1) The Board erred in concluding that the District's decision to lay off four teachers for economic reasons was not a topic of mandatory collective bargaining; (2) The Board erred in finding that the District satisfied its obligation to bargain with the Association concerning the impact of the decision to lay off employees for economic reasons. The Illinois Federation of Teachers filed an amicus brief challenging the Board's use of its so-called "balancing test" for determining what constitutes a mandatory subject of bargaining. Both respondents-appellees, the Board and the District, filed briefs in support of their positions.

For the reasons that follow, we reverse.

BACKGROUND

The parties filed a joint stipulation of the record before the Board and therefore the facts are not in dispute.

Central City School District No. 133 is a school district for kindergarten through eighth grade. The District employed approximately 18 certified employees for the school year of 1986-87. On January 16, 1987, the District sent a letter to all certified personnel advising that a reduction in force was possible for the upcoming year. Two Association representatives and the superintendent met to discuss that possibility. The superintendent told the Association representatives that program cuts were not likely for the upcoming year and any reductions in force probably would not affect the two representatives. The Association also alleges that the superintendent went farther, telling its representatives that there were ways to get around program cuts; that cuts in programs and personnel were not expected; but that if there were any layoffs it would be only one person.

On March 10, 1987, the District's Board of Education voted to dismiss one non-tenured certified employee, and to eliminate three full-time positions occupied by tenured teachers. This action was to become effective at the end of the 1986-87 school year, in June 1987, and the teachers involved were so notified by letter.

The Association is the exclusive representative of the Districts' full-time certified personnel. Prior to March 10, there were no collective bargaining negotiations. By letter dated March 13, 1987, the president of the Association (one of the laid-off, tenured teachers) expressed surprise regarding the District's decision and demanded to bargain the decision to reduce the faculty and its impact on employee wages, hours, terms and conditions of employment.

The District cited its "fragile" financial condition, desire to save money by reducing labor costs, and declining student enrollment. The courses that were taught by the laid off teachers were offered again during the 1987-88 school year. The laid off teachers had taught eighth grade remedial math and language arts, sixth grade, and gym.

On March 27, 1987, the Association filed unfair labor practice charges with the Illinois Educational Labor Relations Board regarding the District's reduction in force of four bargaining unit employees without prior bargaining with the Association. The Association also submitted to the District bargaining proposals regarding the staff reductions.

On April 3, 1987, the District notified the Association that it was willing to bargain the impact of the reductions in force, and eventually, in connection with the upcoming 1987-88 school year, the parties did bargain over the impact of the previous reduction in force.

The parties submitted briefs and argument before the Board and filed a joint stipulation of record. The Board issued its opinion and order on March 2, 1989, two out of three members holding that the initial decision to reduce force is not a mandatory subject of bargaining. The majority further found that while the impact of such a decision is mandatory subject of bargaining, the District had met its obligations to bargain the impact.

OPINION

I.

The Board requests us to dismiss the appeal for lack of jurisdiction because the petition for review was filed within 35 days, under the Administrative Review Act (Ill.Rev.Stat.1987, ch. 110, par. 3-103), rather than within 30 days, under Supreme Court Rule 303(a), 107 Ill.2d 303(a). At the time the Association's petition was filed, the 35-day period was accepted, at least implicitly, as the proper limitation period on seeking review of the IELRB's final orders. (See Board of Education of Plainfield v. Illinois Educational Labor Relations Board (1986), 143 Ill.App.3d 898, 98 Ill.Dec. 109, 493 N.E.2d 1130; Board of Education of Jacksonville v. Illinois Educational Labor Relations Board (1989), 183 Ill.App.3d 972, 132 Ill.Dec. 319, 539 N.E.2d 882; Hardin County Education Association v. Illinois Educational Labor Relations Board (1988), 174 Ill.App.3d 168, 124 Ill.Dec. 49, 528 N.E.2d 737.) In fact, the Board's order in the pending case expressly directs "aggrieved parties" to seek judicial review in the appellate court in accordance with the provisions of the Administrative Review Law, and states that "judicial review must be sought within 35 days of the issuance of this Order."

The Board cites the recent decision of another division of this court, County of Cook, Cermak Health Services v. Illinois Local Labor Relations Board (1989), 137 Ill.Dec. 173, 545 N.E.2d 934, ¹ petition for leave to appeal granted (No. 69644, April 4, 1990, 131 Ill.2d 558, 553 N.E.2d 394) ("Cermak "). In that case, the Fifth Division determined that Supreme Court Rule 335(h), by implication, "establishes that Rule 303(a) is suitable for direct review of Local Labor Relations Board orders, and that section 3-103 of the Administrative Revew Law is unsuitable for such review." 189 Ill.App.3d 1057, 1060, 141 Ill.Dec. 236, 238-39, 551 N.E.2d 229, 231-32.

The Association argues that since its petition for review was filed two months before the filing of the opinion in Cermak, we should not retroactively apply that court's "sharp change from well-established and consistent law." Moreover, the Association points out that even after Cermak the Board continued to include in its final orders and opinions language that directs aggrieved parties seeking review in the appellate court to file their petition within 35 days.

We agree that applying the holding of Cermak to this case would be inequitable, especially since the accepted practice (as demonstrated by the Board's own notices) has led litigants to rely on the 35-day period for review. We find the Fifth Division's analysis to be logical and we agree that neither the legislature nor an administrative agency can abrogate the Supreme Court Rules governing appeals. Nevertheless, for us to hold that we have no jurisdiction over this appeal would penalize a litigant for complying with the accepted practice and case law in effect at the time it filed its petition for review. Such a result is unfair.

We do not imply that we have power to hear cases over which we lack jurisdiction. If a party attempts to appeal from a nonfinal order we must dismiss it as untimely. Under Supreme Court Rule 304(a), we may review final orders that are not immediately appealable if that order disposes of one branch of ongoing litigation and the trial court expressly finds that there is no just cause for delaying enforcement or appeal of that order. In such cases, the limits on appeals protect the court from being asked to render advisory opinions or review cases piecemeal. The appeal in the pending case, however, is from a final and appealable order. There is no threat to the appellate process, unless the legislative enactment of the 35-day rule infringes upon an express enactment of the Illinois Supreme Court as to the time for filing notices of appeal under its rules. While we believe that the Cermak rationale for applying the 30-day period of Rule 303(a) may be valid, ² we do not find that retroactive application serves any useful purpose. On the contrary, it may result in the ambush of unwary appellants who had no previous reason to question the 35-day period. Accordingly, we decline to dispose of this appeal on the basis of Cermak. See Elg v. Wittington (1987), 119 Ill.2d 344, 357, 116 Ill.Dec. 252, 258, 518 N.E.2d 1232, 1238 ("[A] new rule or decision will be given prospective operation whenever injustice or hardship due to justifiable reliance on the overruled decisions would thereby be averted").

II.

Under the facts of this case, does the Illinois Educational Labor Relations Act require the District to collectively bargain its decision to reduce force for economic reasons before...