West Chicago School Dist. 33 v. Illinois Educational Labor Relations Bd.

• Decision Date: 07 August 1991
• Docket Number: R,IEA-NE,No. 1-89-1429,1-89-1429
• Citation: 161 Ill.Dec. 105,218 Ill.App.3d 304,578 N.E.2d 232
• Parties: , 161 Ill.Dec. 105, 141 L.R.R.M. (BNA) 2148, 69 Ed. Law Rep. 853 WEST CHICAGO SCHOOL DISTRICT 33, Petitioner-Appellant, v. ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD, and Elementary Teachers' Association of West Chicago,espondents-Appellees.
• Court: United States Appellate Court of Illinois

Page 232

578 N.E.2d 232

218 Ill.App.3d 304, 161 Ill.Dec. 105,

141 L.R.R.M. (BNA) 2148,

69 Ed. Law Rep. 853

WEST CHICAGO SCHOOL DISTRICT 33, Petitioner-Appellant, v. ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD, and Elementary Teachers' Association of West Chicago, IEA-NEA Respondents-Appellees.

No. 1-89-1429.

Appellate Court of Illinois First District, Third Division.

Aug. 7, 1991.

Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., Chicago (Fred B. Lifton, Michael J. Foley, of counsel), for petitioner-appellant.

Winston & Strawn, Chicago (Gregory J. Malovance, Rex L. Sessions, of counsel), for respondent-appellee Elementary Teachers' Ass'n.

William D. Frazier, Office of Atty. Gen., Chicago, for respondent-appellee Ill. Educational Labor Relations Bd.

Justice RIZZI delivered the opinion of the court:

Petitioner West Chicago School District No. 33 (School District) appeals on direct administrative review from an order of respondent Illinois Educational Labor Relations Board (IELRB) holding that School District violated sections 14(a)(1) and 14(a)(5) of the Illinois Educational Labor Relations Act (Ill.Rev.Stat.1987, ch. 48, par. 1701 et seq.) by refusing to bargain in good faith over changes in teacher compensation, workload, and preparation time. On review, School District contends that the IELRB erred when it concluded that (1) School District's actions constituted changes in mandatory subjects of bargaining; and (2) respondent Elementary Teachers' Association of West Chicago, IEA-NEA (Association) did not waive its right to bargain over the subjects in issue. We affirm.

Association is the exclusive bargaining representative of a unit of professional certificated personnel employed by School District. School District and Association have been parties to nine collective bargaining agreements from 1972 through 1989. Beginning in the spring of 1986, School District imposed various changes in the terms and conditions of employment of represented teachers, including the establishment of eight in-service training days, the addition of certain classes to the following school year's schedule, and changes in the compensation provided for curriculum writing, summer school teaching, test scoring, and membership in the "Building Leadership Team" and "Science of Teaching" Cadre.

Association demanded to bargain with School District regarding the various changes instituted by School District's board, but School District refused to bargain on any of these subjects, asserting that Association had waived its right to bargain during the term of the parties' collective bargaining agreement pursuant to Article XV(A) and (E) of that agreement. ¹ In the fall of 1986, additional changes were instituted by School District, including the addition of certain classes and a decrease in the teachers' class planning time. Again, Association issued a demand to bargain with School District, and School District again refused.

On September 5, 1986, Association filed unfair labor practice charge No. 86-CA-0061-C against School District with the IELRB, alleging that School District had violated sections 14(a)(1) and 14(a)(5) of the Educational Labor Relations Act (Act) by failing to bargain with Association regarding the various changes unilaterally instituted by School District. Ill.Rev.Stat.1987, ch. 48, pars. 1714(a)(1), 1714(a)(5). On February 13, 1987, Association filed unfair labor practice charge No. 87-CA-0002-C with the IELRB, alleging that School District had violated sections 14(a)(1) and 14(a)(5) of the Act by refusing to bargain in good faith over changes in working conditions. Ill.Rev.Stat.1987, ch. 48, pars. 1714(a)(1), 1714(a)(5).

On July 10, 1987, the IELRB issued a complaint in case No. 87-CA-0002-C. School District filed a timely answer to the complaint. On August 13, 1987, the IELRB issued a complaint in case No. 86-CA-0061-C, and consolidated it with case No. 87-CA-0002-C. School District did not file an answer to this complaint.

At a hearing held on October 5, 1987, the hearing officer concluded that School District's failure to file a timely answer to the complaint in case No. 86-CA-0061-C constituted an admission of all material facts contained within the complaint. On October 8, 1987, the hearing officer certified that there were no determinative issues of fact that required his recommended decision, and ordered the matter removed to the IELRB for decision.

On May 2, 1989, the IELRB ruled that School District had violated sections 14(a)(1) and 14(a)(5) of the Act by refusing to bargain in good faith over the changes unilaterally instituted by School District. In so ruling, the IELRB held that the changes in question constituted mandatory subjects of bargaining, and that the parties had not waived the right to further bargaining by the terms and conditions of their collective bargaining agreement. On June 2, 1989, School District appealed directly to this court from the May 2, 1989 order.

Before addressing the merits of this case, we must first determine whether this court has jurisdiction to consider this appeal. School District filed its petition for review on June 2, 1989, 31 days after the IELRB's decision. The IELRB contends that this court is without jurisdiction to hear this appeal because School District filed its petition for review after the 30-day filing period promulgated by Supreme Court Rule 303(a). 134 Ill.2d R. 303.

The IELRB cites County of Cook, Cermak Health Service v. Illinois Local Labor Relations Board (1989), 189 Ill.App.3d 1057, 1059-62, 141 Ill.Dec. 236, 238-39, 551 N.E.2d 229, 231-32, where the First District held that the 30-day filing period set forth in Supreme Court Rule 303(a) governed direct appellate court review of IELRB orders, rather than the 35-day filing period set forth in section 3-103 of the Administrative Review Law. Ill.Rev.Stat.1987, ch. 110, par. 3-103. Recently, the First District in Central City Education Association, IEA-NEA v. IELRB (1990), 199 Ill.App.3d 559, 563, 145 Ill.Dec. 648, 651, 557 N.E.2d 418, 421, and the Fourth District in Board of Regents of Regency Universities v. IELRB (1991), 208 Ill.App.3d 220, 228 -29, 153 Ill.Dec. 113, 119, 566 N.E.2d 963, 969, held that a petition for review filed within 35 days after an IELRB order was issued was timely filed on the grounds that the appellant should not be penalized for relying upon recent decisions which either implicitly suggested or expressly held that the 35-day filing period in the Administrative Review Law is applicable for review of administrative agency decisions. See American Federation of State, County and Municipal Employees, Council 31, AFL-CIO v. State Labor Relations Board (4th Dist.1990), 196 Ill.App.3d 238, 142 Ill.Dec. 901, 553 N.E.2d 415; Board of Education of Jacksonville, School District No. 117 v. IELRB (4th Dist.1989), 183 Ill.App.3d 972, 132 Ill.Dec. 319, 539 N.E.2d 882; Hardin County Educational Association, IEA-NEA v. IELRB (4th Dist.1988), 174 Ill.App.3d 168, 124 Ill.Dec. 49, 528 N.E.2d 737; City of Benton Police Department v. Human Rights Commission (5th Dist.1986), 147 Ill.App.3d 7, 100 Ill.Dec. 698, 497 N.E.2d 876. Petitions for leave to appeal were granted by the Illinois Supreme Court for both Cermak and Central City, and both cases have been taken under advisement. Cermak, 131 Ill.2d 558, 142 Ill.Dec. 880, 553 N.E.2d 394 (argued November 28, 1990); Central City, 133 Ill.2d 553, 149 Ill.Dec. 317, 561 N.E.2d 687 (argued March 20, 1991).

Under the circumstances, we see no reason to again express the reasons stated in recent appellate court opinions whether the 30-day or 35-day filing period should apply for direct appellate review of administrative agency decisions. We believe it is sufficient to merely state our conclusion that we have jurisdiction to decide the merits of this appeal.

School District's first contention on review is that the IELRB erred when it concluded that School District's actions constituted changes in subjects requiring mandatory bargaining. School District argues that any actions that it took as employer were actions that maintained the status quo, and should not be considered changes at all. Accordingly, School District contends that maintaining the status quo did not require mandatory bargaining under the Act. We disagree.

A respondent to an unfair labor practice complaint must file an answer within 15 days after service of the complaint, and any failure to file a timely answer will be deemed to be an admission to the material facts in the complaint. 80 Ill.Adm.Code § 1120.30(d) (1989). School District, by virtue of its failure to answer the complaint in case No. 86-CA-0061-C, has admitted that the instituted changes did not maintain the status quo. Then, the issue remains as to whether those changes involved subjects requiring mandatory bargaining.

In Decatur Board of Education, District No. 61 v. IELRB (1989), 180 Ill.App.3d 770, 129 Ill.Dec. 693, 536 N.E.2d 743, the appellate court affirmed the IELRB's adoption of a balancing test to determine whether an action taken by an employer involves a mandatory subject of bargaining. The balancing test is essentially a three-part test.

Section 10(a) of the Act provides that changes affecting wages, hours, or terms and conditions of employment are mandatory topics of collective bargaining. Ill.Rev.Stat.1987, ch. 48, par. 1710(a). Part I of the balancing test determines whether the action taken by the employer directly or indirectly involves one of the mandatory subjects of bargaining set forth in section 10(a) of the Act.

Section 4 of the Act specifically denotes that employers do not have to bargain over matters of inherent managerial policy, which the Act enumerates to 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....