Board of Education v. Illinois Educational Labor Relations Board

                                             Sixth Division

                                             Filed: 6/30/97


No. 1-96-2063


THE BOARD OF EDUCATION OF     )
THE CITY OF CHICAGO,          )
                              )
     Petitioner-Appellant,    )
                              )
          v.                  )  Petition for Direct Review
                              )  from the Illinois Educational
THE ILLINOIS EDUCATIONAL      )  Labor Relations Board
LABOR RELATIONS BOARD and     )
THE CHICAGO TEACHERS UNION,   )  
LOCAL 1, AFT, AFL-CIO,        )
                              )
     Respondents-Appellees.   )


     JUSTICE ZWICK delivered the opinion of the court:
     This cause comes before us in a direct appeal from an
opinion and order of the Illinois Educational Labor Relations
Board (IELRB) which held that the decision previously issued by
the administrative law judge (ALJ) was final and binding on the
parties.
     The stipulated record established that on March 12, 1990,
Cecilia Bitner was hired as a teacher by the Board of Education
of the City of Chicago (Board of Education).  On that date,
Bitner commenced the mandatory three-year probationary term prior
to attaining tenure.  Bitner received a performance rating of
"excellent" for the 1990-91 and 1991-92 school years.  On
February 3, 1993, approximately five weeks before she would
attain tenure, Bitner received an "E-1 Notice" of unsatisfactory
performance from the principal of the elementary school where she
taught.  On March 12, 1993, the three-year probationary term
expired, and Bitner became eligible to attain tenure.  Bitner
received an "E-2 Notice" of unsatisfactory performance on April
4, 1993, based upon her probationary status.
     On June 15, 1993, the Chicago Teachers Union filed a
grievance on behalf of Bitner, alleging that the Board of
Education had violated the collective bargaining agreement which
was in force by evaluating Bitner s performance according to the
procedures for probationary teachers as opposed to following the
procedures for tenured teachers.  This grievance was denied by
Bitner s principal on June 29, 1993.  On August 25, 1993,
Bitner's employment was terminated for unsatisfactory
performance.  The June 15, 1993, grievance was subsequently
denied by the General Superintendent of Schools on March 24,
1994.
     The Union made a timely demand for arbitration of the
grievance on February 9, 1994, and the arbitrator issued a final
and binding award on October 12, 1994.  In that award, the
arbitrator found that the Board of Education had violated the
collective bargaining agreement by utilizing the evaluation
procedures for probationary employees rather than those for
tenured employees.  The arbitrator further found that Bitner
should be reinstated as a tenured teacher and was entitled to
recover all lost wages and benefits.  The Board of Education 
refused to comply with the arbitrator s award, claiming that it
was against public policy.  On February 24, 1995, the IELRB
issued a complaint against the Board of Education, alleging an
unfair labor practice based upon the Board of Education s refusal
to comply with the final and binding award by the arbitrator.  On
August 28, 1995, the ALJ for the IELRB issued his recommended
decision and order, which found that the refusal to comply with
the arbitrator s decision violated sections 14(a)(8) and 14(a)(1)
of the Illinois Educational Labor Relations Act.  In addition,
the ALJ issued an order to show cause why sanctions should not be
imposed against the Board of Education for failure to comply with
the final and binding award.
     This decision was received by the Board of Education on
August 30, 1995, and it had until September 20, 1995, to file
exceptions thereto.  The Board of Education failed to timely file
exceptions to the ALJ s decision, but on September 22, 1995, two
days after expiration of the filing deadline, the Board of
Education requested extension of time to file exceptions.  This
request was ultimately denied by the IELRB on October 2, 1995.
     On September 27, 1995, the Board of Education filed a
response to the ALJ's order to show cause regarding imposition of
sanctions.  On October 27, 1995, the ALJ issued a supplemental
decision declining to impose sanctions against Board of
Education.  On November 21, 1995, the Board of Education filed
exceptions which related to the ALJ's original decision.  In
those exceptions, the Board of Education argued that it objected
to the ALJ's decision because it was against the public policy. 
On May 14, 1996, the IELRB issued its opinion which held that the
original decision by the ALJ became final and binding as of
September 20, 1995, and the Board of Education has appealed that
ruling.
     It is established that a party aggrieved by an agency action
must pursue all available administrative remedies before seeking
judicial review.  Phillips v. Graham, 86 Ill. 2d 274, 289, 427 N.E.2d 550 (1981).  Any argument or objection which was not
raised during the pendency of the administrative proceeding is
deemed waived and cannot be asserted on judicial review of the
agency decision.  Department of Central Management Services v.
Illinois State Labor Relations Board, 278 Ill. App. 3d 79, 82,
662 N.E.2d 131 (1996); Moore v. Illinois State Labor Relations
Board, 206 Ill. App. 3d 327, 338-39, 564 N.E.2d 213 (1990).
     The Illinois Administrative Code specifically provides that
a party may file exceptions to an administrative law judge's
recommended decision and order no later than 21 days after
receipt of the recommended decision; if no exceptions are filed
within 21 days after the parties receive the recommended decision
and order, the parties will be deemed to have waived their
exceptions.  80 Ill. Adm. Code 1120.50(a) (1994).
     The decision of the ALJ was received by the Board of
Education on August 30, 1995.  In order to preserve the right to
challenge this decision, the Board of Education was obligated to
file exceptions thereto within 21 days of that date.  Thus, it
was incumbent upon the Board of Education to file any exceptions
to the ALJ's ruling by September 20, 1995, and the failure to do
so constituted a waiver of the right to contest the propriety of
that decision.
     In the exceptions which were ultimately filed on November
21, 1995, the Board of Education sought to avoid compliance with
the ALJ's decision on the ground that it was contrary to public
policy.  However, that assertion was waived because the
exceptions were untimely.  In addition, the Board of Education's
request for an extension of time to file exceptions was not made
within the permitted 21-day time period.  See 80 Ill. Adm. Code
1100.30(d) (1994).
     In urging us to disregard its waiver of the right to file
exceptions, the Board of Education relies primarily upon the
Illinois Supreme Court's opinion in American Federation of State,
County and Municipal Employees, AFL-CIO v. The Department of
Central Management Services, 173 Ill. 2d 299, 671 N.E.2d 668
(1996).  We note, however, that the AFSCME decision case was
predicated upon facts which are radically different from those
presented here.
     In that case, the supreme court held that the Department of
Children and Family Services (DCFS) had not waived its right to
terminate the employment of a case worker even though the agency
had failed to comply with the requirements of timely disciplinary
procedures specified in the collective bargaining agreement.  The
underlying facts of that case demonstrate that the worker whose
employment DCFS sought to terminate had reported that three
children included among her case responsibilities were "doing
fine," when, in fact, the children had previously died in an
accidental fire in their home.  In addition, the case worker had
failed to submit case plans for the family for three years.  
     It is amply apparent that the public policy concerns which
dominated the supreme court's analysis are not involved in the
case at bar.  Although we recognize the importance of quality
public education, we are not inclined to equate the egregious
conduct of the case worker in AFSCME with Bitner's actions.  The
failure to receive a satisfactory performance review cannot be
compared to the abandonment of the obligation to safeguard the
health, safety and lives of children placed in the care of an
agency such as DCFS.  Accordingly, we hold that the supreme
court's opinion in that case is distinguishable and does not
govern the instant case.
     Implicit in the Board of Education's argument is the
assertion that in order to adhere to the public policy of
providing a quality public education the Board of Education is
permitted to ignore the filing deadlines specified in
1120.50(a).  Acceptance of this assertion would render
meaningless the clear and unambiguous terms of the Illinois
Administrative Code as well as the protections guaranteed by the
collective bargaining agreement.  We reject the Board of
Education's argument.
     The failure to timely file exceptions to the ALJ's ruling
rendered it a final administrative decision which was binding
upon the parties.  See 11 Ill. Adm. Code 502.50, 502.104(a)(3)
(1994).  Accordingly, we are precluded from considering the Board
of Education's claim that the ALJ's decision must be set aside on
public policy grounds.
     For the foregoing reasons, we affirm the decision of the
IELRB, and an order of enforcement is hereby issued pursuant to
Supreme Court Rule 335(h).
     Affirmed and order of enforcement issued.
     GREIMAN, J., and QUINN, J., concur.