Chicago Teachers Union v. Illinois Educational Labor Relations Bd.

THIRD DIVISION
May 27, 1998


No. 1-96-3551

CHICAGO TEACHERS UNION, IFT/AFT, AFL-
CIO, ASSISTANT PRINCIPALS FUNCTIONAL
GROUP,

Petitioners-Appellants,

v.

ILLINOIS EDUCATIONAL LABOR RELATIONS
BOARD,

Respondent-Appellee,

and

CHICAGO BOARD OF EDUCATION, CITY OF
CHICAGO DISTRICT No. 299,

Respondent-Appellee and
Cross-Appellant.)
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)Appeal from the
Illinois Educational
Labor Relations
Board

Nos. 96 UC 0004 C
96 RC 0006 C



JUSTICE CAHILL delivered the opinion of the court:
Public Act 89-15 added a section to article 34 of the Illinois
School Code effective May 30, 1995. See 105 ILCS 5/34-8.1b (West
1996). The section, in effect, bars Chicago public school
assistant principals from membership in the teachers' collective
bargaining unit. The collective bargaining agreement signed by the
Chicago Board of Education and the Chicago Teachers Union (the
Union) took effect September 1, 1995, and included assistant
principals as members of the bargaining unit.
The Union filed a unit clarification petition and a
representation petition with the Illinois Educational Labor
Relations Board (IELRB). Both petitions sought to have the Chicago
Teachers Union declared the collective bargaining representative
for assistant principals employed by the Chicago Board of Education
(Board of Education). The administrative law judge (ALJ) dismissed
the petitions. The ALJ found that assistant principals were
managerial employees and so ineligible for membership in the
teachers' union. The ALJ did not rely on section 34-8.1b of the
School Code to reach his decision. Instead, he made an independent
finding that assistant principals are "managerial employees" based
on IELRB interpretations of section 2(o) of the Educational Labor
Relations Act (115 ILCS 5/2(o)(West 1996)). The IELRB affirmed the
ALJ's recommended decision and order.
The Union appealed directly to this court under section 16 of
the Educational Labor Relations Act (115 ILCS 5/16 (West 1996)).
The Union makes five arguments on appeal. The first three address
the impact of section 34-8.1b on the case, while the last two
address the findings of the ALJ independent of section 34-8.1b: (1)
the recently enacted section 34-8.1b of the School Code (105 ILCS
5/34-8.1b (West 1996))--which prohibits Chicago assistant
principals from belonging to the teachers' collective bargaining
unit--is unconstitutional local legislation under article IV,
section 13, of the Illinois Constitution (Ill. Const. 1970, art.
IV, 13); (2) section 34-8.1b is an unconstitutional infringement
on the assistant principals' freedom of association under the first
amendment of the United States Constitution (U.S. Const., amend I);
(3) section 34-8.1b violates the principle of separation of powers
under article IV, section 1, of the Illinois Constitution (Ill.
Const. 1970, art. IV, 1); (4) assistant principals should be
recognized by the IELRB as a separate unit covered by the existing
contract; and (5) the IELRB erred in finding that assistant
principals are managerial employees under section 2(o) of the
Educational Labor Relations Act (115 ILCS 5/2(o) (West 1996)).
The Board of Education filed a cross-appeal and argued: (1)
the IELRB erred in finding that assistant principals are not
supervisors under section 2(g) of the Educational Labor Relations
Act; and (2) the IELRB erred in finding that former assistant
principals who are now full-time teachers, but bear the title
"assistant principal" and receive assistant principal stipends,
could remain in the teachers' bargaining unit. Because we agree
that the IELRB is empowered to decide whether assistant principals
are managerial employees, we do not reach the issues the Union
raises about the validity of the statute. The Board found
independent reasons to declare assistant principals ineligible for
teacher union membership.
The ALJ heard testimony that revealed that from 1967 to 1995,
the Union was the exclusive representative of a bargaining unit
that included full-time teachers, assistant principals, and other
Board of Education employees. The Board of Education has about
44,000 employees, 40,000 of whom are teachers. The parties
disagree about the number of assistant principal positions. The
Union's petitions suggest that an assistant principals' unit would
consist of 532 members. The Board of Education's records, on the
other hand, show 701 such positions.
The Board of Education's current job description for assistant
principals reads:
"Assistant Principals shall take charge of their
respective schools when their principals *** are absent
from the building for any reason. Assistant Principals
shall be subject to the supervision of the principal ***
and shall perform such duties the principal *** may
direct. Such duties may include, but are not limited to,
providing assistance in the organization, supervision,
administration, and discipline of the schools. In the
event there are multiple Assistant Principals in a school
and the principal *** [is] absent, the principal shall
designate which Assistant Principal shall be in charge."
Principals select assistant principals and set their work
schedules and duties. When a principal resigns, retires or is
discharged, the new principal may select new assistant principals.
Assistant principals selected by an earlier principal lose their
positions if not selected by the new principal.
The ALJ heard testimony from a number of principals and
assistant principals. The testimony reveals that the duties of
assistant principals vary from school to school. Some assistant
principals teach full-time, with no other duties. Others have
disciplinary responsibilities in addition to teaching. Still
others are given only nonteaching duties. These include monitoring
student attendance and tardiness, monitoring lunchrooms, observing
and evaluating teachers, enforcing discipline procedures,
interviewing prospective teachers, coordinating curriculum,
managing budgets, administering specific programs, and overseeing
school operations when the principal is absent.
After hearing the testimony, the ALJ dismissed the unit
clarification petition. The ALJ held that he did not have
authority to rule on the constitutional challenges to section 34-
8.1(b) of the School Code. Since the Union's constitutional
challenges to the statute were the only predicate for a unit
clarification petition, there were no grounds in the petition the
ALJ could address.
The ALJ then addressed the representation petition. The ALJ
determined that assistant principals are not "supervisors" within
the meaning of section 2(g) of the Educational Labor Relations Act,
but are "managerial employees" under section 2(o). The ALJ
reasoned that assistant principals are not supervisors because they
do not have the authority to hire, discharge, reward or punish
teachers. But assistant principals are managerial employees
because the primary role of the assistant principal is that of a
qualified executive employee who assists the principal in running
the school. He further reasoned that since assistant principals
serve only as long as the principal who appointed them, their
interests are aligned with those of management.
Both the Union and the Board of Education filed exceptions to
the ALJ's decision. The IELRB affirmed most of the ALJ's findings.
The Board differed only in ruling that employees who hold the title
of assistant principal, but who in fact teach full-time with no
managerial duties, are not managerial employees. The IELRB found
that these employees are not excluded from the teachers' union by
the language of the new section 34-8.1b of the School Code because
neither their job description nor their actual duties requires a
"Type 75 General Administrative Certificate."
The IELRB argues on appeal that we need not address the
constitutional challenges to section 34-8.1b raised by the Union.
Constitutional questions will not be considered if a case can be
disposed of on other grounds. Lyng v. Northwest Indian Cemetery
Protective Ass'n, 485 U.S. 439, 445, 99 L. Ed. 2d 534, 544, 108 S. Ct. 1319, 1323 (1988); In re Estate of Longeway, 133 Ill. 2d 33,
44, 549 N.E.2d 292 (1990). The IELRB argues that if we affirm the
decision that assistant principals are managerial employees, then
the Board of Education is not required to bargain with them under
the Act without regard to section 34-8.1b of the School Code. The
Union does not address this argument.
We can avoid the constitutional question only if the IELRB had
the authority to review whether assistant principals are managerial
employees without regard to the issues raised in the Union's
petition based on section 34-8.1b of the School Code. We noted
earlier that assistant principals are included in the collective
bargaining agreement effective from September 1, 1995, through
August 31, 1999. The statute that prohibits their membership took
effect three months earlier. While the constitutionality of the
statute would come into play if the IELRB had relied upon it,
nothing prohibits the IELRB from reaching the separate question of
whether assistant principals are managerial employees, so long as
the finding does not conflict with the statute. The IELRB has
interpreted its rules and regulations to permit review of an
employer challenge to employee status even during the term of a
collective bargaining agreement. See Lockport Township High School
District 205, 8 Pub. Employee Rep. (Ill.) par. 1068, No. 92--UC--
0003--C (IELRB, June 29, 1992); Rock Island School District, 2 Pub.
Employee Rep. (Ill.) par. 1060, Nos. 85--UC--0010--C, 85--UC--0011-
C (IELRB, April 21, 1986). The Union does not challenge this
power. So we agree with the IELRB that, even absent the Union's
petition based on section 34-8.1b, the IELRB had jurisdiction to
address the Board of Education's challenge to the status of
assistant principals. Because we affirm the IELRB's decision that
assistant principals are managerial employees--an issue within the
scope of the IELRB's powers--we need not address the constitutional
issues raised by the Union, challenging the statute.
The Union next argues that, even if the IELRB has the power to
decide if assistant principals are managerial employees, the IELRB
erred in finding that assistant principals are managerial employees
under IELRB precedents and the Educational Labor Relations Act.
The Union maintains that the work of assistant principals, as a
whole, is not managerial. In the alternative, the Union argues the
IELRB erred in concluding that the Board of Education met its
burden of proving that all non-full-time teaching assistant
principals are excluded from the bargaining unit as "managerial
employees." The Union suggests that each assistant principal must
be given a separate hearing because the duties of assistant
principals vary.
We will not reverse the findings of the IELRB unless they are
against the manifest weight of the evidence. Board of Education of
Plainfield Community Consolidated School District No. 202 v.
Illinois Educational Labor Relations Board, 143 Ill. App. 3d 898,
906, 493 N.E.2d 1130 (1986). Although we are not bound by the
IELRB's interpretation of the Educational Labor Relations Act, we
give weight and deference to the interpretation of a statute by the
agency charged with its administration and enforcement. Airey v.
Department of Revenue, 116 Ill. 2d 528, 536, 508 N.E.2d 1058
(1987); Board of Education of Community Consolidated High School
District No. 230 v. Illinois Educational Labor Relations Board, 165
Ill. App. 3d 41, 55, 518 N.E.2d 713 (1987). Deference is
appropriate where, as here, the agency brings unique experience and
expertise to the issue. Illinois Consolidated Telephone Co. v.
Illinois Commerce Comm'n, 95 Ill. 2d 142, 153, 447 N.E.2d 295
(1983).
Section 3 of the Educational Labor Relations Act gives
"educational employees" the right to organize for purposes of
collective bargaining with educational employers. 115 ILCS 5/3
(West 1996). Section 2(b) excludes from the definition of
"educational employee" those who are "supervisors, managerial,
confidential, short term employees, student, and part-time academic
employees of community colleges ***." 115 ILCS 5/2(b) (West 1996).
Exclusion of managerial employees maintains a distinction between
management and labor and provides employers undivided loyalty from
their representatives in management. Chief Judge of the Sixteenth
Circuit v. Illinois State Labor Relations Board, 178 Ill. 2d 333,
339, 687 N.E.2d 795 (1997), citing National Labor Relations Board
v. Yeshiva University, 444 U.S. 672, 682, 63 L. Ed. 115, 125, 100 S. Ct. 856, 862 (1980).
Section 2(o) of the Illinois Educational Labor Relations Act
defines "managerial employee" as:
"an individual who is engaged predominately in executive
and management functions and is charged with the
responsibility of directing the effectuation of such
management policies and practices." 115 ILCS 5/2(o)
(West 1996).
The Act does not define "executive and management functions."
But several Illinois cases interpret and apply either section 2(o)
of the Educational Labor Relations Act or the identical definition
of "managerial employee" in section 3(j) of the Illinois Public
Labor Relations Act (5 ILCS 315/3(j) (West 1996)). See Office of
the Cook County State's Attorney v. Illinois Local Labor Relations
Board, 166 Ill. 2d 296, 652 N.E.2d 301 (1995); Salaried Employees
of North America v. Illinois Local Labor Relations Board, 202 Ill.
App. 3d 1013, 560 N.E.2d 926 (1990); Board of Regents of the
Regency Universities System v. Illinois Educational Labor Relations
Board, 166 Ill. App. 3d 730, 520 N.E.2d 1150 (1988).
The Union's argument that assistant principals are not
managerial employees relies primarily on facts that distinguish
this case from Cook County State's Attorney, 166 Ill. 2d 296, 652 N.E.2d 301. In Cook County State's Attorney, our supreme court
held that assistant State's Attorneys are "managerial employees"
within the meaning of the Illinois Public Labor Relations Act. The
Union notes that in Cook County State's Attorney the court found
that assistant State's Attorneys are "surrogates" of the State's
Attorney--acts of assistants are regarded as acts of the State's
Attorney himself. See Cook County State's Attorney, 166 Ill. 2d at
303. The Union emphasizes that the State's Attorney's statutory
duties are "in almost every instance performed by an assistant who
prosecutes or otherwise handles a case according to his independent
professional judgment." The Union argues that Cook County State's
Attorney is distinguishable because assistant principals are not
"surrogates" of school principals, but are merely "helpers" or
"aides."
The term "surrogate" as used by the court in Cook County
State's Attorney emphasized the high level of alignment of
assistant State's Attorneys' duties and interests with those of
management. We agree that the duties of assistant principals and
principals are not so interchangeable that assistant principals can
be considered "surrogates" of principals. But Cook County State's
Attorney does not suggest that to be considered a "managerial
employee" an employee's only duties must be to carry out the
responsibilities of management.
In Cook County State's Attorney, our supreme court held that
"[t]he authority to make independent decisions and the consequent
alignment of the employee's interests with management's are
hallmarks of managerial status for purposes of labor law." 166 Ill. 2d at 301.
The court reasoned:
"'[M]anagerial status is not limited to those at the very
highest level of the governmental entity, for it is
enough if the functions performed by the employee
sufficiently align him with management such that the
employees "should not be in a position requiring them to
divide their loyalty to the administration *** with their
loyalty to an exclusive collective-bargaining
representative."'" Cook County State's Attorney, 166 Ill. 2d at 301-02, quoting Salaried Employees, 202 Ill.
App. 3d at 1021, quoting Board of Regents, 166 Ill. App.
3d at 742-43.
The court found that the assistant State's Attorney's duties under
statute and case law made them "managerial" because of three
features of the assistant State's Attorney position: (1) close
identification of a State's Attorney with the actions of
assistants; (2) unity of professional interests; and (3) power of
assistants to act on behalf of the State's Attorney. Cook County
State's Attorney, 166 Ill. 2d at 304.
The IELRB relied on similar aspects of the assistant principal
position in finding that assistant principals are managerial
employees. The IELRB found that "the primary purpose of assistant
principals, the specific duties assigned to assistant principals,
and the fact that assistant principals serve at the will of the
principal, lead inescapably to the conclusion that the assistant
principals are responsible for directing [Board of Education]
policies and practices in their individual schools, and that the
professional interests of assistant principals cannot be separated
from those of their principals." See Chicago Board of Education,
12 Pub. Employee Rep. (Ill.) par. 1089, Nos. 96--RC--0006--C, 96--
UC--0004--C, at IX-371 (IELRB September 17, 1996).
The role of an assistant principal is not sharply defined.
Rather, the role is a flexible one that allows principals to assign
duties to assistant principals where their help is needed most. As
the IELRB noted, although their duties vary, all assistant
principals are "bearing responsibility for a number of disparate,
unrelated tasks, for the fundamental, overriding purpose of the
successful operation of a school." Chicago Board of Education, 12
Pub. Employee Rep. (Ill.) par. 1089, Nos. 96--RC--0006--C, 96--UC--
0004--C, at IX-371 (IELRB September 17, 1996). The IELRB's
conclusion did not depend on a quantitative analysis of how much
time each assistant principal devoted to executive functions.
We note that the managerial work of assistant principals need
not take up most of their time to be considered "predominant" work
under section 2(o). The "predominant" character of executive and
management work is determined not only by the amount of time the
employee spends on managerial functions, but also by considering
whether these functions are "uppermost in importance and
influence." Southern Illinois University Board of Trustees, 5 Pub.
Employee Rep. (Ill.) par. 1197, Nos. 85--RC--0022--S, 85--RC--0027-
-S, 85--RC--0030--S, 85--RC--0031--S, 85--RC--0032--S, 85--RC--
0033--S, 85--RC--0035--S, 86--RC--0011--S, at IX-530 (IELRB
September 30, 1988). In Board of Regents, the court found that
directors of "public affairs centers" at Sangamon State University
were managerial employees under the Educational Labor Relations Act
even though they also held half-time faculty positions. Board of
Regents, 166 Ill. App. 3d at 743.
The varied duties assigned to assistant principals preclude us
from relying on individual duties alone in deciding whether
assistant principals as a whole are managerial employees. The
managerial nature of the assistant principal role is determined not
only by the tasks performed, but by what assistant principals stand
ready to do: whatever administrative work the principal assigns.
We agree with the ALJ's finding that "[t]he primary reason for
the existence of the assistant principal position is to provide
each of the [Board of Education's] schools with an additional
qualified executive whom the principal can entrust with the
overflow from the myriad of tasks, requiring discretion and
independent judgment, that confront principals in running the
schools." Chicago Board of Education, 12 Pub. Employee Rep. (Ill.)
par. 1034, Nos. 96--RC--0006--C, 96--UC--0004--C, at VI-115 (IELRB
February 29, 1996). Assistant principals are like the assistant
State's Attorneys in that both assist management in carrying out
managerial functions. This responsibility "closely aligns"
assistant principals with management in the same way assistant
State's Attorneys are aligned with management. The IELRB's
conclusion that assistant principals are "managerial employees" is
not against the manifest weight of the evidence.
Because the IELRB relied on all characteristics of the
assistant principal position, not just individual duties, we reject
the Union's argument that "whether a particular assistant principal
is a 'manager' might well require a hearing with respect to each
particular [assistant principal]." All assistant principals who
engage in nonteaching managerial tasks assigned by principals are
aligned with management and "should not be *** [required] to divide
their loyalty to [management] with their loyalty to an exclusive
collective-bargaining representative." Board of Regents, 166 Ill.
App. 3d at 743.
We next address the Board of Education's argument that the
IELRB erred in finding that employees who teach full-time, but
carry the title of "assistant principal" and continue to receive
the same stipend as other assistant principals, are not managerial
employees or excluded from the teachers' bargaining unit under
section 34-8.1b of the School Code.
The defining characteristic of managerial employees is the
authority to make independent managerial decisions. See Cook
County State's Attorney, 166 Ill. 2d at 301. Where an assistant
principal is assigned the same duties as a teacher, and has not
been assigned managerial tasks, that employee is not authorized to
engage in managerial functions or assist the principal in a way
that aligns professional interests. The IELRB did not err in
finding that such employees are not managerial employees. Why the
Board of Education continues to pay and recognize employees with no
managerial functions as "assistant principals" cannot be gleaned
from this record. That some full-time teachers continue to get
assistant principal stipends is a policy issue for the Board of
Education, not the IELRB. Salary is not a determining factor under
the Educational Labor Relations Act's definition of "managerial
employee."
We further note that full-time teachers are not excluded by
statute from the teachers' bargaining unit under section 34-8.1b of
the School Code. Section 34-8.1(b) of the School Code requires:
"[A]ny employee of the Chicago public schools system
whose job description or actual performance of duties
requires an Illinois Type 75 General Administrative
Certificate or its equivalent shall not be a member of
the teachers collective bargaining unit." 105 ILCS 5/34-
8.1b (West 1996).
Assistant principals who are, in fact, full-time teachers do
not need "Type 75 General Administrative Certificates" to perform
teaching duties. And the job description for Chicago assistant
principals does not require a "Type 75 General Administrative
Certificate."
We also find unavailing the Board of Education's argument that
"assistant principals" who are full-time teachers are "managers" or
need "Type 75" certificates for their jobs because they could be
called upon, under the Board's job description, to run the
operations of the school in the principal's absence. We
acknowledge that a principal could appoint these employees to
oversee operations of the school in her absence, in effect placing
that employee in the managerial class of assistant principals. But
the IELRB did not abuse its discretion in holding that the
possibility that assistant principals who teach full time might be
called upon one day to exercise such responsibilities is not
sufficient to find that they are predominantly engaged in
managerial tasks, are closely aligned with management, or that
their duties require "Type 75" certificates.
The IELRB has made clear two things: (1) the definition of a
managerial employee, and (2) whatever an employee might be called,
a full-time teacher with no other duties may be a member of the
Union.
Affirmed.
LEAVITT, P.J., and Cousins, J., concur.