CHICAGO TEACHERS UN., LOCAL 1, A. FED. OF TEACHERS, AFL-CIO v. EDUC. …

• Decision Date: 07 November 2003
• Docket Number: No. 1-02-1077.,1-02-1077.
• Citation: 279 Ill.Dec. 407,344 Ill. App.3d 624,800 N.E.2d 475
• Parties: CHICAGO TEACHERS UNION, LOCAL 1, AMERICAN FEDERATION OF TEACHERS, AFL-CIO, Petitioner-Appellant, v. ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD and Chicago Board of Education, Respondents-Appellees.
• Court: United States Appellate Court of Illinois

800 N.E.2d 475

344 Ill. App.3d 624

279 Ill.Dec. 407

CHICAGO TEACHERS UNION, LOCAL 1, AMERICAN FEDERATION OF TEACHERS, AFL-CIO, Petitioner-Appellant, v. ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD and Chicago Board of Education, Respondents-Appellees.

No. 1-02-1077.

Appellate Court of Illinois, First District, Sixth Division.

November 7, 2003.

Rehearing Denied December 10, 2003.

Gessler Hughes Socol Piers Resnick & Dym, Ltd., Chicago (Jonathan A. Rothstein, Frederick S. Rhine, of counsel), for Appellant.

Asher, Gittler, Green & D'Alba, Chicago (Marvin Gittler, Joel A. D'Alba, Margaret Angelucci, of counsel), Amicus Curiae for Chicago Teachers Union.

Winston & Strawn, Chicago (Gregory J. Malovance, of counsel), and Illinois Education Association-NEA, Springfield (Mitchell E. Roth, of counsel), Amicus Curiae for Illinois Education Association-NEA.

Attorney General, Chicago (Lisa Madigan, Gary S. Feinerman, Richard S. Huszagh, of counsel), for Appellee Illinois Educational Labor Relations Board.

Board of Education of the City of Chicago Law Department, Chicago (Lee Ann Lowder, of counsel), for Appellee Chicago Board of Education.

Justice GALLAGHER delivered the opinion of the court:

This appeal challenges a decision of the Illinois Educational Labor Relations Board (IELRB) regarding an unfair labor practice charge brought by the Chicago Teachers Union, Local 1, American Federation of Teachers, AFL-CIO (Union), against the Chicago Board of Education (school board) for failing to comply with an arbitrator's decision. We reverse and remand.

Betty Jean Pittard (Pittard) was a tenured Chicago schoolteacher whose position was eliminated after a decline in attendance at her school. After Pittard's position was closed, she was designated a reserve or reassigned teacher. In effect at the time was the school board's "reassignment policy" that allowed the reserve or reassigned teacher to spend the first 30 days after removal from her position seeking a permanent position. The policy further provided that if the teacher did not succeed in obtaining a permanent position during that period, she was to be employed as a day-to-day substitute teacher four days a week, with the remaining day available to set up appointments and go to schools for interviews. The reassignment policy required the school board's department of human resources to "provide the teacher with a list of all unencumbered vacant positions for which he or she is qualified" and, upon written request, to further provide "a copy of the list of vacancies in any area identified by the department to be an area of systemic critical need." The board must also "make available to affected teachers lists of vacancies, job counseling and assistance with resume writing and interviewing skills." Under the policy, if a teacher is unable to obtain a permanent appointment to a teaching position within 10 months after her position was closed, the teacher will be laid off and given an honorable termination.

After the 10-month period ended, Pittard had not obtained a permanent assignment to a teaching position and was honorably discharged on August 27, 1999. On September 10, 1999, the Union filed a grievance, on behalf of Pittard, pursuant to the collective bargaining agreement between the school board and the Union. Article 3 of the collective bargaining agreement defines a grievance, in pertinent part, as "a complaint that there has been a deviation from, misinterpretation of, or misapplication of a practice or policy." The Union contended that the school board, in terminating Pittard without providing her assistance in obtaining a permanent position, had violated the reassignment policy. The school board denied the grievance.

On December 2, 1999, the Union demanded arbitration of the grievance. On March 2, 2000, a hearing was held before an arbitrator. The school board took the position that the grievance was substantively inarbitrable in its entirety and chose to present no evidence. The arbitrator deferred the issue of whether the dispute was arbitrable to the IELRB. The uncontroverted testimony before the arbitrator established that the school board, contrary to its own reassignment policy, gave Pittard no assistance in obtaining a permanent position. The arbitrator found that the school board had violated its policy "when it failed to afford [Pittard] the opportunities and information mandated by the policy." The arbitrator awarded reinstatement of Pittard to the status of reserve teacher and ordered the school board to afford Pittard the assistance in her job search that the school board's policy mandates. The school board refused to comply with the arbitrator's award, maintaining its position that the dispute was not arbitrable and that the arbitrator's award was not binding.

On August 2, 2000, the Union filed an unfair labor practice charge with the IELRB. The Union claimed that the school board, by failing to comply with the arbitrator's award, had violated sections 14(a)(1) and 14(a)(8) of the Illinois Educational Labor Relations Act (the Act).¹ 115 ILCS 5/14(a)(1), 14(a)(8) (West 2000). The school board responded by maintaining its position that the dispute was inarbitrable and it did not have to comply with the award.

On June 4, 2001, an administrative law judge (ALJ) issued a recommended decision and order, recommending that the school board be held to have violated section 14(a)(8) and, derivatively, section 14(a)(1) of the Act by not complying with the arbitrator's award. On June 25, 2001, the school board filed exceptions to the ALJ's recommended decision and order, and a supporting brief.

On March 14, 2002, the IELRB issued its final order. The IELRB decided, first, that the matter was arbitrable. The IELRB, however, agreed with the school board that the arbitrator's award was not binding. Nonetheless, the IELRB remanded the matter to the arbitrator to formulate an alternative remedy. This direct appeal by the Union followed. We granted leave to submit amicus curiae briefs in support of the Union to the Illinois Education Association-NEA, as well as Local 73, Service Employees International Union; Local 7, Firemen and Oilers; Local 143, International Union of Operating Engineers; Local 726, International Brotherhood of Teamsters; and Local 1, Hotel and Restaurant Employees International Union.

JURISDICTION

A threshold issue to be considered is whether this court has jurisdiction over this appeal. The school board asserts that this court lacks jurisdiction because the IELRB's order remanding the matter to the arbitrator was not a final order. The school board additionally argues, however, that the IELRB has no remand authority, in the first instance. As the IELRB correctly notes in its brief, the determination of this court's jurisdiction is intertwined with the question of whether the IELRB may ever remand a matter to an arbitrator.

We shall first address the issue of whether the IELRB has the authority to remand a matter to an arbitrator. Section 15 of the Act, which defines the procedure for handling an unfair labor practice complaint, states, in pertinent part, as follows:

"Unfair labor practice procedure. * * *

* * *

If the Board finds that the party charged has committed an unfair labor practice, it shall make findings of fact and is empowered to issue an order requiring the party charged to stop the unfair practice, and may take additional affirmative action, including requiring the party to make reports from time to time showing the extent to which he or she has complied with the order. * * * If the Board finds that the party charged has not committed any unfair labor practice, findings of fact shall be made and an order issued dismissing the charges." 115 ILCS 5/15 (West 2000).

The school board argues that the language in section 15 of the Act, which specifically provides that "[i]f the Board finds that the party charged has not committed any unfair labor practice, findings of fact shall be made and an order issued dismissing the charges" (115 ILCS 5/15 (West 2000)), requires that the IELRB, once it found that the school board did not commit an unfair labor practice by not complying with a nonbinding award of reinstatement, should have just dismissed the charges of an unfair labor practice. The school board further asserts that the IELRB exceeded its authority by remanding the case to the arbitrator and this court has a duty to vacate the IELRB's remand order as void for lack of jurisdiction (presumably leaving Pittard without a remedy for the school board's uncontested violation of its policy). We do not agree.

In the usual case, the IELRB "ultimately issues an order either finding an unfair labor practice and providing a remedy, or deciding the allegation of an unfair labor practice was unfounded." Niles Township High School District 219 Board of Education v. Niles Township Federation of Teachers, Local 1274, 295 Ill. App.3d 510, 512, 229 Ill.Dec. 711, 692 N.E.2d 700, 702 (1997). In the instant case, however, the IELRB did not issue an order dismissing the charges. Although the IELRB determined that the school board did not have to comply with what it had concluded was a nonbinding arbitration award, the IELRB recognized that a binding award was still required. In its decision, the IELRB expressly found that Pittard's grievance regarding the school board's failure to follow its reassignment policy was arbitrable and it accepted the findings of the arbitrator, as to the merits of the grievance, that the school board had violated its policy. In order that Pittard receive a remedy for her valid grievance, the IELRB remanded the matter to the arbitrator to fashion an alternative remedy. We conclude that this was a valid exercise of the IELRB's statutory authority.

We agree with the IELRB that, by expressly giving the IELRB the authority to "take additional affirmative action" (115 ILCS 5/15 (West 2000)) when addressing unfair labor...