{ "id": 3158880, "name": "LOUIS J. McKENNA et al., Plaintiffs-Appellants, v. THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS et al., DefendantsAppellees", "name_abbreviation": "McKenna v. Board of Trustees of University of Illinois", "decision_date": "1980-11-25", "docket_number": "No. 79-1850", "first_page": "992", "last_page": "999", "citations": [ { "type": "official", "cite": "90 Ill. App. 3d 992" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "387 N.E.2d 810", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "69 Ill. App. 3d 477", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3237738 ], "pin_cites": [ { "page": "483" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/69/0477-01" ] }, { "cite": "387 N.E.2d 258", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "74 Ill. 2d 541", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2994664 ], "pin_cites": [ { "page": "550-51" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/74/0541-01" ] }, { "cite": "326 N.E.2d 737", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "60 Ill. 2d 350", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5415144 ], "pin_cites": [ { "page": "358" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/60/0350-01" ] }, { "cite": "334 N.E.2d 313", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "31 Ill. App. 3d 278", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2711002 ], "pin_cites": [ { "page": "281" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/31/0278-01" ] }, { "cite": "157 N.E.2d 38", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "16 Ill. 2d 169", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2761285 ], "year": 1975, "pin_cites": [ { "page": "174" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/16/0169-01" ] }, { "cite": "46 N.E.2d 951", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "382 Ill. 321", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2479565 ], "pin_cites": [ { "page": "343" } ], "opinion_index": 0, "case_paths": [ "/ill/382/0321-01" ] }, { "cite": "406 N.E.2d 173", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "85 Ill. App. 3d 208", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3195235 ], "weight": 3, "pin_cites": [ { "page": "213" }, { "page": "214" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/85/0208-01" ] } ], "analysis": { "cardinality": 651, "char_count": 15285, "ocr_confidence": 0.897, "pagerank": { "raw": 8.879979712987084e-08, "percentile": 0.4993098053206963 }, "sha256": "a2df65c73de43a2b8cad713f531d00d6bbde24a9cc4c4c68b87427fede0ced6f", "simhash": "1:b883b6f3a17a4e73", "word_count": 2360 }, "last_updated": "2023-07-14T22:48:32.356040+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "LOUIS J. McKENNA et al., Plaintiffs-Appellants, v. THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS et al., DefendantsAppellees." ], "opinions": [ { "text": "Mr. JUSTICE DOWNING\ndelivered the opinion of the court:\nFour nonacademic employees at the University of Illinois Medical Center campus brought this action seeking declaratory and injunctive relief from their employer\u2019s redesignation of their wage rate classification. Defendants filed a section 45 motion to dismiss (Ill. Rev. Stat. 1977, ch. 110, par. 45), alleging plaintiffs failed to state a cause of action. After argument of counsel, the circuit court granted defendants\u2019 motion.\nPlaintiffs ask this court to determine (1) whether the trial court erred when it ruled that the parties fell without the scope of \u201cAn Act in relation to the rate of pay for State employees who are not subject to the \u2018Personnel Code\u2019 \u201d (Ill. Rev. Stat. 1975, ch. 127, par. 391) (the Pay Act); (2) whether it was error to rule that the University Civil Service System Act (Ill. Rev. Stat. 1975, ch. 24\u00bd, par. 38b 1 et seq.) (the System Act) permitted the redesignation of plaintiffs\u2019 wage rate classification; (3) whether the redesignation of that classification violated a provision of the University\u2019s Policy and Rules \u2014 Non-Academic (Policy & Rules); (4) whether plaintiffs are bound by the terms of their collective bargaining agreement; and (5) whether plaintiffs failed to exhaust their administrative remedies.\nThe pleadings contain the following allegations. Plaintiffs Louis J. McKenna, Nick Krukoff, Dominic Cavaliere, and Charles Velkoborsky are employed as construction laborers by defendant Board of Trustees of the University of Illinois (the Trustees). The Trustees have direct responsibility for administration of nonacademic personnel including plaintiffs. This responsibility includes collective bargaining negotiation with employee group representatives. The results of any such negotiation are subject to approval by defendant Donald Ward, the director of personnel services at the university. The general terms and conditions of employment, however, are governed by the System Act. That act establishes defendant University Civil Service System Merit Board (the Merit Board). The recommendations of both the Trustees and Ward are subject to the Merit Board\u2019s approval.\nOn January 1,1952, construction laborers were compensated according to the prevailing rate of wage paid to local private sector employees who were engaged in work of a similar character. Those employed as construction laborers at the Medical Center campus received wages according to a prevailing rate tied to the wage scale contained in the collective bargaining agreement governing Local No. 6 of the International Hod Carriers and Building Construction Laborers Union. In 1965, the Merit Board redesignated construction laborers from \u201cprevailing rate of wage\u201d employees to negotiated rate of wage employees. University construction laborers, however, continued to receive a wage tied to the prevailing rate until sometime in late 1976 or early 1977. In April of 1977, plaintiffs\u2019 collective bargaining agreement effected a retroactive discontinuance of the compensation which paralleled the local union\u2019s agreement. The Merit Board thereafter approved a negotiated rate of pay. Wages under the negotiated rate were less than wages that would have been paid under the prevailing rate of wage. After plaintiffs were informed of the redesignation, they filed the instant complaint.\nThe first count of plaintiffs\u2019 complaint alleges defendants\u2019 approval of the lesser, negotiated wage violated the Policy & Rules, which prohibit elimination of established practices relating to conditions of employment. Count two alleges the Merit Board violated the System Act when it failed to notify plaintiffs of its redesignation of their wage classification. Count three claims the redesignation contravenes the System Act, while count four asserts defendants\u2019 payment of a negotiated rate of compensation is in violation of the Pay Act (Ill. Rev. Stat. 1975, ch. 127, par. 391).\nThe trial court granted defendants\u2019 motion to dismiss after it found as follows: that the System Act, but not the Pay Act, governs plaintiffs\u2019 employment by defendants; that plaintiffs had been prevailing rate of wage employees who were subject to the negotiation provisions of the System Act; that plaintiffs\u2019 terms and conditions of employment were changed by negotiation through their duly authorized bargaining agent; that plaintiffs were bound by that agent\u2019s acts; and finally, that plaintiffs failed to exhaust their administrative remedies.\nI.\nPlaintiffs first contend they are entitled to receive compensation according to the prevailing rate of wage because the Pay Act requires that result. That statute provides as follows:\n\u201cWhenever any State * * * authority * * * employs an individual in a * * * position of such a character as would be subject to rules or regulations of the Department of Personnel requiring the payment of the prevailing rate of wages to those holding such a position * * * if that employment were subject to the \u2018Personnel Code,\u2019 the State * * * authority shall pay that individual at the prevailing rate, notwithstanding the nonapplicability of the \u2018Personnel Code.\u2019 \u201d (Ill. Rev. Stat. 1975, ch. 127, par. 391.)\nIt is uncontested that if plaintiffs were subject to the Personnel Code they would be compensated at the prevailing rate of wage. Section 4c(9) of the Personnel Code specifically exempts plaintiffs from its applicability. (Ill. Rev. Stat. 1977, ch. 127, par. 63bl04c(9).) Plaintiffs argue that the Pay Act therefore mandates payment of them at the prevailing rate of wage. We disagree.\nThe trial judge correctly ruled that the Pay Act does not apply to defendants. In Decker v. University Civil Service System Merit Board (1980), 85 Ill. App. 3d 208, 406 N.E.2d 173, the court considered arguments identical to those advanced here. That court held, in a well-reasoned opinion, the University of Illinois was not an agency of the State within the meaning of the Pay Act. (85 Ill. App. 3d 208, 213.) It also held application of the Pay Act to the university would impliedly repeal a provision of the System Act. Consistent interpretation of both statutes could be made only if the more general provisions of the Pay Act were held not to apply to the university. The court concluded that the provisions of the System Act governed University of Illinois nonacademic employees. (85 Ill. App. 3d 208, 214; see also People ex rel. Board of Trustees v. Barrett (1943), 382 Ill. 321, 343, 46 N.E.2d 951.) We adopt the rationale of Decker and, accordingly, hold the Pay Act does not apply to the instant parties. Plaintiffs\u2019 count four fails to state a cause of action.\nII.\nA.\nPlaintiffs contend in the alternative that if the Pay Act is inapplicable, the System Act provides that \u201c[t]he Merit Board shall direct the payment of the \u2018prevailing rate of wages\u2019 \u201d to them. (Ill. Rev. Stat. 1975, ch. 24\u00bd, par. 38b3(3).) Plaintiffs argue that the language \u201cshall direct\u201d is mandatory and, thus, prohibits the Merit Board\u2019s redesignation of their wage status.\nDefendants respond that the System Act grants the Merit Board authority to change rates and ranges of compensation; that plaintiffs agreed to change their compensation status through their collective bargaining agent; and that the resulting rate of compensation is binding upon plaintiffs.\nThe System Act provides that rates of compensation may be negotiated. Our reading of the statute is governed by the rule that \u201c[i]n construing a statute where the same, or substantially the same, words or phrases appear in different parts of the same statute they will be given a generally accepted and consistent meaning, where the legislative intent is not clearly expressed to the contrary.\u201d (Moran v. Katsinas (1959), 16 Ill. 2d 169, 174, 157 N.E.2d 38; Baker v. Salomon (1975), 31 Ill. App. 3d 278, 281, 334 N.E.2d 313.) The word \u201crate\u201d appears in different parts of the provision at issue without a clear expression of legislative intent to denote inconsistent meanings. We read the word \u201crate\u201d as used in \u201cprevailing rate of wages\u201d consistently with its use in \u201crate of compensation.\u201d The plain meaning of the provision is that although the Merit Board must initially compensate certain employees at the prevailing rate of wages, subsequent negotiations on behalf of those employees are permitted. Those negotiations can result in an agreed-to change in the rate of compensation. The negotiated rate of wages is then subject to Merit Board approval in accordance with procedural safeguards. After such approval, the System Act requirements are satisfied and the agreed-to compensation is proper.\nB.\nCount three of plaintiffs\u2019 complaint alleges defendants\u2019 redesignation of their wage status is violative of the System Act and therefore ineffective. Our understanding of the plain meaning of the act compels rejection of this allegation, and we therefore hold that count three of plaintiffs\u2019 complaint fails to state a cause of action.\nIII.\nThe first count in plaintiffs\u2019 complaint alleges the Merit Board\u2019s re-designation of the construction laborers\u2019 compensation status violated University Policy & Rules. That count was properly dismissed. The Policy & Rules prohibit establishment of negotiated conditions of employment if the result is elimination of historically established customs or practices relating to conditions of employment. It also provides, however, that such customs or practices may be eliminated if specifically provided for otherwise. As discussed in section II above, the System Act provides for change in compensation rates where negotiation for, agreement on, and approval of such changes satisfy the act\u2019s requirements. Changes in compensation rates, by negotiation, are specifically provided for in the act and therefore permitted as being without the prohibition of the Policy & Rules. The trial court properly dismissed this count.\nIV.\nThe trial court ruled plaintiffs were bound by their collective bargaining agreement which provided for a negotiated compensation rate. On appeal plaintiffs contend the agreement is not binding because it deprives them of a statutory benefit. We have held above, however, that neither the Policy & Rules nor the acts cited to us establish a permanent, nonnegotiable entitlement to employment at the prevailing rate of wages. Thus, plaintiffs\u2019 collective agreement does not deprive them of a statutory benefit.\nV.\nThe trial court also ruled plaintiffs failed to exhaust their administrative remedies. Defendants did not raise this issue in their motion to dismiss. Nevertheless, it is proper to dismiss an action, sua sponte, where a party fails to pursue, first, all administrative remedies available to him. (Illinois Bell Telephone Co. v. Allphin (1975), 60 Ill. 2d 350, 358, 326 N.E.2d 737.) Exceptions to the doctrine have been recognized: exhaustion is not required where a statute is attacked as unconstitutional, where irreparable harm will result from further pursuit of administrative remedies (see generally Illinois Bell Telephone Co. v. Allphin), where no question of fact is presented and agency expertise is not involved, or where pursuit of a remedy is futile. (See generally Landfill, Inc. v. Pollution Control Board (1978), 74 Ill. 2d 541, 550-51, 387 N.E.2d 258.) The instant issues are not dependent for their resolution upon questions of fact. The issues presented are ones of statutory or rule interpretation. Plaintiffs\u2019 allegation of no chance of success before the Merit Board, when combined with the nature of the issues present, renders compliance with the exhaustion doctrine unnecessary. (See, e.g., Landfill, Inc. v. Pollution Control Board; Illinois Bell Telephone Co. v. Allphin.) The trial court had jurisdiction to hear plaintiffs\u2019 action. See also Miller v. Department of Public Aid (1979), 69 Ill. App. 3d 477, 483, 387 N.E.2d 810.\nIn accordance with the reasons expressed herein, we affirm the trial court\u2019s dismissal of plaintiffs\u2019 complaint for failure to state a cause of action.\nAffirmed.\nPERLIN, P. J., and STAMOS, J., concur.\nThe System Act provides, inter alia, that the Merit Board shall have the power and duty:\n\u2018\"To prescribe the range of compensation for each class or to fix a single rate of compensation for employees in a particular class; and to establish other conditions of employment which an employer and employee representatives have agreed upon as fair and equitable. The Merit Board shall direct the payment of the \u2018prevailing rate of wages\u2019 in those classifications in which, on January 1, 1952, any employer is paying such prevailing rate and in such other classes as the Merit Board may thereafter determine. \u2018Prevailing rate of wages\u2019 as used herein shall be the wages paid generally in the locality in which the work is being performed to employees engaged in work of a similar character. Each employer covered by the University System shall be authorized to negotiate with representatives of employees to determine appropriate ranges or rates of compensation or other conditions of employment and may recommend to the Merit Board for establishment the rates or ranges or other conditions of employment which the employer and employee representatives have agreed upon as fair and equitable. Any rates or ranges established prior to January 1, 1952, \u00e1nd hereafter, shall not be changed except in accordance with the procedures herein provided.\u201d (Emphasis added.) (Ill. Rev. Stat. 1975, ch. 24\u00bd, par. 38b3(3).)\nWe note that even if the word \u201crate\u201d were used inconsistently the System Act\u2019s negotiation provisions authorize change of conditions of employment. Employment as a prevailing rate of wages employee is but one condition of employment that may be changed pursuant to such negotiation. Accordingly, inconsistent denotations of \u201crate\u201d would not alter our holding.\nThe trial court also dismissed count two of the instant complaint which alleges defendants\u2019 failure to disclose the redesignation is violative of the System Act. Plaintiffs do not contest that dismissal here. Therefore, we do not address ourselves to it.\nChapter V, section ld(3) of the Policy and Rules \u2014 Non-Academic, University of Rlinois (1976), provides in part as follows:\n\u201cNothing in these rules or in the provisions of the University Civil Service System of Illinois statute requiring University Civil Service System Merit Board \u2018establishment\u2019 of \u2018negotiated conditions of employment\u2019 will be construed to eliminate any existing historically established customs and practices relating to conditions of employment unless specifically provided otherwise.\u201d (Emphasis added.)", "type": "majority", "author": "Mr. JUSTICE DOWNING" } ], "attorneys": [ "Baum, Sigman & Gold, Ltd., of Chicago (Bernard M. Baum and Elizabeth H. Seidman, of counsel), for appellants.", "Follmer, West & Erdmann, of Champaign, for appellee University Civil Service Merit Board of the State Universities Civil Service System.", "Robert H. Joyce and Edward J. Karlin, both of Chicago, and James J. Costello, of Urbana (Seyfarth, Shaw, Fairweather & Geraldson, of counsel), for appellees Board of Trustees of the University of Illinois and Donald Ward." ], "corrections": "", "head_matter": "LOUIS J. McKENNA et al., Plaintiffs-Appellants, v. THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS et al., DefendantsAppellees.\nFirst District (2nd Division)\nNo. 79-1850\nOpinion filed November 25, 1980.\nBaum, Sigman & Gold, Ltd., of Chicago (Bernard M. Baum and Elizabeth H. Seidman, of counsel), for appellants.\nFollmer, West & Erdmann, of Champaign, for appellee University Civil Service Merit Board of the State Universities Civil Service System.\nRobert H. Joyce and Edward J. Karlin, both of Chicago, and James J. Costello, of Urbana (Seyfarth, Shaw, Fairweather & Geraldson, of counsel), for appellees Board of Trustees of the University of Illinois and Donald Ward." }, "file_name": "0992-01", "first_page_order": 1014, "last_page_order": 1021 }