Originally from Dispute Resolution Journal

TEACHER GRIEVANCE — ILLINOIS SCHOOL CODE §24-9 [ILL. REV. STAT. CH. 122 (1971)1 — RESTRICTIVE LANGUAGE IN ARBITRATION AGREEMENT — ILL. REV. STAT. CH. 10 §112(e) (1971) — PARTICIPATION IN ARBITRATION NO WAIVER

In vacating an arbitrator's award on the ground that the arbitrator had exceeded his authority, the court held that the Illinois School Code provision which had allegedly been violated was independent of the collective bargaining agreement and therefore presented a dispute that was not arbitrable under the agreement. The Illinois School Code §24-9 provided that "Every teacher in any school house where two or more teachers are employed whose duties require attendance at the school for four or more clock hours in any school day shall be entitled to and be allowed a duty free lunch period equal to the regular local school lunch period but net less than 30 minutes in each school day." When the Board of Education gave children between 50 minutes to 1 hour between their morning and afternoon sessions, the teachers continued to have a 30 minute duty free lunch period. The time in excess of the children's usual 30 minute lunch period was to be utilized for various extra-curricular functions. The Teachers Association sought arbitration and the arbitrator's award found that the issue was arbitrable and that the Board's action was in violation of the agreement since certain rights granted to the teachers under the School Code had been denied or restricted. The court reasoned that the award was based upon an alleged violation of the School Code but not upon a violation of the contract. The court stated that an alleged violation of the School Code did not constitute a "grievance" within the meaning of the agreement and was therefore not arbitrable. Nor did the fact that the Board participated in arbitration act as a waiver of a right to challenge the award where the Board stated its objection to the arbitrability of the matter from the beginning. The court cited American Baking & Confectionery Workers v. National Biscuit Co., 378 F.2d 918 (3d a r . 1967) for the proposition that a timely objection to arbitrability preserves the right to challenge the award after participating in the arbitration proceedings. The Association argued that the Board got a "second bite at the apple" by simply raising the objection on arbitration and awaiting the outcome instead of challenging arbitrability under §102(b) of the Illinois Uniform Arbitration Act. The court replied by quoting the language in School District No. 46 v. DelBianco, 68 111. App. 2d 145, 155, 215 N.E.2d 25: "Where there is an agreement to arbitrate and its scope is reasonably in doubt, the issue of arbitrability should be initially determined by the arbitrators, subject to the protective reservations of §12 of the Act — under which the court; may vacate an award under the varying conditions therein specified."

Board of Education of Community Unit School District No. 4, Champaign County, Illinois v. Champaign Education Association, 304 N.E.2d 138 (111. 1973).