Sherrard Community School District No. 200 v. Illinois Educational Labor Relations Board

June 15, 1998
NO. 4-97-0536

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

SHERRARD COMMUNITY UNIT SCHOOL ) Administrative Review
DISTRICT NO. 200, ) of Illinois Educational
Petitioner, ) Labor Relations Board
v. ) No. 96-CA-0004-S
THE ILLINOIS EDUCATIONAL LABOR )
RELATIONS BOARD and SHERRARD )
EDUCATION ASSOCIATION, IEA-NEA, )
Respondents. )

JUSTICE GREEN delivered the opinion of the court:
The dispute giving rise to this case resulted from the
action of petitioner, Sherrard Community Unit School District No.
200 (District), when, after formulating a plan to realign student
attendance at four grade schools, it reassigned some 14 teachers
to different schools for the ensuing school year. One of those
teachers, Scharm Schneck, objected and on May 25, 1995, was
permitted to appear before a closed meeting of the District's
Board of Education (Board) and persuaded the Board to allow her
to remain and to select another teacher for reassignment.
Respondent, Sherrard Education Association, IEA-NEA (Associa-
tion), was the duly elected exclusive representative of the
teachers employed by the District, but Schneck appeared before
the Board without being accompanied by a representative of the
Association.
On July 14, 1995, the Association filed an unfair labor
practice charge against the District with the Illinois Education-
al Labor Relations Board (IELRB). After an investigation,
IELRB's acting director issued a complaint on February 1, 1996,
charging the District with directly negotiating with Schneck
concerning a subject of mandatory bargaining (her involuntary
transfer), in violation of section 14(a)(5) and derivatively
section 14(a)(1) of the Illinois Educational Labor Relations Act
(Act) (115 ILCS 5/14(a)(5), (a)(1) (West 1994)), by failing to
bargain collectively with the Association concerning the reas-
signment of teachers. Section 14(a)(5) of the Act makes refusing
to bargain collectively in good faith with the exclusive repre-
sentative of educational employees an unfair labor practice.
Section 14(a)(1) makes interference by employers with the rights
of employees granted by the Act an unfair labor practice. Thus,
a violation of section 14(a)(5) is also a violation of section
14(a)(1).
On June 13, 1996, the parties stipulated to the facts
and waived oral argument. On October 28, 1996, an administrative
law judge (ALJ) for the IELRB entered a recommended decision and
order finding the District did not violate the Act. The Associa-
tion then filed exceptions before the IELRB. On May 15, 1997,
the IELRB issued a decision rejecting the ALJ's recommended
decision and found the District had violated the Act in bypassing
the Association and negotiating directly with Schneck over her
involuntary transfer, a matter the IELRB deemed, under the
particular circumstances, was a subject of mandatory bargaining
under the Act, thus requiring the Association's participation.
The District has taken administrative review to this court
pursuant to section 16(a) of the Act. 115 ILCS 5/16(a) (West
1994). We affirm.
The parties stipulate that (1) the teachers of the
District, the Association, and the District are educational
employees, an employee organization, and an educational employer,
respectively, within the meaning of the Act (115 ILCS 5/2(a)
through (c) (West 1994)); (2) the Association is the exclusive
representative of the District's teachers; (3) since 1980, the
parties have entered into several collective-bargaining agree-
ments; (4) during the 1994-95 school year, the District developed
a plan to realign students' attendance in four of its elementary
schools, thus requiring some reassignment of teachers; (5)
Schneck taught at a school where a reduction in the number of
teachers would be required; (6) in May 1995, the District's
administration recommended that 14 teachers, including Schneck,
be reassigned; (7) the reassignment of Schneck would have caused
her salary to be reduced by $1,982 per year because she would no
longer be a "head teacher"; and (8) Schneck was not a member of
the Association.
The following underlying agreed facts in regard to the
episode at the heart of the dispute are as follows. In May 1995,
Schneck contacted her school principal to object to the transfer
and he advised her the District's Board had not yet made any
final assignments. He further advised Schneck that under section
10-16 of the School Code (105 ILCS 5/10-16 (West 1994)) and the
Board's policy, she had a right to address the Board. Section
10-16 states, in part:
"At each regular and special meeting [of
the Board] which is open to the public, mem-
bers of the public and employees of the dis-
trict shall be afforded time, subject to
reasonable constraints, to comment to or ask
questions of the board." (Emphasis added.)
105 ILCS 5/10-16 (West 1994).
The agreed evidence further showed conclusively that
(1) at the May 25, 1995, Board meeting, Schneck requested and was
granted leave to meet with the Board in a closed session; (2) at
that meeting, she advised the Board that if she was transferred
she would lose her head teacher's stipend and she had more
seniority than any other teacher who might be transferred; (3)
following the meeting, the Board decided not to transfer her; (4)
another teacher, Debbie Youngblood, was selected for transfer;
(5) if Schneck had been transferred, no teacher at the school she
would be leaving would have had experience as a head teacher; (6)
Schneck had more seniority than Youngblood; (7) if transferred,
Schneck would have been the only teacher to lose a portion of her
salary; and (8) the District and the Association have never
bargained over an individual teacher's assignment.
At all times pertinent, article II, paragraph L, of the
collective-bargaining agreement between the Association and the
District provided as follows:
"Any teacher affected by an involuntary
transfer shall be notified as promptly as
possible and shall be afforded an opportunity
to have a conference with an appropriate
administrator. Upon request, he shall be
permitted to resign without penalty within
thirty (30) days, or sooner, provided a re-
placement is available. Any teacher trans-
ferred involuntarily shall have automatic
right to make timely application for any
subsequent vacancy. Administration shall
provide said teacher's conference, upon re-
quest, to discuss the application prior to
permanently filling the position."
The affidavit of Debbie Shelor, president of the
Association, stated she was familiar with the terms of the
collective-bargaining agreement and "the intent of article II(L)
was to give a teacher the opportunity to discuss an involuntary
transfer with the appropriate administrator," but that "an appeal
process to the school board was not contemplated."
This case turns upon the operation of sections 3 and 4
of the Act, which concern the rights of employees and employers,
respectively. Section 3(b) grants to duly selected employee
representatives, such as the Association, the right to collec-
tively bargain as the employees' representative in a unit "on
wages, hours, terms and conditions of employment." (Emphasis
added.) 115 ILCS 5/3(b) (West 1994). Section 4 of the Act
states:
"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." 115 ILCS 5/4 (West 1994).
However, employers are also required by section 4 of the Act, as
to the impact of policy matters upon which they are required, to
bargain collectively pursuant to section 3(b) of the Act. 115
ILCS 5/4 (West 1994).
The Association, the District, the ALJ, and the IELRB
are in agreement that the question of the reassignment of teach-
ers concerns "conditions of employment," as described in section
3(b) of the Act, and also matters of inherent managerial policy,
such as the direction of employees, as set forth in section 4 of
the Act. The opinion in the seminal case of Central City Educa-
tion Ass'n, IEA/NEA v. Illinois Educational Labor Relations
Board, 149 Ill. 2d 496, 523, 599 N.E.2d 892, 905 (1992), ex-
plained that in such circumstances a balance must be struck
between "the benefits that bargaining will have on the
decisionmaking process" and "the burdens that bargaining imposes
on the employer's authority."
In recommending a decision favorable to the District,
the ALJ concluded that the question of reassignments concerned
the evaluation of teachers, "a sensitive subject" that would be
made much more difficult by bargaining over it. Sherrard Commu-
nity Unit School District 200, 13 Pub. Employee Rep. (Ill.) par.
1003, at IX-9, No. 96-CA-0004-S (Illinois Educational Labor Rela-
tions Board, Administrative Law Judge's Recommended Decision and
Order, October 28, 1996). Therefore, the ALJ concluded that the
question of Schneck's transfer was not a subject of mandatory
bargaining. The ALJ noted that article II(L) of the collective-
bargaining agreement indicated that some bargaining had taken
place concerning the involuntary transfer of teachers but deemed
this provision dealt with the impact of an assignment change for
a teacher and not with the question of whether the assignment
should be made.
In rejecting the recommendation of the ALJ and finding
the District guilty of an unfair labor practice, the IELRB
opinion and order made clear it was not deciding whether a
determination to reassign teachers is necessarily a matter upon
which collective bargaining is required. However, the IELRB
determined that in applying the Central City test to the facts of
this case, collective bargaining was required because the fact
that bargaining took place and easily resulted in a change in
plans--granting relief to an employee (Schneck)--proved that here
bargaining did not impose an undue burden on the District's
authority.
We agree that bargaining took place even though Schneck
did not speak at length to the Board. She requested relief and
obtained it. Had she come before the Board with a representative
of the Association, the proceedings would have been somewhat more
complex because the representative of the Association likely
would have been required to also look out for the interests of
the teacher who was required to take the assignment to which
Schneck objected. However, when a decision as to whether an
issue is one that requires collective bargaining and the balanc-
ing test of Central City is reached, the determination of that
sensitive question is a "fact-specific" one upon which great
deference is given to the IELRB. Central City, 149 Ill. 2d at
523, 599 N.E.2d at 905.
The IELRB decision here was not entirely satisfactory
to either the Association or the District. The Association
maintains the decision was too narrow and the IELRB should have
set down a rule that questions concerning the reassignment of
teachers are always a subject of mandatory bargaining. As we
give deference to the IELRB's decision that under the circum-
stances here the District committed an unfair labor practice by
bargaining with Schneck without participation by the Association,
we also give deference to the IELRB determination to make a
narrow decision. A holding that not every action of a school
district in making reassignments of teachers requires collective
bargaining makes good sense, and the situation here has several
unique aspects.
In Central City, 149 Ill. 2d at 509-11, 599 N.E.2d at
898-99, the Supreme Court of Illinois cited, with apparent
approval, the opinion of this court in Decatur Board of Education
District No. 61 v. Illinois Educational Labor Relations Board,
180 Ill. App. 3d 770, 774, 536 N.E.2d 743, 745 (1989), wherein
this court stated that Pennsylvania legislation was used as a
guideline in establishing the Act. Here, the District cites
Forest Area School District, 19 Pub. Employee Rep. (Pa.) par.
19116, No. PERA-C-87-593-W (Pennsylvania Labor Relations Board,
April 12, 1988), where the Pennsylvania Labor Relations Board
(PLRB) upheld its secretary's decision to dismiss the associa-
tion's charges of unfair labor practices. The association
charged that the school district committed an unfair labor
practice by transferring an employee from a position within the
bargaining unit represented by the association to one outside
that particular unit. No other facts were alleged. In ruling to
dismiss the charge, the PLRB stated:
"To the extent that it may be Complain-
ant's allegation that the transfer of an
employe[e] from a bargaining unit to a posi-
tion outside of the bargaining unit absent
other motives which may indicate a specific
unlawful motive, is itself unlawful or an
unfair practice, the Board specifically re-
jects any such notion. The employer may
lawfully transfer employe[e]s within its
managerial discretion so long as its motives
are not unlawful as expressly recognized in
[s]ection 702 of [the Pennsylvania Public
Employee Relations Act (PERA)]." Forest, 19
Pub. Employee Rep. (Pa.) par. 19116, at 285.
The District, in its reply brief, cited two additional
cases where the PLRB held that an employer had the right to
determine issues of transferring employees without bargaining
with the association representative. In Baldwin-Whitehall School
District, 7 Pub. Employee Rep. (Pa.) 221, No. PERA-C-7706-W
(Pennsylvania Labor Relations Board, June 10, 1976), an employee
(teacher's aide) was voluntarily transferred to a secretarial
position without prior school board approval. Subsequently, the
school board denied approval and the employee was transferred
back to her former position. The association filed unfair labor
practice charges alleging the school district violated the
Pennsylvania PERA for failing to meet and bargain with it prior
to transferring the employee back to her former position.
Apparently, there was no history of the school district discuss-
ing its hiring and transferring decisions with the association.
There, the PLRB concluded that the school district's
failure to bargain with the association did not violate the act,
stating:
"From a review of the record, it would appear
that such action did not constitute a failure
on the part of the [district] to bargain col-
lectively in good faith. In the absence of
unusual circumstances, which do not appear in
this case, the [district] has the right,
without violating the Act, to refrain from
hiring or transferring personnel as a regular
exercise of their rights as employers unless
in doing so they are motivated by anti-union
animus against an employe[e] or are attempt-
ing to discourage union membership by their
actions. Here the [district] proceeded as it
always has in the past under previous con-
tracts and no objection has been lodged pre-
viously." Baldwin-Whitehall, 7 Pub. Employee
Rep. (Pa.) at 222.
Similarly, in East Allegheny School District, 13 Pub.
Employee Rep. (Pa.) par. 13060, No. PERA-C-81-128-W (Pennsylvania
Labor Relations Board, Hearing Examiner's Decision, February 12,
1982), the hearing examiner considered whether the school dis-
trict had to bargain over procedures used in filling department
head positions. The PLRB looked to New Jersey educational labor
board cases and approved the New Jersey precedent that held
employers had to bargain over procedures used to fill positions
but not over the substantive decision of who should be hired.
Accordingly, the PLRB held that the school district was required
to bargain over the procedures to be used to fill vacancies in
department head positions.
Here, in agreeing to article II(L) of the collective-
bargaining agreement, the Association and the District created a
method by which a teacher might proceed when "affected by an
involuntary transfer." This was not followed when Schneck was
erroneously advised to take the matter up directly with the
District's governing Board rather than with the administration.
The Association seeks to draw analogy between this case
and Board of Education of Sesser-Valier Community Unit School
District No. 196 v. Illinois Educational Labor Relations Board,
250 Ill. App. 3d 878, 620 N.E.2d 418 (1993). There, despite the
existence of a collective-bargaining agreement, the school
district dealt directly with three teachers and a volunteer
sponsor of a program in regard to their retirement benefits,
health insurance, or compensation. This court upheld an IELRB
decision finding the school district's conduct constituted an
unfair labor practice. This court stated:
"We conclude that the District here did
more than merely listen to the individual
employees; it also acted on their requests to
affect the terms and conditions of their
employment--without notice to and bargaining
with the Association--to the economic advan-
tage of the individual employees. The
IELRB's analysis of the employer's argument
on this point makes clear that the violation
lies in bypassing the exclusive representa-
tive in dealing directly with individual
employees on such matters. (8 Pub. Employee
Rep. (Ill.) par. 1023, at IX-93 through IX-
95.) This bypassing necessarily undermines
the Association's status as the exclusive
bargaining representative of employees in the
bargaining unit when individual employees
can, by going directly to the superintendent
with a proposal, secure for themselves bene-
fits the Association did not procure for
them. The power to deal with individual
members of the Association would give the
employer the power to effectively undermine
the Association, contrary to the intent of
the Act." (Emphasis in original.) Sesser-
Valier, 250 Ill. App. 3d at 884, 620 N.E.2d
at 421-22.
This case is different from Sesser-Valier because there
no balancing test was involved. The subject matter involved was
only the amount of remuneration to be paid to the employees. It
is precedent for a rule that the fact that the employee receives
the relief requested does not legitimatize the agreement for
compensation that was reached without the presence or participa-
tion of the employee's bargaining representative. The decision
also emphasizes the intent of the Act to prohibit negotiations
between employers and employees, which undermine the position of
the duly selected bargaining agent.
The District points out that Schneck was sent to the
District's Board under a belief that the procedure was authorized
by section 10-16 of the School Code. However, section 17 of the
Act states that "[i]n case of any conflict between the provisions
of this Act and any other law, executive order or administrative
regulation, the provisions of this Act shall prevail and con-
trol." 115 ILCS 5/17 (West 1994). Section 17 sets forth as the
only exception to the Act's supremacy certain civil service
rights not pertinent here. Thus, if the issue here was a matter
requiring bargaining, after applying the balancing test of
Central City, section 10-16 of the School Code would not change
that status.
The District points out that, under the instant ruling
of the IELRB, a school district might not know whether it was re-
quired to bargain collectively upon an issue until after the
bargaining was over. That is the biggest weakness of the IELRB
decision and our affirmance. On the other hand, the decision
protects the District from always having to bargain collectively
on the question of reassignment of teachers. The confusion
exists only when the issue is such that the balancing test under
Central City is applicable. Here, the District could have
avoided the problem by sending Schneck to the District's adminis-
trators, as contemplated by the collective-bargaining agreement,
rather than to the Board.
Implicit in the decision of the IELRB here is a concern
that the procedure adopted by the District had too great a
tendency to undermine the Association, as did the procedure in
Sesser-Valier. This problem could have been avoided if the
District had required Schneck to be accompanied by a representa-
tive of the Association before her case could be presented to the
Board. This would have constituted collective bargaining.
Perhaps one lesson that is learned from this case is in close
cases involving the balancing test of Central City, an education-
al employer that opts to bargain individually with an employee
does so at its peril because the result of the bargaining, as
here, is likely to show that bargaining was not unduly burdensome
to the educational employer, thus requiring the bargaining to be
done with the duly established representative of the employees.
We recognize the decision here is not a perfect answer
to the conflicting interests, but we believe the IELRB has struck
a reasonable balance that educational employers and employees can
live with. The sanctions imposed were not severe and we are
confident the dispute can be settled through bargaining that
includes the Association. Accordingly, we affirm the decision of
the IELRB.
Affirmed.
STEIGMANN and McCULLOUGH, JJ., concur.