concurring specially:
I concur in the decision to affirm the ruling of the Board and I agree with the adoption of the balancing test.
In applying the balancing test to determine whether class size is an issue for collective bargaining, the Board recognized that class size has a substantial effect on the quality of service rendered to pupils but that a decision on the question has “a more direct and significant effect on teachers’ working conditions.” (Decatur School District No. 61, 4 Pub. Employee Rep. (Ill.) par. 1076, case No. 86— CA — 0042—S, at IX — 323 (Illinois Educational Labor Relations Board, May 17, 1988).) Thus, the Board determined that reductions in class size confer more benefits upon the teachers than upon the pupils. I am willing to give substantial deference to the expertise of the Board in making a determination of that nature.
I write separately (1) to emphasize the limits of this decision; (2) to discuss further the giving of “substantial deference” to Board decisions concerning matters upon which bargaining is required; and (3) to point out the severity of the burden which this decision places upon school districts.
The collective bargaining on class size requested here did not involve classes above the high school level. I do not interpret the order and opinion of the Board or the majority opinion to hold or indicate that educational employers engaged in providing programs in higher education are required to bargain over class size. Large classes obviously place a much greater burden on teachers at lower levels in maintaining discipline and giving individual attention to pupils than larger classes place upon college teachers. I would find any Board determination that determinations as to class size at the college level had a greater effect upon working conditions than upon the delivery of educational services to be clearly wrong and would not give such a determination deference. With the various ways available to conduct college classes, requiring bargaining as to class size would seem to place an unduly restrictive limitation upon college administration and deter innovation.
For the reasons explained, I am willing to give “substantial deference” to the Board’s determination that at the primary and secondary levels, the issue of class size is primarily a working condition. We cannot foresee all of the questions which may arise in regard to what issues require bargaining or as to the mix of factual and legal questions which may be involved. We should not state or imply that we will always give substantial deference to a Board determination on these questions, particularly in view of the fact that we may not always be able to do so properly.
The burden which the decision places upon school districts seems to me to be more than the majority recognizes. The record indicates the parties have already had substantial discussions in regard to the question. The duty now imposed to bargain in good faith on the question requires much more than discussion. As pointed out in the dissent of Board member Randi Hammer Abramsky to the Board’s opinion and order, the decision limits school districts in “effectuating any change in structural methodology (e.g., team teaching, lecture format) for the duration” of a contract. (Decatur School District No. 61, 4 Pub. Employee Rep. (Ill.) par. 1076, case No. 86 — CA—0042— S, at IX — 326 (Board member Abramsky, dissenting).) Board member Abramsky also explains that, unlike bargaining on salaries, bargaining on class size may involve the necessity of providing further building space. For these reasons, she would limit bargaining on class size to impact bargaining aimed at compensating teachers for the added burdens placed upon them when class sizes are increased. She also explains that the foregoing factors are the reasons why most States have apparently determined that public school districts are not required to bargain as to class size.
SUPPLEMENTAL OPINION ON DENIAL OF REHEARING
JUSTICE LUND delivered the opinion of the court:
On petition for rehearing, the Decatur Education Association, IEA-NEA, faults the following statement included in our opinion:
“The Board members all agree that a finding of direct effect, under the second sentence of section 4, did not automatically result in mandatory bargaining. The Board adopted a balancing test whereby, after finding a direct effect exists, the interests of the employees are weighed against the School District’s interest in maintaining unencumbered control over the managerial policy. This same balancing test could be used in determining when the impact of a particular policy decision would be subject to bargaining.” 180 111. App. 3d at 772-73.
The decision of the Illinois Educational Labor Relations Board (IELRB) in this cause included the following statement:
“The IELRA itself, however, contains the answer to this problem [where a given subject is arguably both a term and condition of employment and a reserved managerial prerogative]. It provides that those policy matters ‘directly affecting wages, hours and terms and conditions of employment’ must be bargained. In Berkeley, we said that ‘policy matters directly affecting wages, hours and terms and conditions of employment’ are those policies that have ‘wages, hours and terms and conditions of employment as their primary subject ***’ [Berkeley School District No. 87, 2 Pub. Employee Rep. (Ill.) par. 1066, No. 84-CA-0057-C (Illinois Educational Labor Relations Board, May 30, 1986).] When a given subject is both a term and condition of employment and a managerial prerogative, the question becomes how to determine if a policy has ‘wages, hours and terms and conditions of employment as [its] primary subject’ under Berkeley. We believe that such policies should be identified by using a balancing test.” Decatur School District No. 61, 4 Pub. Employee Rep. (Ill.) par. 1076, No. 86 — CA—0042—S, at IX — 322 (Illinois Educational Labor Relations Board; May 17,1988).
In the opinion and order of the IELRB in Central City School District No. 133, 5 Pub. Employee Rep. (Ill.) par. _, No. 87— CA — 0018—S, at_n.5 (Illinois Educational Labor Relations Board, Mar. 2, 1989) (Opinion and Order), the following footnote was included:
“In Decatur School District No. 61 v. IELRB, supra, the Appellate Court stated in passing that the IELRB balances the competing interests ‘after finding a direct effect exists’ (i.e., that a policy decision directly affects wages, hours and terms and conditions of employment). Rather, we balance the competing interests only after determining that a given subject is both ‘wages, hours, and terms and conditions of employment’ and a matter of educational policy. We then apply our balancing test to determine if the policy matter ‘directly affects(s) wages, hours and terms and conditions of employment’ within the meaning of the second sentence of Section 4 of the Act. We also note that the Court stated in dicta that ‘[t]his same balancing test could be used in determining when the impact of a particular policy decision would be subject to bargaining’ (Slip Op. at 3). Rather, Section 4 of the Act expressly requires that impact be bargained, upon request, regardless of whether the decision itself is subject to mandatory collective bargaining.”
We recognize a problem of semantics may be involved. However, our interpretation of legislative intention is final unless changed by our supreme court. Unless so changed, our opinions are to be followed by the IELRB.
The conflicts arising between section 10(a) of the Illinois Educational Labor Relations Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 1710(a)), which is entitled “Duty to bargain” and section 4 of the Act (Ill. Rev. Stat. 1987, ch. 48, par. 1704), which is entitled “Employer rights,” are apparent. Some employment policies, which in the common use of the English language would be said to directly affect conditions of employment, are so intertwined with matters of inherent managerial policy as to be beyond the right of bargaining. The IELRB would judge conflicts by determining whether the policy has wages, hours, and terms and conditions of employment as its primary subject. The IELRB professes to make this determination by the use of a balancing test.
Section 10(a) and section 4 illustrate the conflicting interests considered at the time of legislative enactment. In attempting to placate the conflicting interests, something less than perfection resulted. Our responsibility is to add some responsible and, hopefully, some understandable interpretation to the seemingly conflicting statutory provisions.
We withdraw our statement as to the use of the balancing test in regard to determining whether impact is subject to bargaining. However, nothing contained in this opinion should be taken to indicate that all cases, where impact is present, are subject to bargaining.
KNECHT and GREEN, JJ., concur.