Affirmed in part and reversed in part.
Mr. PRESIDING JUSTICE SULLIVAN delivered the opinion of the court:
Defendants appeal from the entry of a summary judgment in plaintiff's favor and from the denial of their motion for summary judgment.
This action involves a collective bargaining agreement (agreement) entered into between the Board of Education (plaintiff) and the teachers' union (union), wherein plaintiff recognized the union as the sole and exclusive bargaining agent for teaching employees. Article III of the agreement provides a definition and criteria for grievance procedures,
In Count II of the complaint, plaintiff sought the same relief noted above but with respect to a different grievance. Defendants Laura Creighton and Shirley Hackel (Creighton-Hackel), members of the bargaining unit, filed a grievance in which they complained that they were required to do the clerical work of writing student names on monthly attendance cards. This grievance, unlike the one above, had been submitted to arbitration with an award in favor of Creighton-Hackel. Plaintiff contends that: (1) the grievance was not one which should have been arbitrated; and (2) the decision of the arbitrator was not binding, inasmuch as the grievance was a matter within plaintiff's discretion and not delegable to an arbitrator.
Both parties filed motions for summary judgment. The principal facts set forth in the memorandums in support of the motions were as follows: Plaintiff operates the public schools in Stickney Township in grades K through 8, and the union is the bargaining representative for the teachers employed by the plaintiff. The Johnson grievance concerned a purported violation by the plaintiff of Article IV of the agreement, dealing with transfers of teachers from one school to another.
The Creighton-Hackel grievance concerned a purported violation by plaintiff of article IX of the agreement
On appeal, the following issues were raised: (1) does Illinois statutory or case law specifically exempt from collective bargaining or binding arbitration the subject matter of the grievances in the instant case; and (2) is the decision of the Illinois Appellate Court, Second District, in Board of Education v. Rockford Education Association, Inc. 3 Ill.App.3d 1090, 280 N.E.2d 286, reconcilable with the decision of this court in Chicago Division of the Illinois Education Association v. Board of Education, 76 Ill.App.2d 456, 222 N.E.2d 243.
Presented here is the issue of whether the specific grievances heretofore enumerated can be the subject matter of binding arbitration. The significant question involved, however, is whether submission of disputes to binding arbitration pursuant to a collective bargaining agreement constitutes an illegal delegation of the duties reposed in plaintiff by the Illinois School Code (Ill. Rev. Stat. 1971, ch. 122, par. 10-1 et seq.).
• 1 In the resolution of the problem presented here, we have examined the cases and authorities governing the various aspects of public sector collective bargaining. Chicago Division of the Illinois Education Association v. Board of Education, 76 Ill.App.2d 456, 222 N.E.2d 243, is significant. In Chicago Division the question of permissive collective bargaining for school boards and teachers' unions was reached for the first time. In the absence of any legislative expression on the matter
Nevertheless, we support the action taken by the court in attempting to formulate policy consistent with labor practices prevalent in both the public and private sector; that the court limited the scope of the holding can only be attributed to the implicit limitations placed upon any court in passing upon specific facts presented to it.
Defendants argue that Chicago Division and the recent case of Board of Education v. Rockford Education Association, Inc., 3 Ill.App.3d 1090, 280 N.E.2d 286, are irreconcilable. In Rockford, Getts, a member of the collective bargaining unit, applied for an administrative position created by the board. After the board rejected his and all other applications
The argument has been raised that once a board has entered into an agreement that is a partial delegation of its responsibility and, therefore, a further delegation of the resolution of minor disputes under the agreement to an arbitrator is merely a necessary step to implement the agreement.
In Local 1226, AFSCME v. City of Rhinelander, 35 Wis.2d 209, 151 N.W.2d 30 (1967), where a grievance arbitration was involved, the applicable state statute specifically provided that collective bargaining agreements between municipal employers and labor organizations "shall be binding" if they contain express language to that effect. The court in upholding the validity of binding arbitration found: "it is illogical to hold in this case that the arbitration provisions are valid but that the court is powerless to enforce them * * * especially in the light of the legislative enactment * * * that `such agreements shall be binding'." "The legislature has passed statutes doubtless of statewide concern which provide that the city's agreement to arbitrate grievances is binding on the city."
In City of Auburn v. Nash, 312 N.Y.S.2d 700, 34 App.Div.2d 345 (1970), involving an appeal from an order granting a stay of arbitration of a grievance filed by an employee, the court upheld the enforceability of arbitration for minor disputes. There a statute provided for collective bargaining between public employers and employees and a recent amendment thereto established a panel of qualified persons to serve as arbitrators. In addition, a governor's report encouraged the use of terminal arbitration. The court held, on page 705, "that the State itself is not insulated against the operation of an arbitration clause in a contract because the power to contract implies the power to assent to the settlement of disputes by means of arbitration."
In Tremblay v. Berlin Police Union, 108 N.H. 416, 237 A.2d 668 (1968), where a statute provided for collective bargaining, the grievance procedure clause of a collective bargaining contract was attacked as an unlawful delegation of municipal authority. The court, in sustaining the validity of the arbitration provision, held it was "subordinated to New Hampshire law" (which, among other things, included a statute that provides a party may give notice that it will not be bound by an arbitrator's decision).
In Oakland County Sheriff's Department v. Local 23, AFSCME (Mich. S.L.M.B., Jan. 8, 1968), where a public employment statute was in effect, it was determined that if a public employer has the duty to bargain and
In Central School District No. 1 v. Litz, 304 N.Y.S.2d 372, 60 Misc.2d 1009 (1969), where there was a statute authorizing arbitration, the court determined, on page 376, "[T]he statute authorizes arbitration, the contract delimits the arbitrator's powers to rule in accordance with law and the court retains power to confirm or reject the decision. * * * Under the circumstances, there is no illegal delegation of power."
In Local 1518, AFSCME v. St. Clair County Board of Commissioners, 43 Misc.App. 342, 204 N.W.2d 369 (1972), involving a grievance procedure and where an arbitration statute was in force, the court determined, on page 345, "It would be most incongruous if the Legislature, in providing for compulsory arbitration of such matters, traditionally the subject of mutual agreement, did not at least permit compulsory arbitration of the comparatively minor disputes bound to arise from time to time in the administration of the contract."
In Local 953, AFSCME v. School District, 66 LRRM 2420, the court recognized:
The court concluded that because there was a statute providing for collective bargaining, the right to arbitrate minor disputes was to be implied from the statute, stating: "Certainly giving the power to enter into a contract would include the power to settle disputes arising under the terms of such contract * * *."
Finally, in Gary Teachers Union No. 4 v. School City, 284 N.E.2d 108, 114 (Ind. App. 1972), where, in the absence of any public employment statute, the court sanctioned collective bargaining between a public employer and a teachers' union and approved binding arbitration, in holding that the School Act there gives the public school authority a broad grant of power, the court stated:
In principle, we agree with the above cases and recognize the salutory effect that binding arbitration has in the resolution of minor matters.
However, we are of the opinion that arbitration of certain "minor" disputes pursuant to a collective bargaining agreement does not constitute a delegation by the board, and we believe they should be submitted to binding arbitration in the event of impasse. Tacit approval has apparently been given to this concept by the court in Board of Education v. Champaign Education Association, 15 Ill.App.3d 335, 304 N.E.2d 138 (4th Dist.), wherein the defendants, pursuant to their collective bargaining agreement, filed a "grievance" claiming "specific violations of School Code 24.9 by Unit 4 (plaintiff) and deprivation of equal protection under the law of individual teachers and groups of teachers as guaranteed by Section IIIA(1) of the contract." This grievance was ultimately submitted to binding arbitration, where the plaintiff filed a motion to dismiss the claim (1) for want of jurisdiction; and (2) on the basis that the grievance was based solely on an alleged violation of the School Code and not on a violation of the agreement in which arbitration is provided. The arbitrator found for defendants, and plaintiff thereafter moved to vacate the award and the trial court set it aside, basing its decision on the fact that the arbitrator had exceeded his power because the agreement did not provide for the grievance raised by defendants. This court affirmed the decision and concluded that the specific grievance was one not encompassed by the terms of the agreement. It recognized, however, that arbitration was an acceptable method of resolving disputes arising out of an agreement, when it stated on page 341:
The problem inherent in our deciding that certain "minor" disputes are arbitrable is that standards are necessary to determine which disputes are minor. In the absence of any legislative expression, such standards are lacking in this State.
• 2 In this regard, we note that certain matters are specifically reserved to the board by the Illinois School Code and cannot, until such time as the legislature acts, be the subject of binding arbitration. Thus, we believe that only those terms in collective bargaining agreements which are not in contravention of the Code are arbitrable. For example, the School Code provides that the board has the duty "To appoint all teachers * * *" (Ill. Rev. Stat. 1971, ch. 122, pars. 10-20, 10-20.7) and the cases have held that this power cannot be delegated or limited by contract. (Elder v. Board of Education, 60 Ill.App.2d 56, 208 N.E.2d 423; Stroh v. Casner, 201 Ill.App. 281; Lindblad v. Board of Education, 221 Ill. 261, 77 N.E. 450.) Beyond this negative definition, it becomes impossible in the abstract to contemplate which contract disputes will be minor in nature and therefore arbitrable. Accordingly, we hold that the decision of whether a dispute is arbitrable (i.e., minor in nature) should be left to the respective parties and the arbitrator(s). By so providing, we would allow a third party to make the initial decision of arbitrability in disputes arising out of and in the contemplation of the collective bargaining agreement.
Further, we see no reason why the dictates of the Illinois Arbitration Act (Ill. Rev. Stat. 1971, ch. 10, par. 101 et seq.) should not apply and govern the resolution of minor disputes. In this way, although the initial determination is left to the arbitrator, the court retains the power to vacate an arbitrator's award under section 12(e) of the Act if the issue is one that is not arbitrable or if the arbitrator has exceeded his power. See Champaign Education Association, supra, where it was stated:
We would hope by this method of resolving minor disputes the following benefits, as discussed in 54 Cornell L.R. 129, 135-136, might follow:
The Johnson grievance. Johnson contends that her involuntary transfer from one school to another was in disregard of her contractual seniority rights as provided for in the agreement and therefore her grievance should have been submitted to arbitration.
• 3, 4 The collective bargaining agreement provides that on the question of involuntary transfers or reassignments, plaintiff shall determine, among other things, the transferee's qualifications for the position. The agreement further provides that the administration "shall use" certain guidelines in interpreting a teacher's qualifications (set forth in footnote 4 of this opinion). Johnson argues that the administration here either failed to consider her seniority or did not accord satisfactory weight to it in interpreting her qualifications. She contends that an arbitrator should be allowed to determine whether compliance was had with the guidelines set forth in the agreement. In this regard, it is noted that although the agreement requires the administration "shall use" the guidelines, it does not inform us as to the manner in which they should be used nor does it indicate the weight to be accorded each guideline.
Thus, it appears that the administration, in interpreting a teacher's qualifications, makes a determination of the weight to be given each. Under these circumstances, to allow an arbitrator to review the decision of the administration would permit the substitution of the arbitrator's judgment as to the relative importance of each guideline in the ultimate decision. This, in effect, would result in the arbitrator determining the
In fact, the collective bargaining agreement here recognizes that plaintiff has certain inherent duties and responsibilities that are reserved to it.
We realize that in the earlier portion of this opinion we decided that the initial question of arbitrability should be decided by an arbitrator. We also held that only those items not in contravention of the Code would be subject to arbitration but, because we have held that the determination of qualifications rests with the school administration and is not arbitrable, and since the Johnson grievance involves the question of her qualification, it would serve no useful purpose here to remand this case for a determination of its arbitrability.
The Creighton-Hackel grievance. The Creighton-Hackel grievance involves an alleged violation of the collective bargaining agreement which sought to disengage teachers from performing functions allegedly "clerical in nature." Specifically, the above grievants complained that they were required to write in the names of their students on monthly attendance cards; a job theretofore done by the school clerk. The dispute was submitted to arbitration with an award in favor of the grievants.
• 5 Our first analysis must therefore concern itself with the provisions of the School Code cited as applicable by the grievants; sections 18-12 and 24-18 (Ill. Rev. Stat. 1971, ch. 122, pars. 18-12, 24-18). Section 24-18 provides that teachers "shall keep daily registers * * *. Such registers shall be furnished by the school directors * * *." This section mandates that teachers are required to keep daily records on forms given to them by their respective administrations. It is our opinion that this statutory section says no more than that, and the question of whether or not the students' names were to be filled in by the school clerk or by the individual teacher was seemingly not within the contemplation of the drafters of this section. We believe, therefore, that as to this grievance, there is no specific statutory language invalidating its inclusion in the agreement nor governing its resolution. Moreover, we do not construe the statute to provide for the filling in of students' names on a monthly basis; rather, we believe the statute refers only to the mechanical function of filling in, on a daily basis, the attendance spaces provided on the form. There being no governing statutory authority and the submission to arbitration not being a delegation of the plaintiff's duties as provided for by statute, the dispute was one, certainly minor in nature, that could have been submitted to arbitration pursuant to a collective bargaining agreement. Since the grievance was one specifically provided for within the agreement, the arbitrator did not exceed his authority in determining the grievance to be arbitrable, nor did he, in our opinion, render an incorrect award.
We conclude that as to the Creighton-Hackel grievance, the grievance was one that was arbitrable pursuant to the provisions of the collective bargaining agreement and that it was a violation by plaintiff of that agreement.
Accordingly, the judgment of the trial court as to the Johnson grievance is affirmed and the judgment as to the Creighton-Hackel grievance is reversed.
Affirmed in part.
Reversed in part.
DRUCKER and LORENZ, JJ., concur.