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FOURTH DIVISION
Filed October 24, 2002

This consolidated appeal was brought by petitioner, Chicago Teachers Union, Local No.1 American Federation of Teachers, AFL-CIO (the Union), on petitions for direct review fromtwo opinions and orders entered by the Illinois Educational Labor Relations Board (IELRB). After the Union filed grievances alleging that respondent, the Chicago School Reform Board ofTrustees, now known as the City of Chicago Board of Education (Board of Education), violatedArticles 24-2 and 24-4 of their collective bargaining agreement by failing to select four Chicagopublic school teachers to teach summer school classes, the arbitrators ruled in favor of the Unionand ordered the Board of Education to make the teachers whole for the earnings they would haverealized had they been selected to teach summer school. When the Board of Education refused tocomply with the arbitration awards, the Union filed unfair labor practice charges against it,alleging that the Board of Education violated section 14(a)(8) and, derivatively, section 14(a)(1)of the Illinois Educational Labor Relations Act, (115 ILCS 5/14(a)(1), (a)(8) (West 1996)) (theAct) by refusing to comply with the awards. The IELRB ruled that the arbitration awards werenot binding, and thus, the Board of Education did not violate the Act by failing to comply withthe awards, because the grievances concerned a matter of "class staffing and assignment" undersection 4.5(a)(4) of the Act and were not subject to collective bargaining or arbitration. 115ILCS 5/4.5(a)(4) (West 1996). For the following reasons, we reverse and remand.

At issue in this consolidated appeal is the interpretation and application of section4.5(a)(4) of the Act, which provides:

"(a) Notwithstanding the existence of any other provision in this Act or other law,collective bargaining between an educational employer * * * and an exclusiverepresentative of its employees shall not include any of the following subjects:

* * *

(4) Decisions to determine class size, class staffing and assignment, classschedules, academic calendar, hours and places of instruction, or pupil assessmentpolicies, and the impact of these decisions on individual employees or thebargaining unit.

* * *

(b) The subject or matters described in subsection (a) are prohibited subjects ofbargaining between an educational employer and an exclusive representative of itsemployees and, for the purpose of this Act, are within the sole authority of theeducational employer to decide." 115 ILCS 5/4.5(a)(4), (b) (West 1996).

The following facts are relevant to this appeal. Chicago public school teachers PhyllisTrottman, Ellen Clark and Linnetta Banks are the subject of appeal number 1-01-0293. At thetime of the arbitration hearing in 1999, Trottman had taught in the Chicago public schools for 18years, working for the previous 10 years teaching first grade at Clara Barton Elementary School(Barton). Clark taught third- and fourth-grade special education at Barton for 10 years. Banks, asecond-grade teacher at Barton, taught in the Chicago public schools for 29 years. All three wereregularly appointed teachers and none had taught summer school in the two years prior to the1998 summer session. In 1998, there were no regular summer school classes at Barton. Instead,the school offered the "Bridge Program," which consisted of classes for students who failed toadvance to the next grade level, for grades 3, 6, and 8 and an "Early Intervention Program" forgrades 1 and 2. Barton also offered a "Social Center Program," which focused on recreationalactivities.

At the arbitration hearing, Barton's principal testified that Trottman, Clark and Banks didnot submit timely applications for summer school. However, in making credibilitydeterminations, the arbitrator specifically found the principal's assertion that she did not receiveTrottman's, Clark's and Banks' applications "not credible." The arbitrator also found "numerousinconsistencies and implausibilities in her testimony that seriously damaged her credibility as awitness." Similarly, the principal's testimony that she was unaware that Trottman, Clark andBanks were interested in teaching summer school "flies in the face of the evidence adduced onthe record" and "cannot stand in the face of Trottman's credible testimony." The arbitratorcarefully weighed the testimony and found that the principal "[came] up short." Accordingly, thearbitrator rejected the principal's assertion that Trottman, Clark and Banks were not chosen forsummer school because their applications were not timely received and made the specific factualfinding that Trottman, Clark and Banks submitted timely summer school applications. Additionally, Trottman, Clark and Banks were not selected to teach during the 1998 summersession while at least six teachers who were chosen to teach that summer taught summer schoolduring the previous two years. The arbitrator made no factual findings concerning the SocialCenter Program.

Chicago public school teacher Jeannie Pimentel is involved in appeal number 1-01-2510. Pimentel was a regularly appointed teacher with the Chicago public schools, teachingkindergarten at Marquette Elementary School. She submitted a timely application for the 1997summer school session, but was not chosen to teach. When she spoke with the assistant principalregarding why she was not selected, he told her that if a vacancy arose during the summer, shewould be selected to fill the position. However, when a position became available, it was givento a teacher with less seniority than Pimentel.

The Union filed a grievance on behalf of Trottman, Clark and Banks, alleging that theBoard of Education violated Articles 24-2 and 24-4 of the 1995-99 collective bargainingagreement by failing to select them for the 1998 summer school session. Article 24-2 of thecollective bargaining agreement provided:

"Assignments to all summer schools shall be made in the following order: (1)Regularly appointed teachers in their own subject, (2) Regularly certificatedteachers in their own subject, (3) Regularly appointed teachers certified in othersubjects in which they satisfy Bureau of Employment Eligibility requirements, (4)FTBs [full-time basis substitute teachers], and (5) Day-to-day substitutes."

Article 24-4 provided: "In areas where there are more qualified applicants for summer schoolpositions than positions available, preference shall be given to applicants who have taught fewerthan two summer sessions immediately preceding the current summer session." The grievancealleged that Trottman, Clark and Banks applied to teach during the 1998 summer session, butwere not chosen. Instead, the grievance stated, new teachers and teachers who worked more thantwo consecutive summer sessions were selected.

Barton's principal denied Trottman's, Clark's and Banks' grievance, stating that the issuewas no longer grievable. The Union appealed the principal's decision to the Board of Education'schief executive officer, who denied the grievance on the basis that the teachers did not apply forsummer school positions at Barton. The Union then demanded arbitration. At the arbitrationhearing, the Board of Education objected to the arbitrator's jurisdiction, arguing that thegrievance involved a matter of "class staffing and assignment" and was, thus, a prohibited subjectof bargaining and arbitration under section 4.5(a)(4) of the Act. The arbitrator deferred thequestion of substantive arbitrability to the IELRB. She then determined that Trottman, Clark andBanks applied for the 1998 summer session and were entitled to priority under Articles 24-2 and24-4 of the collective bargaining agreement. The arbitrator concluded that the Board ofEducation violated the agreement by failing to follow the preferences established in Articles 24-2and 24-4 for summer employment and ordered the Board of Education to make Trottman, Clarkand Banks whole for any monetary losses that resulted from its actions, including full salaries forthe 1998 summer session.

The Union also filed a grievance on behalf of Pimentel, alleging that the Board ofEducation violated Article 24-2 of the collective bargaining agreement by failing to give her asummer school position. The grievance alleged that Pimentel filed a timely application for the1997 summer session, but did not receive a position while other teachers with no certificationand lower seniority were selected. Additionally, the assistant principal told Pimentel that shewould receive any summer position if one became available. When a position did becomeavailable, it was offered to another teacher.

Marquette's principal denied this grievance, stating that he had no timely filed applicationfor Pimentel. The Union appealed the decision to the Board of Education's chief executiveofficer, who also rejected the grievance. The Union then demanded arbitration. At thearbitration hearing, the Board of Education again objected to the arbitrator's jurisdiction undersection 4.5(a)(4) of the Act. The arbitrator addressed the issue and determined that the failure toselect Pimentel for a summer school position did not concern how summer school classes werestaffed or what classes were to be assigned to summer school teachers and, thus, was not adecision to determine "class staffing and assignment" under section 4.5(a)(4). The arbitrator thenaddressed the merits of the grievance, determining that Pimentel submitted a timely applicationfor the 1997 summer session and that she was promised a summer position if one becameavailable. Therefore, the arbitrator concluded that the Board of Education violated Article 24-2of the collective bargaining agreement by failing to select Pimentel for summer school andordered the Board of Education to make her whole for the earnings she would have realized hadshe been selected to teach during the 1997 summer session.

In both cases, the Board of Education informed the Union that it would not implement thearbitration award. The Union filed unfair labor practice charges against the Board of Education,alleging that it violated section 14(a)(8) and, derivatively, section 14(a)(1) of the Act by refusingto comply with the awards. Section 14(a)(8) prohibits educational employers from "[r]efusing tocomply with the provisions of a binding arbitration award," and section 14(a)(1) prohibitseducational employers from "[i]nterfering, restraining or coercing employees in the exercise ofthe rights guaranteed under this Act." 115 ILCS 5/14(a)(1), (a)(8) (West 1996). The IELRBconducted investigations into the charges and issued complaints and notices of hearings. TheBoard of Education then filed answers and asserted its affirmative defenses. After the partiesrequested to proceed upon stipulated records and filed posthearing briefs, the administrative lawjudges (ALJ) issued their decisions.

In both decisions, the ALJs stated that in determining whether an employer violatedsection 14(a)(8) of the Act by refusing to comply with an arbitration award, the inquiry waslimited to determining whether the award was binding, the content of the award and whether theemployer complied with the award. Board of Education of Du Page High School District No. 88v. Illinois Educational Labor Relations Board, 246 Ill. App. 3d 967, 974, 617 N.E.2d 790, 794(1992). In the instant case, there was no dispute as to the content of the awards or that the Boardof Education failed to comply with them. The only issue was whether the awards were binding. Section 10(b) of the Act prohibits the implementation of any provision in a collective bargainingagreement which is in violation of or in conflict with any Illinois statute. 115 ILCS 5/10(b)(West 1996); Board of Education of Rockford School District No. 205 v. Illinois EducationalLabor Relations Board, 165 Ill. 2d 80, 88, 649 N.E.2d 369, 372 (1995). An issue that cannot bethe subject of a collective bargaining agreement also cannot be arbitrated. Consequently,arbitration awards that conflict with the Act are not binding and not enforceable. The ALJs thenagreed with the Board of Education and determined that the arbitration awards in these casesconflicted with section 4.5(a)(4) of the Act because the underlying grievances concerned an issueof "class staffing and assignment." Therefore, the ALJs determined that the arbitration awardswere not binding and the Board of Education did not violate sections 14(a)(8) and 14(a)(1) of theAct by refusing to comply with them.

The Union filed exceptions to both of the ALJs' recommended decisions. In splitdecisions, the IELRB affirmed the ALJs' decisions in both cases and found that the Board ofEducation did not violate sections 14(a)(8) and 14(a)(1) of the Act because the arbitration awardswere not binding. The IELRB interpreted the term "class staffing and assignment" in section4.5(a)(4) of the Act to mean which class a teacher is assigned to, not whether a teacher isassigned to a permanent position. The IELRB determined that summer school positions weregiven to teachers who were already employed by the Board of Education, and thus, assignment tosummer school is not appointment to a permanent position, but an opportunity to teach additionalcourses while retaining their current positions. The IELRB stated that "[w]hether a teacher isassigned to teach summer school does not affect whether he/she has a job, but merely whetherhe/she is assigned to teach within that set of classes." Chicago Teachers Union Local 1, ___ Pub.Employee Rep. (Ill.), par. ___, No. 2000-CA-0033-C (IELRB April 19, 2001). Assignment tosummer school involved a matter of "class staffing and assignment" and was, therefore, aprohibited subject of bargaining and arbitration.

Three members of the IELRB dissented in each case, stating that section 4.5(a)(4) refersto the assignment of a teacher to a particular class, not a set of classes such as summer school. Additionally, the dissenters contended that summer school is a distinct set of programs offeredduring a separate period of time and appointment to teach this set of programs is a separate hiringdecision. The decision to select a teacher to teach summer school is a decision to employ ateacher in a position rather than assign him or her work. Thus, the dissenters argued, thegrievances concerned employment decisions, not matters of "class staffing and assignment." TheUnion then filed these timely appeals, which were consolidated in this court upon the IELRB'smotion.

An administrative agency's findings of fact are deemed to be prima facie true and correctand will not be reversed unless they are against the manifest weight of the evidence. City ofBelvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 205, 692 N.E.2d 295, 302(1998). However, an administrative agency's findings on questions of law are reviewed de novoand are not binding on a reviewing court. City of Belvidere, 181 Ill. 2d at 205, 692 N.E.2d at302. Where the agency's findings present a mixed question of law and fact, we apply the clearlyerroneous standard of review. AFM Messenger Service, Inc. v. Department of EmploymentSecurity, 198 Ill. 2d 380, 392, 763 N.E.2d 272, 280 (2001). Under this standard, "the agencydecision will be deemed 'clearly erroneous' only where the reviewing court, on the entire record,is 'left with the definite and firm conviction that a mistake has been committed.'" AFMMessenger Service, Inc., 198 Ill. 2d at 395, 763 N.E.2d at 282, quoting United States v. UnitedStates Gypsum Co., 333 U.S. 364, 395, 92 L. Ed. 746, 766, 68 S. Ct. 525, 542 (1948). While thisstandard is largely deferential to the agency, this does not mean "that a reviewing court mustblindly defer to the agency's decision." AFM Messenger Service, Inc., 198 Ill. 2d at 395, 763N.E.2d at 282.

In the present case, the IELRB's decision presents a mixed question of law and fact, one"involv[ing] an examination of the legal effect of a given set of facts." City of Belvidere, 181 Ill.2d at 205, 692 N.E.2d at 302. "Stated another way, a mixed question is one 'in which thehistorical facts are admitted or established, the rule of law is undisputed, and the issue is whetherthe facts satisfy the statutory standard, or * * * whether the rule of law as applied to theestablished facts is or is not violated.'" AFM Messenger Service, Inc., 198 Ill. 2d at 390, 763N.E.2d at 279, quoting Pullman-Standard v. Swint, 456 U.S. 273, 289 n.19, 72 L. Ed. 2d 66, 80n.19, 102 S. Ct. 1781, 1790 n.19 (1982). Here, the issue mainly concerns the application of thestatutory interpretation of section 4.5(a)(4) of the Act to the facts, and thus, we apply the clearlyerroneous standard of review.

As discussed above, the issue in this case concerns the interpretation and application ofthe term "class staffing and assignment" in section 4.5(a)(4) of the Act. 115 ILCS 5/4.5(a)(4)(West 1996). While all of the parties advanced various interpretations of this term in their briefs,they conceded at oral argument that this court's interpretation in Chicago School Reform Boardof Trustees v. Illinois Educational Labor Relations Board, 315 Ill. App. 3d 522, 734 N.E.2d 69(2000), is correct and controlling. In Chicago School Reform Board of Trustees, this courtanalyzed the language contained in section 4.5(a)(4) of the Act and determined that the word"class" modified both "staffing" and "assignment." The court interpreted "class staffing andassignment" to mean how a class is staffed (i.e., one teacher, two teachers working as a team,etc.) or what class is assigned to a particular teacher. Chicago School Reform Board of Trustees,315 Ill. App. 3d at 530-31, 734 N.E.2d at 75-76. Thus, the court distinguished betweengrievances relating to retention, whether a person has a job or should have a job, and grievancesrelating to the assignment of teachers or classes.

An examination of two recent decisions illustrates this distinction. In Chicago SchoolReform Board of Trustees, the Union requested information from the Board of Educationconcerning the procedures and criteria it used when determining which teachers would beretained after several schools were reconstituted. The Union sought this information to evaluateclaims that the Board of Education's decision not to retain several teachers was motivated bydiscrimination on the basis of race, age or union membership. Chicago School Reform Board ofTrustees, 315 Ill. App. 3d at 525, 734 N.E.2d at 71-72. When the Board of Education failed torespond to this request, the Union filed several grievances, alleging that the Board of Educationviolated the nondiscrimination provisions of the collective bargaining agreement by not retainingthree teachers. The court found that the grievances involved questions of retention anddiscrimination and related to the decision whether to retain the grievants as employees, not tohow a class is staffed or what class a particular teacher is assigned to teach. Chicago SchoolReform Board of Trustees, 315 Ill. App. 3d at 530-31, 734 N.E.2d at 75-76.

In contrast, a recent decision of the IELRB explains decisions that fall within "classstaffing and assignment." In Chicago Teachers Union Local 1, 18 Pub. Employee Rep. (Ill.), par.1013, No. 2000-CA-0042-C (IELRB November 16, 2001), the Union filed a grievance allegingthat the Board of Education violated the collective bargaining agreement by not honoring teacherJodi Greenburg's preference to remain in her position teaching pre-kindergarten. Instead, thegrievance alleged, the Board of Education assigned Greenburg to teach second grade andassigned a less senior and less qualified teacher to the pre-kindergarten class. The IELRBexplained that it "has found that a grievance involves 'class staffing and assignment' when thecomplainant contests a particular staffing assignment, lack of assignment or when the educationalemployer refuses to comply with an arbitrator's award ordering it to place the employee in aparticular teaching position." Chicago Teachers Union Local 1, 18 Pub. Employee Rep. (Ill.),par. 1013, No. 2000-CA-0042-C (IELRB November 16, 2001). Therefore, the IELRBdetermined that the instant grievance contested a teacher's assignment to a particular class orposition and thus, involved issues of "class staffing and assignment."

Based on this court's interpretation of "class staffing and assignment" and the distinctionbetween these cases, we find that the grievances in this consolidated appeal concerning the Boardof Education's failure to select several teachers to teach summer school classes did not involvematters of "class staffing and assignment." The issue of whether one has a job is different fromthe issue of which class one is assigned to teach. These grievances did not concern how a class isstaffed (i.e., one teacher, two teachers working as a team, etc.) or what class is assigned to aparticular teacher nor did they contest a particular staffing assignment or lack of assignment. Rather, the grievances involved whether to hire these teachers for additional employment duringthe summer. These grievances concerned the general issue of employment in summer schoolrather than the more specific topic of assignment to a particular class.

Whether a teacher is employed during a period of time, such as the summer, is a differentissue from which class she is assigned to teach. Once a teacher is employed to teach summerschool, the decision as to which class she will teach that summer would be a matter of classstaffing and assignment. Thus, if Trottman, Banks, Clark or Pimentel had been employed toteach the summer session and assigned to teach a specific class, any grievance that she shouldhave been assigned to another summer school class would concern class assignment and fallwithin section 4.5(a)(4). However, the grievances filed in this consolidated appeal concernedonly whether Trottman, Banks, Clark and Pimentel would be chosen to work summer school.

We recognize that the cases in which this court and the IELRB have applied section4.5(a)(4) and found the grievances did not involve matters of "class staffing and assignment" allconcern permanent employment decisions regarding retention or termination of employees. However, we find this distinction to be irrelevant. In this case, the grievances involved the Boardof Education's failure to hire Trottman, Clark, Banks and Pimentel for the summer session. Although they retained their positions as Board of Education employees during the regular schoolyear, they sought the ability to obtain additional work, and earn extra compensation, during thesummer. Appointment to summer school classes is not merely an opportunity for teachers whoare already employed to teach additional courses, as the IELRB suggests, but an opportunity toearn an additional salary by working a second job.

We find that the grievances in this case concerned employment issues and did not involvematters of "class staffing and assignment" under section 4.5(a)(4) of the Act. The arbitrationawards did not conflict with the Act and, thus, were binding. Therefore, we hold that theIELRB's findings that the Board of Education did not violate section 14(a)(8) and, derivatively,section 14(a)(1) of the Act by failing to comply with the arbitration awards were clearlyerroneous. Accordingly, the decisions of the Illinois Educational Labor Relations Board arereversed and we remand for further proceedings.

Reversed and remanded.

GREIMAN, J., concurs.

JUSTICE HARTMAN dissents:

From the majority's finding that the grievances in this case concerned employment issuesrather than class staffing and assignment under section 4.5(a)(4) of the Illinois Educational LaborRelations Act, 115 ILCS 5/4.5(a)(4) (West 1996), I must respectfully dissent for the reasons thatfollow.

For its summer agenda of 1998, Barton Elementary School offered two programs: theSocial Center Program, a recreation program intended to keep children occupied during thesummer months, in which students receive one hour of tutoring and two hours of recreation eachday; and the Bridge Program, in which students in grades three, six and eight, who have failed toadvance to the next grade level, take classes in the summer in an attempt to catch up on the skillsthey are missing. It is important to recognize that no regular summer school program was offeredat Barton in the summer of 1998.

Summer Bridge Programs were offered not only at Barton, but also at other ChicagoPublic Schools. In fact, three Barton teachers taught in Bridge Programs at schools other thanBarton in 1998. Six or seven Bridge Program positions were available at Barton for the summerof 1998. Evidence was adduced at the hearings that applications for employment at theseprograms were placed in every Barton teacher's box, the union representative's box and theengineer's box prior to selection. More applications were received than positions available. There was evidence that no applications were received from any of the grievants prior to thecompletion of the selection process. The Social Center positions, however, initially were notcompletely filled at Barton. The record shows no applications by the grievants for thesepositions. Recruitment calls had to be made and two teachers were hired from outside Barton forthose positions.

If this case was about employment, "the ability to obtain additional work and earn extracompensation, during the summer, ***" and "an opportunity to earn an additional salary byworking a second job," as found by the majority in its conclusion, there appears to have beenopenings at Barton for such employment in the summer of 1998, in the Bridge Program whichthe grievants failed to seek timely, and in the Social Center Program, which the grievants failedto seek at all. Clearly, the grievants here were not just seeking summer employment, but staffplacement or assignment to a specific class, the Bridge Program, which was not within theirprerogatives, nor was it arbitrable under section 4.5(a)(4).

I would affirm.