East Richland Educ. Ass'n IEA-NEA v. Illinois Educational Labor Relations Bd., IEA-NE

CourtUnited States Appellate Court of Illinois
Citation528 N.E.2d 751,173 Ill.App.3d 878,124 Ill.Dec. 63
Docket NumberP,R,No. 1,IEA-NE,No. 4-87-0408,1,4-87-0408
Parties, 124 Ill.Dec. 63, 49 Ed. Law Rep. 673 EAST RICHLAND EDUCATION ASSOCIATION,etitioner, v. ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD and Board of Education, East Richland Unit School Districtespondents.
Decision Date28 July 1988

Gregory J. Malovance, Winston & Strawn, Chicago, Sandra Holman, Illinois Educ. Ass'n, Springfield, for petitioner.

Robbins, Schwartz, Nicholas, Lifton & Taylor, Decatur, John T. Taylor, Philip H. Gerner, III, of counsel, for Board of Educ. East Richland Unit School Dist.

Neil F. Hartigan, Atty. Gen., Chicago, Shawn W. Denney, Sol. Gen., Imelda R. Terrazino, Asst. Atty. Gen., Randi Hammer Abramsky, General Counsel, Illinois Educational Labor Relations Bd., Chicago, for IELRB.

MODIFIED ON DENIAL OF REHEARING

Justice SPITZ delivered the opinion of the court:

This is a direct appeal, pursuant to Supreme Court Rule 335 (107 Ill.2d R. 335) and section 16(a) of the Illinois Educational Labor Relations Act (Act) (Ill.Rev.Stat.1985, ch. 48, par. 1716(a)), from an order of the Illinois Educational Labor Relations Board (Board) of May 14, 1987, finding the Board of Education, East Richland Unit School District No. 1 (employer), did not commit the unfair labor practices alleged in the complaint and, consequently, dismissing the complaint. (East Richland Unit School District No. 1, Board of Education, 3 Pub. Employee Rep. (Ill.) par. 1055, case No. 86-CA-0005-S (Illinois Educational Labor Relations Board, May 14, 1987).) We affirm.

On February 4, 1986, East Richland Education Association (Association), IEA/NEA, filed a charge with the Board alleging the respondent school district had engaged in unfair labor practices in violation of sections 14(a)(1) and (a)(5) of the Act (Ill.Rev.Stat.1985, ch. 48, pars. 1714(a)(1), (a)(5)) by changing a scheduled vacation day--December 23, 1985--to a pupil attendance day, as the employer made the change unilaterally and refused to bargain with the Association about it. The change was made to compensate for the lost pupil attendance day which resulted from a statutory amendment which changed Casimir Pulaski's birthday from a commemorative holiday to a scheduled legal holiday.

The Board issued a complaint, which was set for hearing. Upon the motion of the parties, the case was removed to the Board, which, upon the stipulated facts and exhibits and the briefs of the parties, issued its decision dismissing the complaint. This appeal followed.

I

The controversy underlying this appeal revolves around the employer's midterm bargaining obligation, the effect given by the Board to the "zipper clause" in the parties' collective-bargaining agreement, and the legal standard to be applied in evaluating a defense of waiver based on such a zipper clause in an unfair labor practice case under the Act.

A

According to the stipulated facts, prior to the end of the 1984-85 school year the employer issued a calendar which provided that December 23, 1985, was a vacation day; March 3, 1986, was a pupil attendance day; and school closed on May 30, 1986. In August 1985 the legislature enacted Public Act 84-175, effective January 1, 1986, amending section 24-2 of the School Code (Ill.Rev.Stat.1985, ch. 122, par. 24-2), redesignating Casimir Pulaski's birthday from a commemorative holiday to a legal holiday to be celebrated on the first Monday in March (1985 Ill.Laws 1783, 1786-87).

At various meetings of the employer's board, proposals for amendments to the school calendar to provide for Casimir Pulaski day were discussed. Although the Association's president requested the employer's board and superintendent to bargain on the issue of adjusting the school calendar to accommodate Casimir Pulaski day, the employer took the position that such a change in the school calendar was not a mandatory subject of collective bargaining and no bargaining took place. The employer's board asked that the teachers be polled and the superintendent issued a memo to school district personnel requesting information on two proposed vacation dates being changed to work days to accommodate the Casimir Pulaski holiday. In November 1985, the employer's board voted to amend the school calendar to make Monday, December 23, 1985, a day of school attendance unless 100% of the teaching staff signed to approve extending the school year by one day in June 1986 and waived all rights to extra pay if the school year was extended one day. Thereafter, the employer decided to make December 23, 1985, the makeup day for the pupil attendance day lost by the addition of Casimir Pulaski's birthday as a legal holiday.

As a result, the employer's teacher employees worked December 23, 1985, as a pupil attendance day. Approximately 11 teachers were required to use personal leave to be absent from work that day and one teacher lost a day's pay.

Section 10(a) of the Act defines the duty to bargain, providing:

"An educational employer and the exclusive representative have the authority and the duty to bargain collectively as set forth in this Section. Collective bargaining is the performance of the mutual obligations of the educational employer and the representative of the educational employees to meet at reasonable times and confer in good faith with respect to wages, hours and other terms and conditions of employment, and to execute a written contract incorporating any agreement reached by such obligation, provided such obligation does not compel either party to agree to a proposal or require the making of a concession." (Ill.Rev.Stat.1985, ch. 48, par. 1710(a).)

Section 14 of the Act provides in pertinent part:

"Educational employers, their agents or representatives are prohibited from:

(1) Interfering, restraining or coercing employees in the exercise of the rights guaranteed under this Act.

* * *

* * *

(5) Refusing to bargain collectively in good faith with an employee representative which is the exclusive representative of employees in an appropriate unit, including but not limited to the discussing of grievances with the exclusive representative * * *." (Ill.Rev.Stat.1985, ch. 48, pars. 1714(a)(1), (a)(5).)

Section 4 of the Act provides a management rights provision which states in pertinent part:

"Employers shall not be required to bargain over matters of inherent managerial policy, which shall include such areas of discretion or policy as the functions of the employer, standards of services, its overall budget, the organizational structure and selection of new employees and direction of employees. Employers, however, shall be required to bargain collectively with regard to policy matters directly affecting wages, hours and terms and conditions of employment as well as the impact thereon upon request by employee representatives." Ill.Rev.Stat.1985, ch. 48, par. 1704.

In proceedings before the Board the employer argued (1) it had no duty to bargain on the calendar revisions; and (2) complainant had waived any duty which might otherwise exist under the Act to engage in midterm bargaining since, under the terms of the collective-bargaining agreement, the parties had waived any obligation to enter into midterm bargaining to amend the agreement.

With respect to the employer's first point, section 10-19 of the School Code provides:

"Each school board shall annually prepare a calendar for the school term, specifying the opening and closing dates and providing a minimum term of at least 185 days to insure 176 days of actual pupil attendance, computable under Section 18-8 * * *. * * * Except as provided in Section 10-19.1, the board may not extend the school term beyond such closing date unless that extension of term is necessary to provide the minimum number of computable days. In case of such necessary extension school employees shall be paid for such additional time on the basis of their regular contracts. * * *

A school board may make such changes in its calendar for the school term as may be required by any changes in the legal school holidays prescribed in Section 24-2." (Emphasis added.) Ill.Rev.Stat.1985, ch. 122, par. 10-19.

Turning to the parties' collective-bargaining agreement, the only pertinent provisions are set forth below. Article V of the parties' collective-bargaining agreement provided:

"5.1 School Year

The school year shall consist of not more than one hundred eighty-five (185) days, of which one hundred eighty (180) will be scheduled as pupil attendance and institute days. Five (5) of the one hundred eighty-five (185) days shall be declared by the Board as emergency days, provided no emergencies make it necessary to use them as school days."

Article X, entitled "Effect of Agreement," contained the following clauses--including the "zipper clause," section 10.6:

"10.1 Complete Understanding

The terms and conditions set forth in this Agreement represent the full and complete understanding and commitment between the parties hereto. The terms and conditions of this Agreement may be modified by alteration, change, addition to, or deletion only through the voluntary, mutual consent of both parties in a written amendment executed in accordance with the provisions of this Agreement.

* * *

* * *

10.4 Management Rights

It is expressly understood and agreed that all functions, rights, powers, or authority of the administration of the School District and the Board of Education which are not specifically limited by the express language of this Agreement are retained by the Board, provided however, that no such right shall be exercised so as to violate any of the specific provisions of this Agreement.

* * *

* * *

10.6 Waiver of Additional Bargaining

The parties hereby acknowledge that the terms and conditions included in this Agreement represent the full and complete understanding between the parties. The Board and...

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