Board of Trustees of Community Colleges District 508 v. Cook County College Teachers Union

PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

The board argues in its petition for rehearing that this court adopted as true the factual allegations contained in the Union’s affidavit. While we necessarily referred to some of those underlying facts, we believe it is fairly clear that we determined only that the factual allegations presented an arbitrable grievance. The truth of those allegations and the resultant characterization of the board’s action is precisely the issue which is to be determined by the arbitrator. With respect to the board’s remaining concern, that this opinion will unfairly “announce to the world” that the board has engaged in certain activity before it had an opportunity to cross-examine witnesses or produce evidence to show otherwise, we note that it was the board’s decision to file an action to enjoin the arbitration which had already begun and that the hearing scheduled for the purpose of cross-examining the grievant was cancelled only after the trial court granted its motion for summary judgment. Although the board correctly points out that these allegations would more properly have been presented in some form other than defendants’ counsel’s affidavit, it would be a useless exercise for us to require a hearing in the trial court upon remand for presentation of evidence in further support of the allegations. The affidavit did not contain baseless speculation and conclusion, but was instead composed of references to the testimony given at the arbitration hearing. The board apparently does not claim that his affidavit misrepresented such testimony, and it will have every opportunity to dispute the truth of the allegations therein when the trial court, on remand, orders the parties to submit to arbitration.

The Union’s petition for rehearing refers only to subject matter jurisdiction. It argues that, because we held that the IELRA was inapplicable to the arbitrability and delegability issues, the portion of the opinion which deals with subject matter jurisdiction is therefore dictum. We disagree. Two separate inquiries are involved and, although we reversed the trial court and found that the grievance was arbitrable even though the Act did not apply to the delegability issue, it was still necessary for us to determine whether the circuit court had the power to decide that issue. Although the record discloses that the injunction suit was filed after the effective date of the statute, Union contends on appeal that the board should have filed an unfair labor practice charge with the IELR Board pursuant to that Act. (Ill. Ann. Stat., ch. 48, par. 1715 (Smith-Hurd Supp. 1985).) Thus, since the board’s action with respect to the pending arbitration was taken while the Act was effective, it was necessary to decide whether the arbitrability issue was properly before the circuit court rather than the IELR Board and the portion of the opinion dealing with subject matter jurisdiction was thus not dictum.

With respect to the merits of the Union’s subject matter jurisdiction argument, our opinion pointed out that the definition of an unfair labor practice in the Act, relied upon by the Union in its briefs, referred only to charges filed by the Union based upon the board’s refusal to bargain collectively in good faith. Even assuming arguendo that the Union is correct in stating that the unfair labor practice of refusing to bargain collectively also refers to such conduct on the part of the Union,1 we note that the Union now attempts in its petition for rehearing to argue that “refusing to bargain collectively in good faith” also includes an attempt to arbitrate an “illegal” contract provision. Although the Union states that the board could have filed an unfair labor practice charge against the Union for “refusing to bargain” when the Union attempts to arbitrate an allegedly “illegal” contract provision, we note that the Union did not support this argument with any authority. In its original brief, the Union referred to a United States Supreme Court case in which the court held that it was an unfair labor practice for an employer to refuse to enter an agreement unless it also included a proposal on a subject which was not a mandatory subject of bargaining. (See NLRB v. Wooster Division of Borg-Warner Corp. (1958), 356 U.S. 342, 2 L. Ed. 2d 823, 78 S. Ct. 718.) We do not believe, however, that this case is authority for the Union’s agreement with respect to arbitration of grievances, and we have not been referred to any decision, nor has our research revealed any, even under the section of the Federal Labor Management Relations Act which defines unfair labor practices. (29 U.S.C. sec. 158(d) (1982).) We therefore decline, particularly in the context of public employment, to adopt the strained interpretation advanced by the Union. Had the legislature wished to include this type of union conduct in the list of unfair labor practices, it could easily have done so with the appropriate language. Additionally, the Uniform Arbitration Act specifically refers to a stay of an arbitration proceeding in fairly straightforward language (see Ill. Rev. Stat. 1983, ch. 10, par. 102(b)), and, in the light thereof, we believe the Union’s attempt to avoid the effect of the Uniform Arbitration Act by a strained interpretation of the definition of unfair labor practices is without merit.

The petition for rehearing is denied.

PINCHAM and LORENZ, JJ., concur.

The portion of the statute pertaining to such a refusal on the part of the board specifically includes the discussion of grievances, but no such language is included in the section which refers to a union’s refusal to bargain collectively. Compare Ill. Ann. Stat., ch. 48, par. 1714(aX5), with par. 1714(b)(3) (Smith-Hurd Supp. 1985).