THIRD DIVISION

March 12, 2003

No. 1-01-4414

JUSTICE WOLFSON delivered the opinion of the court:

The issue in this case is whether the transfer of a teacherfrom a permanent position to a reassigned teachers pool is amatter of "class staffing and assignment" as used in section4.5(a)(4) of the Illinois Educational Labor Relations Act, 115ILCS 5/1 et seq. (West 2000) (the Act).

The Illinois Educational Labor Relations Board (IELRB)concluded the decision to transfer a teacher to the reassignedteacher pool is a matter of "class staffing and assignment." According to the IELRB, such a decision is a prohibited subject ofcollective bargaining under the Act and not subject to arbitrationunder section 4.5(a)(4). 115 ILCS 5/4.5(a)(4) (West 2000).

We disagree. We reverse the IELRB's decision and remand forfurther proceedings.

BACKGROUND

In 1997, Tyrone Greer was employed by the Chicago SchoolReform Board of Trustees, now known as the Chicago Board ofEducation (Board of Education). He was assigned to teach Englishat South Shore High School. He was first assigned to South Shorein 1990, and had been employed by the Board of Education for aboutten years. His last day at South Shore was June 25, 1997.

In July, he called the teacher personnel office and learnedthat the principal of South Shore had closed Greer's position onJune 30, 1997. When Greer reported to South Shore on August 26,1997, the principal told Greer he had no "position number" forGreer and that Greer had to report to the Board of Education. When he did so, Greer learned he had become a "reassignedteacher," that is, a member of the reassigned teachers pool. Greer also received a letter from the Director of Human Resourcesstating Greer was a reassigned teacher effective August 26, 1997,pursuant to the Board of Education's reassigned teacher policy.

Section 5 of the Policy Regarding Reassignment and Layoff ofRegularly Certified and Appointed Teachers (the Policy) statesthat a reassigned teacher is not assigned any additional dutiesfor the first 30 days after reassignment. During this time, thereassigned teacher may interview for positions at other schools. Under Section 9, if the reassigned teacher has not found aposition within the initial 30-day period, he is assigned to a"Region" as a day-to-day substitute teacher. One day a week, heis permitted to interview at schools for a permanent position. Under Section 10, if after ten months of reassignment the teacheris unable to secure a permanent position, the teacher will begiven an "honorable termination."

On September 9, 1997, the Union initiated a grievance onbehalf of Greer. The Union said Greer contended his displacementviolated section 2 of the Policy and Articles 3 and 42 of thecollective bargaining agreement between the Board of Education andthe Union because teachers with less seniority remained employedat South Shore.

Article 42 describes the policies and procedures applicableto the transfers of teachers.⁽¹⁾ Article 3 of the collectivebargaining agreement incorporates violations of the Policy intothe agreement by defining a "grievance" in relevant part as: "acomplaint involving a work situation or a complaint that there hasbeen a deviation from, misinterpretation of, or misapplication ofa practice or policy ***." (Emphasis added.)

The pertinent portions of the Policy read:

"Section 1 - Scope of Policy

Whenever an attendance center or a program is closed,there is a drop in enrollment, the educational focus of theattendance center is changed such that available teachingpositions cannot accommodate some or all current regularlycertified and appointed teaching staff, or when an attendancecenter is subject to actions taken as a result ofremediation, probation, reconstitution or educational crisis,such staff will be reassigned or laid off in accordance withthis policy.

Section 2 - Selection of Teachers for Removal

A. In Attendance Centers/Programs That Are Not Subject toReconstitution

If changes in an attendance center or program requireremoval of some but not all teachers, teachers withappropriate certifications will be selected for retentionbased on seniority. Provisionals, Day-to-Day substitutes,Cadre substitutes, FTBs and Probationary teachers within theattendance center or program will be removed before anyregularly certified and appointed teachers with theappropriate certification is removed, in that order. Withineach group, system-wide seniority shall be the determiningfactor."

When the Union was unable to resolve the grievance directlywith the Board of Education, the Union demanded arbitration underthe collective bargaining agreement.

The Arbitration

At the arbitration hearing, Greer testified about hisreassignment. He also testified that at least one of the teachersthat remained at South Shore and taught English had less senioritythan Greer.

In its post-hearing brief, the Board of Education contendedGreer's grievance was "solely a dispute over . . . staffing andassignment."⁽²⁾ The Board of Education said that under section4.5(a)(4) of the Act, class staffing and assignment are prohibitedsubjects of bargaining and arbitration. 115 ILCS 5/4.5(a)(4)(West 2000). The Board of Education also contended the Union hadfailed to prove any violation of the collective bargainingagreement.

On March 9, 1999, the arbitrator issued an Opinion and Award. In the Opinion and Award, he deferred the issue of statutoryinarbitrability to the IELRB.

In addressing the merits, the arbitrator noted the Policyrequired the removal of certain classifications of teachers, suchas FTBs (that is, full-time-basis substitutes), before anycertified and appointed teachers with the appropriatecertifications are removed. Greer was a certified and appointedteacher teaching English during the 1996-97 school year. CarolMoran, an FTB, taught English at South Shore during the 1996-97school year and continued teaching English during the 1997-98school year.

The arbitrator concluded Greer's removal from South Shorewhile Moran remained constituted a violation of the Policy. Thearbitrator ordered Greer restored to the status he enjoyed priorto removal, reinstated to a position as an English teacher atSouth Shore, and be made whole for all wages and benefits lostuntil he was restored.

The Board of Education refused to comply with the arbitrationaward.

Administrative Proceedings

On March 25, 1999, the Union filed an unfair labor practicecharge against the Board of Education contending violations ofsection 14(a)(8) and, derivatively, section 14(a)(1) of the Act,for the Board of Education's refusal to comply with a bindingarbitration award. 115 ILCS 5/14(a)(1), 14(a)(8) (West 2000). The Executive Director of the IELRB issued a complaint. The Boardof Education responded by contending the arbitration award was notbinding because the grievance was not arbitrable under section4.5(a)(4) of the Act.

On May 15, 2001, the administrative law judge issued herRecommended Decision and Order. In it, she concluded Greer'sreassignment was not a matter of "class staffing and assignment." Rather, Greer's grievance "involves a dispute about retention in apermanent position." Because section 4.5(a)(4) did not apply toGreer's grievance, the grievance was arbitrable, theadministrative law judge said. After concluding the Board ofEducation violated sections 14(a)(1) and 14(a)(8) by failing tocomply with a binding arbitration award, the administrative lawjudge ordered the Board of Education to, among other things,comply with the arbitrator's award.

The Board of Education filed exceptions to the administrativelaw judge's recommended decision. On November 16, 2001, the IELRBissued an Opinion and Order. In the opinion, the IELRB reversedthe administrative law judge's Recommended Decision and Order.

The IELRB noted section 10(b) of the Act makes null and voidany provision in the collective bargaining agreement that is inviolation of or conflicts with a statute. Section 4.5 prohibitsbargaining of, among other things, determinations of "classstaffing and assignment." The Act also prohibits arbitration ofthose subjects.

The IELRB said because Greer was receiving full salary andbenefits at the time of the arbitration hearing, his grievance wasnot a matter of job retention. Instead, the subject of Greer'sgrievance involved matters of "class staffing and assignment." Thus, the arbitration award was not binding, and the Board ofEducation did not violate sections 14(a)(1) and 14(a)(8) byrefusing to comply with the award, according to the IELRB.

One member dissented, concluding that transfer to thereassigned teachers pool was the "first step in a process used todischarge teachers from permanent employment." Thus, Greer'sgrievance was not a matter of "class staffing and assignment," butof job retention, according to the dissenter.

The Union then filed this appeal against the IELRB and theBoard of Education. The issue on appeal is whether the IELRBcorrectly concluded Greer's grievance was not arbitrable.

DECISION

Standard of Review

We are asked to interpret the phrase "class staffing andassignment" as used in section 4.5(a)(4) and determine whether thesubject of Greer's grievance involved a determination of "classstaffing and assignment." Because the issue before us is a mixedquestion of law and fact, we will apply the clearly erroneousstandard of review. See Chicago Teachers Union v. IllinoisEducational Labor Relations Board, 334 Ill. App. 3d 936, 942-43,778 N.E.2d 1232 (2002) (court employed clearly erroneous standardof review where issue before it concerned the interpretation andapplication of the phrase "class staffing and assignment" as usedin section 4.5(a)(4) of the Act).

Under the clearly erroneous standard of review, the reviewingcourt will reverse the agency's decision "only where the reviewingcourt, on the entire record, is 'left with the definite and firmconviction that a mistake has been committed.'" AFM MessengerService, Inc. v. Department of Employment Security, 198 Ill. 2d380, 395, 763 N.E.2d 272 (2001), quoting United States v. UnitedStates Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 542, 92 L.Ed.746, 766 (1948). This standard is largely deferential to theagency's decision, but does not require blind deference. AFMMessenger Service, Inc., 198 Ill. 2d at 395.

The Illinois Educational Labor Relations Act

The Illinois Educational Labor Relations Act regulates laborrelations between educational employers and educational employees. 115 ILCS 5/1 (West 2000). The Act also requires employers to"bargain collectively with regard to policy matters directlyaffecting wages, hours and terms and conditions of employment aswell as the impact thereon ***." 115 ILCS 5/4 (West 2000). Thecollective bargaining agreement must contain a grievanceresolution procedure and must "provide for binding arbitration ofdisputes concerning the administration or interpretation of theagreement." 115 ILCS 5/10(c) (West 2000).

The Union and the Board of Education entered into acollective bargaining agreement for the period September 1, 1995,to August 31, 1999. Article 3 of the collective bargainingagreement describes the grievance procedure. Article 3-5 providesfor the arbitration of grievances and states the decision of thearbitrator "shall be final and binding on the parties."

Under section 14 of the Act, which describes unfair laborpractices, employers are prohibited from "[r]efusing to complywith the provisions of a binding arbitration award," 115 ILCS5/14(a)(8) (West 2000), and "[i]nterfering, restraining orcoercing employees in the exercise of the rights guaranteed underthis Act", 115 ILCS 5/14(a)(1) (West 2000).

Section 4.5 of the Act describes prohibited subjects ofcollective bargaining. Among those prohibited subjects are:

"(4) Decisions to determine class size, class staffing andassignment, class schedules, academic calendar, hours andplaces of instruction, or pupil assessment policies, and theimpact of these decisions on individual employees or thebargaining unit." 115 ILCS 5/4.5(a)(4) (West 2000).

A prohibited subject of bargaining cannot be arbitrated. ChicagoTeachers Union, 334 Ill. App. 3d at 941.

Section 10(b) of the Act prohibits implementation of anyprovision in a collective bargaining agreement if theimplementation "would be in violation of, or inconsistent with, orin conflict with any [Illinois] statute or statutes." 115 ILCS5/10(b) (West 2000). As applied here, should the arbitrationaward conflict with the provisions of section 4.5(a)(4) (that is,should Greer's grievance involve a matter of "class staffing andassignment"), under section 10(b) the award is not binding, and noviolation of section 14(a)(8) occurred. Thus, the sole questionbefore us is whether Greer's grievance involved a matter of "classstaffing and assignment."

Interpretation of "Class Staffing and Assignment"

The Union contends "class staffing and assignment" as used inthe section 4.5(a)(4) means class staffing and class assignment. The IELRB agrees with the Union that "class staffing andassignment" is unambiguous and should be interpreted to mean classstaffing and class assignment. Although the Board of Educationconcedes "class staffing and assignment" refers to which class ateacher is assigned to teach, the Board of Education nonethelesscontends the phrase "class staffing and assignment" is not clearand unambiguous and urges us to consider the Act's legislativehistory.

The word "class" in "class staffing and assignment" as usedin section 4.5(a)(4) modifies both "staffing" and "assignment." Chicago Teachers Union, 334 Ill. App. 3d at 943; Chicago SchoolReform Board of Trustees v. Illinois Educational Labor RelationsBoard, 315 Ill. App. 3d 522, 530-31, 734 N.E.2d 69 (2000). "Classstaffing and assignment" refers to "how a class is staffed (i.e.,one teacher, two teachers working as a team, etc.) or what classis assigned to a particular teacher." Chicago Teachers Union, 334Ill. App. 3d at 943. Issues of job retention do not fall withinthe scope of the phrase. Chicago School Reform Board of Trustees,315 Ill. App. 3d at 531.

We reject the Board of Education's contention that we shouldconsider the legislative history of the Act in interpretingsection 4.5(a)(4). "The primary rule of statutory construction isto ascertain and give effect to the intent of the legislature." Bruso v. Alexian Brothers Hospital, 178 Ill. 2d 445, 451, 687N.E.2d 1014 (1997). The language of the statute is the bestevidence of the legislature's intent. Bruso, 178 Ill. 2d at 451. If the plain language of the statute reveals the legislature'sintent, we need not consider other aids for construction. In reMarriage of Murphy, No. 93436, slip op. at 6 (Ill. Jan. 24, 2003).

Here, the legislature's intent in employing the phrase "classstaffing and assignment" is clear and unambiguous. The partiesagree the phrase refers to how a class is staffed and what teacheris assigned to teach which class.

This construction is further supported by viewing section4.5(a)(4) as whole. Bruso, 178 Ill. 2d at 451-52 ("The court mustevaluate the language of the statute as a whole, considering eachpart or section in connection with every other part or section"). Besides decisions on "class staffing and assignment," section4.5(a)(4) also excludes the following subjects from bargaining:decisions to determinate class size, class schedules, academiccalendar, hours and places of instruction, or pupil assessmentpolicies. 115 ILCS 5/4.5(a)(4) (West 2000). The section alsoexcludes "the impact of these decisions on individual employees orthe bargaining unit." 115 ILCS 5/4.5(a)(4) (West 2000).

These exclusions all pertain to the logistics of organizingand operating classes. These exclusions do not pertain todecisions about job retention. To read "class staffing andassignment" to include more than just decisions on how to staff aclass or which teacher is assigned to which classroom is tointerpret the phrase in a manner inconsistent with not only theplain language of the statute, but also the remainder of section4.5(a)(4). Because the language of section 4.5(a)(4) is clear andunambiguous, we need not resort to the legislative history toascertain the legislators' intent.

Application of "Class Staffing and Assignment"

The remaining issue is whether assigning Greer to thereassigned teachers pool constitutes a decision about "classstaffing or assignment." Our analysis in two recent cases wherewe interpreted and applied section 4.5(a)(4) provides guidance.

In Chicago Teachers Union, the Union filed grievances onbehalf of four teachers contending violations of the collectivebargaining agreement where the Board of Education failed to selectthese teachers to teach summer school classes. The arbitratorsruled in favor of the Union in each case, but the Board ofEducation failed to comply with the arbitration awards. TheUnion filed unfair labor practice charges against the Board ofEducation alleging violations of section 14(a)(8) and,derivatively, section 14(a)(1).

The IELRB concluded "class staffing and assignment" referredto which class a teacher is assigned to, not whether a teacher isassigned to a permanent position. Because the teachers alreadywere employed by the Board of Education, and because a summerschool assignment is not a permanent position, the IELRB saidassignment to summer school was a matter of "class staffing andassignment" and a prohibited subject of bargaining andarbitration. The IELRB concluded the arbitration awards were notbinding. We reversed.

We noted that the "issue of whether one has a job isdifferent from the issue of which class one is assigned to teach." Chicago Teachers Union, 334 Ill. App. 3d at 944. We concludedthat whether a teacher is given summer employment is not a matterof "class staffing and assignment," because summer employment isan opportunity to earn an additional salary. Chicago TeachersUnion, 334 Ill. App. 3d at 944-45. The grievances were about "thegeneral issue of employment in summer school rather than the morespecific topic of assignment to a particular class." ChicagoTeachers Union, 334 Ill. App. 3d at 944-45.

In Chicago School Reform Board of Trustees, the Board ofEducation reconstituted seven schools. Teachers displaced due tothe reconstitutions were required to interview for their previouspositions. During this reconstitution, a number of teachers werenot rehired to their previous positions. In accord with thePolicy, they remained employees for ten months during which timethey were required to search for employment. If the teachersfailed to find another position within ten months, they would belaid-off and given an honorable termination. At the time of thearbitration hearing, not a single teacher had been laid off.

Several teachers who contended the interview process wasdiscriminatory requested the Union file grievances on theirbehalf. To investigate the charges, the Union requestedinformation from the Board of Education in accord with thecollective bargaining agreement. When the Board of Educationfailed to respond, the Union filed grievances on behalf of severalteachers. The Board of Education then denied the request forinformation.

The Union initiated an unfair labor practices charge againstthe Board of Education for failure to provide the requestedinformation. The Board of Education responded by contending,among other things, that the information requested pertained to aprohibited subject of bargaining under section 4.5(a)(4) of theAct.

The administrative law judge issued a recommended decisionand order finding that because of the displacement and potentialtermination of the teachers as a result of the reconstitutions,the information requested concerned the terms and conditions ofemployment. The administrative law judge concluded the Board ofEducation violated the Act by failing to supply the requestedinformation.

On appeal, the Board of Education contended the underlyinggrievances for which the Union sought the information were aboutdecisions on "class staffing and assignment," a prohibited subjectof bargaining. We rejected this contention.

We concluded:

"The [underlying] grievances relate to the decision whetherto retain the grievants as employees, not to how a class isstaffed (one or two teachers) or what class a particularteacher is assigned to teach. The grievances at issueinvolve questions of retention and discrimination, notprohibited subjects of bargaining." (Emphasis added.) Chicago School Reform Board of Trustees, 315 Ill. App. 3d at531.

Here, Greer was removed from his permanent position as anEnglish teacher at South Shore and designated a "reassignedteacher." Although his displacement is referred to as areassignment, he was not reassigned to teach another class or evenreassigned to another permanent position.

As a "reassigned teacher," Greer was not given any class toteach initially. His employment no longer was permanent. On thecontrary, if he was unable to find a permanent position within theBoard of Education during the ten months following reassignment,he would be "honorably terminated."⁽³⁾ Thus, the decision todisplace Greer removed Greer from a permanent teaching positionand placed him in teaching limbo -- hardly a decision about classassignment.

As we noted in Chicago School Reform Board of Trustees, thedecision to place a teacher in the reassigned teachers pool is amatter of retention, which is not a prohibited subject ofbargaining under section 4.5(a)(4). Chicago School Reform Boardof Trustees, 315 Ill. App. 3d at 531. That the teachers had notbeen terminated and remained employees of the Board of Educationdid not affect our analysis. Similarly, here, that Greer remainedemployed after becoming a "reassigned teacher" does not affect ourconclusion.

The IELRB attempts to distinguish Chicago School Reform Boardof Trustees by categorizing it as a case involving grievancesalleging only that the Board of Education had violated thenondiscrimination provisions of the collective bargainingagreement by removing certain teachers from reconstituted schoolsbased on discriminatory reasons. The IELRB is only partiallycorrect.

In Chicago School Reform Board of Trustees, in determiningwhether the Board of Education's failure to provide the requestedinformation was a violation of the Act, we looked at theunderlying grievances for which the Union had requestedinformation. Chicago School Reform Board of Trustees, 315 Ill.App. 3d at 530-31. The basis for the underlying grievances wasthe decision to remove the teachers from their positions and placethem in the reassigned teachers pool. That the reason may havebeen discriminatory was only part of the analysis. This isevidenced by our statement that "[t]he [underlying] grievances atissue involve questions of retention and discrimination, notprohibited subjects of bargaining." (Emphasis added.) ChicagoSchool Reform Board of Trustees, 315 Ill. App. 3d at 531.

The IELRB relies on its decision in Chicago School ReformBoard of Trustees, 15 Pub. Employee Rep. (Ill.), par. 1037 (IELRBApr. 23, 1999) (hereinafter Reassigned Teachers). In that case,the Union filed a grievance concerning teachers in the reassignedteachers pool, contending the Board of Education violated thecollective bargaining agreement by appointing temporary teachers,instead of teachers from the reassigned teachers pool, to vacantpositions. The IELRB concluded the Policy "concerns the method bywhich teachers are assigned to classes, and, accordingly, involvesdecisions concerning 'class staffing and assignment.' "

Reassigned Teachers did not involve the placing of apermanently positioned teacher into the reassigned teachers pool. It involved the class assignments not given to teachers already inthe pool. Arguably, the IELRB was dealing with a method forassigning teachers to classes, an issue not subject toarbitration. Whether the IELRB correctly decided the matter issomething we need not determine. This is a different case.

The Board of Education contends section 4.5(a)(4) isnonetheless controlling because the true decision grieved is theBoard of Education's decision to assign another teacher to teachthe remaining English classes at South Shore. That Greer wasdesignated a "reassigned teacher" was merely the "impact of [this]decision[] on [Greer]," which is a prohibited subject ofbargaining under section 4.5(a)(4). 115 ILCS 5/4.5(a)(4) (West2000). Similarly, the IELRB contends the decision to reassignGreer implicated the Board of Education's decisions about whichremaining teachers would be assigned to which remaining classes.

We read the language of section 4.5(a)(4) more narrowly. This was a particular decision to place Greer in the reassignedteachers pool. Of course, that decision had grave impact on him. But that would matter only in the event that he was the subject ofa class staffing or class assignment decision. He was not. Whenthe grievance at issue involves a question of job retention, it isnot a prohibited subject of bargaining and, thus, arbitration. Chicago School Reform Board of Trustees, 315 Ill. App. 3d at 531.

The IELRB contends the Policy on reassignment is a vehicle bywhich teachers receive new teaching assignments; thus, a decisionto designate a teacher a "reassigned teacher" is a matter of"class assignment." In so contending, the IELRB completelyignores the fact that "reassigned teachers" are not guaranteed newteaching assignments. On the contrary, they are required tosearch for new teaching positions. And, if they are unable tofind a new position, they are terminated.

It would be little solace to a teacher that his terminationis "honorable." Either way, he is out of a job. The Board ofEducation would have ended his employment without incurring theinconvenience of complying with the collective bargainingagreement.

Because Greer's grievance did not fall within the prohibitedsubjects of section 4.5(a)(4), the arbitrator's award did notconflict with the Act and is binding on the parties. By failingto abide by the award, the Board of Education violated section14(a)(8) and, derivatively, section 14(a)(1) of the Act.

The Policy

The Union contends, aside from whether the grievance wasabout "class staffing and assignment," the IELRB's decision shouldbe reversed because the Board of Education must follow its ownpolicies. According to the Union, section 4.5(a)(4) isspecifically directed at substantive provisions of the collectivebargaining agreement and does not bar enforcement of the Policy.

Our conclusion in favor of the Union based on theinterpretation and application of section 4.5(a)(4) would disposeof this case. There is no need to address this issue.

Section 34-18(31) of the Illinois School Code

The Board of Education contends the arbitration award is notbinding because it also conflicts with section 34-18(31) of theIllinois School Code, 105 ILCS 5/34-18(31) (West 2000). Forpurposes of administrative review, a party waives review ofarguments not raised before the administrative agency. NorthAvenue Properties, L.L.C. v. Zoning Board of Appeals, 312 Ill.App. 3d 182, 185, 726 N.E.2d 65 (2000). Because the Board ofEducation never raised this argument before the IELRB, the Boardhas forfeited our review of this contention.

CONCLUSION

For the reasons stated we reverse the IELRB's decision andremand this cause to the IELRB for further proceedings. We decideonly the issue of arbitrability. On remand, the IELRB will reviewthe arbitrator's award. Because Greer did not grieve histermination, that issue is not before the IELRB or this court. Wemake no comment on the question of whether Greer suffered anycompensable loss.

Reversed and remanded.

SOUTH, P.J., and HOFFMAN, J., concur.

1. The Union appears to have abandoned its reliance on Article42 by failing to raise the issue before the arbitrator during thehearing and failing to argue it in the Board of Education's post-arbitration-hearing brief. Both the arbitrator and theadministrative law judge noted this in their respectivedecisions. For this reason, we do not discuss Article 42 in anydetail.

2. The Board of Education initially raised the issue ofarbitrability in a motion to bifurcate the arbitration, which thearbitrator denied.

3. Greer was unable to find a permanent position within theten-month period. The Board honorably terminated Greer inJanuary 1999. Greer later found a permanent position and wasreinstated in August 1999. Greer did not challenge histermination, but instead pursues the appeal to recover under thearbitration award his lost wages for the period January 1999 toAugust 1999.