Board of Education of the City of Chicago v. Illinois Educational Labor Relations Board , 2015 IL 118043 ( 2016 )

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Supreme Court Date: 2016.01.22 09:56:19
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Board of Education of the City of Chicago v. Illinois Educational Labor Relations Board,
2015 IL 118043Caption in Supreme THE BOARD OF EDUCATION OF THE CITY OF CHICAGO,
Court: Appellee, v. THE ILLINOIS EDUCATIONAL LABOR
RELATIONS BOARD et al., Appellants.
Docket No. 118043, 118072 cons.
Filed December 17, 2015
Decision Under Appeal from the Appellate Court for the First District; heard in that
Review court on a petition for review of an order of the Illinois Educational
Labor Relations Board.
Judgment Affirmed and remanded.
Counsel on Kurtis R. Hale, of Poltrock & Poltrock, Robert Bloch, of Dowd,
Appeal Bloch, Bennett and Cervone, and Graham Hill and Thaddeus
Goodchild, all of Chicago, for appellant Chicago Teachers Union.
Lisa Madigan, Attorney General, of Springfield (Carolyn E. Shapiro,
Solicitor General, and Sharon A. Purcell, Assistant Attorney General,
of Chicago, of counsel), for appellants Illinois Educational Labor
Relations Board et al.
James L. Bebley and Lee Ann Lowder, of Chicago, for appellee.
Justices JUSTICE FREEMAN delivered the judgment of the court, with
opinion.
Chief Justice Garman and Justices Thomas, Karmeier, Burke, and
Theis concurred in the judgment and opinion.
Justice Kilbride dissented, with opinion.
OPINION
¶1 The Chicago Teachers Union, Local 1, IFT-AFT, AFL-CIO (Union), filed an unfair labor
practice charge with the Illinois Educational Labor Relations Board (IELRB) against the
Board of Education of the City of Chicago (Board). The Union alleged that the Board violated
section 14(a)(1) of the Illinois Educational Labor Relations Act (Act) (115 ILCS 5/14(a)(1)
(West 2010)) by refusing to arbitrate grievances. The IELRB found that the Board had violated
the Act. On direct administrative review, a divided panel of the appellate court reversed the
IELRB’s decision. 2014 IL App (1st) 130285.
¶2 This court allowed the Union’s and the IELRB’s separate petitions for leave to appeal (Ill.
S. Ct. R. 315 (eff. Jan. 1, 2015)) and consolidated the causes for review. We now affirm the
judgment of the appellate court and remand to the IELRB for further proceedings.
¶3 I. BACKGROUND
¶4 The appellate court adequately recited the stipulated facts. We need not repeat those details
here. As defined in the Act, the Board is an educational employer (115 ILCS 5/2(a) (West
2010)), and the Union is an employee organization (115 ILCS 5/2(c) (West 2010)) that is an
exclusive representative (115 ILCS 5/2(d) (West 2010)) of a bargaining unit of the Board’s
employees that includes teachers. The Board and the Union were parties to a collective
bargaining agreement (CBA) in effect from 2007 to 2012. The CBA established a grievance
procedure that culminated in final and binding arbitration.
¶5 In June 2010, the Board notified the Union of a new policy. The Board was going to
designate as ineligible for rehire nonrenewed probationary appointed teachers (PATs) who
have been nonrenewed twice or who have been given an unsatisfactory performance rating. At
the end of the 2009-10 school year, the Board began implementing this policy by placing in the
personnel files of such PATs a “Do Not Hire” (DNH) designation.
¶6 The Union timely presented to the Board four grievances and demanded arbitration. Three
of the grievances were on behalf of individual PATs and one was on behalf of all PATs. The
Board had notified all of the individual PATs that they were being nonrenewed with the
Chicago Public Schools for the following school year but did not inform them that it had
placed a DNH designation in their personnel files. The grievances alleged that the Board’s
DNH policy violated various sections of the CBA.
¶7 In the individual grievances, the Union requested the Board, respectively, to restore two
grievants to their teaching positions at particular schools and to allow the third grievant to seek
a Chicago Public Schools position for which she qualifies. In the collective grievance, the
Union requested that the Board: cease the practice of placing DNH designations in union
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members’ files if the terminations were not for cause; remove union members from the DNH
list; notify all union members in writing who have received a DNH designation; give the Union
a list of all Union members on the DNH list; allow all Union members to seek employment
within the Chicago Public Schools; and “[d]iscuss any and all changes that affect the working
conditions and employment status” of union members with the Union.
¶8 The Board notified the Union that it refused to arbitrate the grievances, which the Board
viewed as an attempt by the Union to require the Board to hire persons whom the Board did not
believe it should hire. The Board claimed that the subject matter of the grievances was
excluded from arbitration because Board hiring decisions were exclusive management rights.
¶9 The Union filed an unfair labor practice charge with the IELRB against the Board. The
Union alleged that the Board violated section 14(a)(1) of the Act by refusing to arbitrate the
grievances. The executive director of the IELRB investigated the Union’s charge and issued a
complaint. See 115 ILCS 5/15 (West 2010). In lieu of a hearing before an administrative law
judge (ALJ), the parties filed a stipulated record. An ALJ ordered that the case be removed to
the IELRB based on her certification that there were no determinative issues of fact requiring
an ALJ’s recommended decision. In a written opinion and order, the IELRB found that,
pursuant to the Act and the CBA, the Board had a duty, upon the Union’s request, to arbitrate
the DNH grievances and, by refusing to do so, the Board violated section 14(a)(1) of the Act.
The IELRB ordered the Board to arbitrate the grievances and to grant other relief requested by
the Union.
¶ 10 On direct administrative review, a divided panel of the appellate court reversed the
IELRB’s decision. 2014 IL App (1st) 130285. Reviewing the IELRB’s decision de novo, the
appellate court concluded that the Board was contractually and statutorily not obligated to
arbitrate the grievances and, therefore, held that the IELRB erred in finding that the Board
violated section 14(a)(1) of the Act. Id. ¶ 44. The dissenting justice would have confirmed the
IELRB’s decision, concluding that the grievances were arbitrable. Id. ¶ 69 (Gordon, P.J.,
dissenting). The Union and the IELRB each appeals to this court.
¶ 11 II. ANALYSIS
¶ 12 Before this court, the Union and the IELRB contend that the Board is obligated under the
CBA to arbitrate the grievances. The Board contends that it has a managerial right over hiring
decisions that is contractually and statutorily excluded from arbitration.
¶ 13 A. Standard of Review
¶ 14 At the outset, the parties disagree on the appropriate standard of review. On administrative
review, our role is to review the decision of the administrative agency, here the IELRB, and not
the determination of the appellate court. See Wade v. City of North Chicago Police Pension
Board, 226 Ill. 2d 485, 504 (2007). The Act provides that a final order of the Board is subject to
judicial review pursuant to the Administrative Review Law (735 ILCS 5/3-101 et seq. (West
2010)), taken directly to the appellate court. 115 ILCS 5/16(a) (West 2010). Under the
Administrative Review Law, the scope of judicial review extends to all questions of law and
fact presented by the record before the court. 735 ILCS 5/3-110 (West 2010). The applicable
standard of review, which determines the degree of deference given to the agency’s decision,
depends on whether the issue presented is a question of law, fact, or a mixed question of law
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and fact. AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380,
390 (2001).
¶ 15 An agency’s conclusion on a question of law is reviewed de novo. A reviewing court is not
bound by an agency’s interpretation of a statute. Cinkus v. Village of Stickney Municipal
Officers Electoral Board, 228 Ill. 2d 200, 210-11 (2008). However, the agency’s interpretation
remains relevant where there is a reasonable debate about the meaning of the statute.
Harrisonville Telephone Co. v. Illinois Commerce Comm’n, 212 Ill. 2d 237, 247 (2004). In
contrast, “The findings and conclusions of the administrative agency on questions of fact shall
be held to be prima facie true and correct.” 735 ILCS 5/3-110 (West 2010). Accordingly, when
a court reviews an agency’s factual findings, the court will not reweigh the evidence or
substitute its judgment for that of the agency. Rather, the court simply determines whether the
findings of fact are against the manifest weight of the evidence. American Federation of State,
County & Municipal Employees, Council 31 v. Illinois State Labor Relations Board, State
Panel, 216 Ill. 2d 569, 577 (2005).
¶ 16 A mixed question of law and fact asks the legal effect of a given set of facts. In resolving a
mixed question of law and fact, a reviewing court must determine whether established facts
satisfy applicable legal rules. An agency’s conclusion on a mixed question of law and fact is
reviewed for clear error. A decision is “clearly erroneous” when the reviewing court is left with
the definite and firm conviction that a mistake has been committed. AFM Messenger, 198 Ill.
2d at 391-95.
¶ 17 Before this court, the Union and the Board agree that the appropriate standard of review is
de novo because there are no determinative issues of fact and the IELRB only considered legal
issues. For this reason, the appellate court reviewed the IELRB’s decision de novo. 2014 IL
App (1st) 130285, ¶ 19. However, the IELRB contends that the clearly erroneous standard of
review is appropriate because this case presents mixed questions of law and fact.
¶ 18 We agree with the IELRB that the clearly erroneous standard of review is appropriate. The
written order of the ALJ found that there were no questions of fact, and the IELRB decided the
Union’s complaint solely on the legal issues presented. However, mixed questions of fact and
law are “ ‘questions in which the historical facts are admitted or established, the rule of law is
undisputed, and the issue is whether the facts satisfy the statutory standard, or to put it another
way, whether the rule of law as applied to the established facts is or is not violated.’ ”
American Federation of State, County & Municipal Employees, 216 Ill. 2d at 577 (quoting
Pullman-Standard v. Swint, 456 U.S. 273, 289 n.19 (1982)). Review for clear error is
significantly deferential to an agency’s experience in construing and applying the statute that it
administers. AFM Messenger, 198 Ill. 2d at 393-95. This court has recognized that
“[d]etermination of whether specific issues are mandatorily bargainable or not is best left to the
IELRB, which has the knowledge and experience to balance the equities in a given case.
However, our legislature has placed guidelines in the Act as to what should, and should not be
bargained.” Central City Education Ass’n v. Illinois Educational Labor Relations Board, 149
Ill. 2d 496, 522 (1992). The main issue on review from the IELRB involves the application of
the correct statutory interpretation of the Act to the facts. Accordingly, we apply the clearly
erroneous standard of review. See City of Belvidere v. Illinois State Labor Relations Board,
181 Ill. 2d 191, 205 (1998); Chicago Teachers Union v. Illinois Educational Labor Relations
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Board, 334 Ill. App. 3d 936, 942 (2002).
¶ 19 B. Arbitrability of Grievances
¶ 20 Under section 14(a)(1) of the Act, “Educational employers, their agents or representatives
are prohibited from *** [i]nterfering, restraining or coercing employees in the exercise of the
rights guaranteed under this Act.” 115 ILCS 5/14(a)(1) (West 2010). A school district’s refusal
to submit an employee grievance to binding arbitration under a collective bargaining
agreement is a violation of section 14(a)(1) of the Act. Cobden Unit School District No. 17 v.
Illinois Educational Labor Relations Board, 2012 IL App (1st) 101716, ¶ 19; Granite City
Community Unit School District No. 9 v. Illinois Educational Labor Relations Board, 279 Ill.
App. 3d 439, 442 (1996); Board of Trustees, Prairie State College v. Illinois Educational
Labor Relations Board, 173 Ill. App. 3d 395, 409 (1988). However, refusal to arbitrate is an
appropriate method to challenge the issue of arbitrability. See Board of Education of
Community School District No. 1, Coles County v. Compton, 123 Ill. 2d 216, 225-26 (1988);
Niles Township High School District 219 v. Illinois Educational Labor Relations Board, 379
Ill. App. 3d 22, 24 (2007). A school district may refuse to arbitrate a grievance where: (1) there
is no contractual agreement to arbitrate the substance of the dispute or (2) the dispute is not
arbitrable under section 10(b) of the Act (115 ILCS 5/10(b) (West 2010)) because the subject
matter of the dispute conflicts with Illinois law. Cobden Unit School District, 2012 IL App
(1st) 101716, ¶ 19; Niles Township, 379 Ill. App. 3d at 24.
¶ 21 The Board’s position throughout these proceedings is that the decision to designate PATs
as ineligible for rehire is a matter of inherent managerial policy for the selection of new
employees. The Board contends that it did not contractually limit this authority and, further,
that this authority is statutorily excluded from arbitration.
¶ 22 We first consider whether there was a contractual agreement to arbitrate the instant
grievances concerning the DNH designations. In determining whether a school district is
required to arbitrate a grievance, the mere existence of the dispute between the employer and
the employee does not make the disputed matter subject to arbitration under a collective
bargaining agreement. Rather, the IELRB must examine whether the grievance falls within the
terms of the collective bargaining agreement. Cobden Unit School District, 2012 IL App (1st)
101716, ¶ 19.
¶ 23 In the case at bar, article 3 of the CBA provides the following definition: “A grievance is a
complaint involving a work situation; a complaint that there has been a deviation from,
misinterpretation of or misapplication of a practice or policy; or a complaint that there has been
a violation, misinterpretation or misapplication of any provisions of this Agreement.” As part
of the grievance procedure, article 3-5 provides for binding arbitration. Further, article 34-4,
concerning personnel files, provides as follows:
“No derogatory statement about a teacher or other bargaining unit member
originating outside of the Chicago public school system shall be placed in the teacher’s
or other bargaining unit member’s personnel file, provided, further, that any official
report or statement originating within the Chicago public school system may be placed
in the teacher’s or other bargaining unit member’s personnel file only if the [person] is
sent a dated copy thereof at the same time. The [person] may respond and such
response shall be attached to the filed copy.”
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Further, article 48-2 of the CBA provides in pertinent part:
“The BOARD shall not be required to bargain over matters of inherent managerial
policy within the meaning of the [Act] or Illinois School Code, which shall include
such areas of discretion or policy as the functions of the BOARD, standards of service,
its overall budget, the organizational structure and selection of new employees and
direction of employees ***. The BOARD, however, shall be required to bargain
collectively with the UNION with regard to policy matters directly affecting wages,
hours and terms and conditions of employment as well as the impact thereon upon
request by the UNION.”
¶ 24 The IELRB found that “there is no express language excluding this matter from
arbitration.” The IELRB determined that the DNH grievances were not contractually
precluded from arbitration “[i]n light of the broad language in the grievance clause and the lack
of exclusions from arbitration.” The agency viewed the management rights language in article
48-2 as pertaining to the Board’s “bargaining power, not arbitration.”
¶ 25 The IELRB misconstrued the CBA. Pursuant to the Act, binding arbitration is a mandatory
component in all collective bargaining agreements. 115 ILCS 5/10(c) (West 2010); see
Compton, 123 Ill. 2d at 222-23. This court has repeatedly observed that employers have the
right to refuse to bargain over “matters of inherent managerial policy.” However, employers
must bargain over “wages, hours and other terms and conditions of employment.” 115 ILCS
5/4, 10(a) (West 2010); Central City, 149 Ill. 2d at 522; Compton, 123 Ill. 2d at 220.
¶ 26 In Central City, this court established a three-part test to determine whether a matter is
subject to mandatory bargaining. First is the matter one of “wages, hours and terms and
conditions of employment?” “If the answer to this question is no, the inquiry ends and the
employer is under no duty to bargain.” Central City, 149 Ill. 2d at 523. A term and condition of
employment is something that an employer provides which intimately and directly affects the
work and welfare of the employees. In addition to wages and hours, typical terms and
conditions include health insurance and pension contributions. Vienna School District No. 55
v. Illinois Educational Labor Relations Board, 162 Ill. App. 3d 503, 507 (1987).
¶ 27 In the at case bar, we agree with the appellate court that the DNH grievances do not relate
to terms and conditions of employment, but rather to the Board’s ability to initiate
employment, which is a matter of managerial policy. 2014 IL App (1st) 130285, ¶ 28.
Although the CBA broadly defines a grievance, that broad definition does not, and as will be
shown, cannot, pertain to the matters excluded from the bargaining process under the CBA,
including the Board’s ability to make hiring decisions.
¶ 28 Even if some provision in the CBA could be read to require that the DNH grievances be
arbitrated, section 10(b) of the Act (115 ILCS 5/10(b) (West 2010)) would prohibit its
enforcement because implementing the provision would violate or conflict with Illinois law.
That section provides:
“(b) The parties to the collective bargaining process shall not effect or implement a
provision in a collective bargaining agreement if the implementation of that provision
would be in violation of, or inconsistent with, or in conflict with any statute or statutes
enacted by the General Assembly of Illinois.” 115 ILCS 5/10(b) (West 2010).
In turn, section 4 of the Act provides in pertinent part:
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“Employers shall not be required to bargain over matters of inherent managerial policy,
which shall include such areas of discretion or policy as the functions of the employer,
standards of service, its overall budget, the organizational structure and selection of
new employees and direction of employees.” 115 ILCS 5/4 (West 2010).
The instant DNH grievances are inarbitrable because their arbitration would conflict with
section 4 of the Act.
¶ 29 The arbitration of these grievances would also conflict with several sections of the School
Code. “[A] school board has only those powers expressly conferred upon it by the General
Assembly and those that are necessary to carry into effect the powers granted by the
legislature.” Spinelli v. Immanuel Lutheran Evangelical Congregation, Inc., 118 Ill. 2d 389,
403 (1987) (citing Wesclin Education Ass’n v. Board of Education of Wesclin Community Unit
School District, 30 Ill. App. 3d 67, 75 (1975)). Section 34-84 mandates that the Board shall
appoint teachers “for merit only, and after satisfactory service for a probationary period of 3
years.” 105 ILCS 5/34-84 (West 2010). Also, section 10-22.4 of the School Code, which
authorizes a school district to dismiss a teacher “whenever, in its opinion, he is not qualified to
teach, or whenever, in its opinion, the interests of the schools require it, subject, however, to
the provisions of Sections 24-10 to 24-15, inclusive.” 105 ILCS 5/10-22.4 (West 2010). This
provision includes the power to terminate the employment of probationary teachers by the
nonrenewal of their teachers’ contracts. This discretionary power may not be delegated to an
arbitrator or limited by a collective bargaining agreement. See Illinois Education Ass’n Local
Community High School District 218 v. Board of Education of School District 218, Cook
County, 62 Ill. 2d 127, 130-31 (1975); Wesclin, 30 Ill. App. 3d at 75-76. Thus, probationary
teachers have no specific right to be retained by a school board. Rather, a school board may,
subject to the provisions of the School Code, retain or dismiss probationary teachers entirely in
its discretion. “In this situation, the probationary teacher is not discharged or dismissed so
much as she is not asked to enter into continued contractual service.” Lockport Area Special
Education Cooperative v. Lockport Area Special Education Cooperative Ass’n, 33 Ill. App. 3d
789, 794 (1975). The school board may not delegate this power by agreeing to dismiss teachers
only for just cause or agreeing to submit to binding arbitration whether or not there is just
cause. “The Board may only agree to follow certain procedures before making a determination,
which only the Board can make.” Id.; accord Cobden Unit School District, 2012 IL App (1st)
101716, ¶ 21.1
¶ 30 The instant DNH grievances attempt to force the Board to hire probationary teachers. As
the appellate court observed, the relief that the Union sought from the Board included
reinstating grievants to their particular jobs, or allowing grievants to seek employment within
the Chicago Public School system. 2014 IL App (1st) 130285, ¶ 28. The grievances therefore
conflict with the Board’s statutory authority to refuse to rehire probationary teachers, and the
Board was not required to arbitrate them pursuant to section 10(b) of the Act. See id. ¶¶ 34-36.
¶ 31 PATs are employed for a single school-year term, and the Board alone is vested with the
selection of such employees as a matter of inherent managerial policy. Further, the Board’s
policy of placing a DNH designation in the files of PATs following two nonrenewals or an
1
The Union contends that the Board’s failure to refer to the School Code before the IELRB
precludes reference to it on administrative review. We disagree. Article 48-2 of the CBA and section 4
of the Act provide for the same management rights as these sections of the School Code.
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unsatisfactory performance rating was within the Board’s authority because this policy directly
relates to the Board’s exclusive right to determine its hiring guidelines. To the extent that PATs
seek reinstatement, the disputed grievances are inarbitrable under both the CBA and section
10(b) of the Act. We agree with the appellate court that the Board was not obligated to arbitrate
the instant grievances and that the IELRB clearly erred in finding that the Board violated
section 14(a)(1) of the Act. See id. ¶¶ 34-37.
¶ 32 III. CONCLUSION
¶ 33 For the foregoing reasons, the judgment of the appellate court is affirmed and the cause
remanded to the IELRB for further proceedings.
¶ 34 Affirmed and remanded.
¶ 35 JUSTICE KILBRIDE, dissenting:
¶ 36 The issue presented in this appeal is whether the Board of Education of the City of Chicago
(Board) committed an unfair labor practice by refusing to arbitrate grievances alleging the
Board placed “Do Not Hire” (DNH) designations in certain probationary teachers’ personnel
files without giving those teachers notice. There is no question that the ultimate decision on
whether to rehire the probationary teachers cannot be made in the arbitration process but is
within the Board’s sole discretion. The grievants seek, among other things, enforcement of
procedural protections in the parties’ collective bargaining agreement (CBA) prohibiting
placement of statements in a teacher’s personnel file without giving the teacher notice and an
opportunity to respond. The Illinois Educational Labor Relations Board (IELRB) found that
the Board committed an unfair labor practice by refusing to arbitrate the grievances. In my
view, the IELRB’s decision is not clear error and should be confirmed. Accordingly, I
respectfully dissent.
¶ 37 On administrative review, this court reviews the administrative agency’s decision, not the
decision of the appellate court. Wade v. City of North Chicago Police Pension Board, 226 Ill.
2d 485, 504 (2007). As the majority holds, the issues in this case present mixed questions of
law and fact subject to review for clear error. A decision is clearly erroneous only when “the
reviewing court, on the entire record, is ‘left with the definite and firm conviction that a
mistake has been committed.’ ” AFM Messenger Service, Inc. v. Department of Employment
Security, 198 Ill. 2d 380, 395 (2001) (quoting United States v. United States Gypsum Co., 333
U.S. 364, 395 (1948)). Review for clear error is significantly deferential to an administrative
agency’s experience in construing and applying the statute it administers. AFM Messenger,
198 Ill. 2d at 393-95.
¶ 38 In this case, the IELRB determined that the Board violated section 14(a)(1) of the Illinois
Educational Labor Relations Act (Act) by refusing to arbitrate the DNH grievances. Section
14(a)(1) of the Act provides that “[e]ducational employers, their agents or representatives are
prohibited from: (1) [i]nterfering, restraining or coercing employees in the exercise of the
rights guaranteed under this Act.” 115 ILCS 5/14(a)(1) (West 2010). An employer violates
section 14(a)(1) and commits an unfair labor practice by refusing to arbitrate an arbitrable
employee grievance. Board of Trustees, Prairie State College v. Illinois Educational Labor
Relations Board, 173 Ill. App. 3d 395, 408-09 (1988). In determining whether a grievance is
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arbitrable, the IELRB must examine whether it falls within the terms of the collective
bargaining agreement. Staunton Community Unit School District No. 6 v. Illinois Educational
Labor Relations Board, 200 Ill. App. 3d 370, 376 (1990). A school district may refuse to
arbitrate a grievance when: (1) the district did not contractually agree to arbitrate the dispute or
(2) the dispute is not arbitrable under section 10(b) of the Act (115 ILCS 5/10(b) (West 2010))
because its subject matter conflicts with Illinois law. Chicago Teachers Union v. Illinois
Educational Labor Relations Board, 344 Ill. App. 3d 624, 636 (2003).
¶ 39 This court must, therefore, first determine whether the IELRB clearly erred in finding that
the parties contractually agreed to arbitrate the grievances involving placement of the DNH
designations in probationary teachers’ personnel files. If the IELRB did not clearly err on that
point, we must consider whether it clearly erred in finding the grievances arbitrable under
section 10(b) of the Act.
¶ 40 Contractual Agreement to Arbitrate
¶ 41 Article 3 of the CBA defines a grievance as “a complaint involving a work situation; a
complaint that there has been a deviation from, misinterpretation of or misapplication of a
practice or policy; or a complaint that there has been a violation, misinterpretation or
misapplication of any provision of this Agreement.” Article 3-5 provides for binding
arbitration as part of the grievance procedure.
¶ 42 In this case, the IELRB observed that the language in the grievance clause is broad,
allowing for arbitration of a grievance as long as it involves a “work situation.” The IELRB
determined that the grievances are not contractually precluded from arbitration given the broad
language in the grievance clause and the absence of any exclusions. In my view, the IELRB did
not clearly err in finding the grievances arbitrable under the broad definition provided in the
CBA. The basis for placing the DNH designations in probationary teachers’ personnel files
was an evaluation of their conduct during work situations.
¶ 43 Additionally, the grievances in this case allege a violation of specific procedural
protections in the CBA governing the placement of reports or statements in a teacher’s
personnel file. As the majority acknowledges, article 34-4 of the CBA provides that:
“No derogatory statement about a teacher or other bargaining unit member
originating outside of the Chicago public school system shall be placed in the teacher’s
or other bargaining unit member’s personnel file, provided, further, that any official
report or statement originating within the Chicago public school system may be placed
in the teacher’s or other bargaining unit member’s personnel file only if the teacher or
other bargaining unit member is sent a dated copy thereof at the same time. The teacher
or other bargaining unit member may respond and such response shall be attached to
the filed copy.”
¶ 44 The grievances state probationary teachers did not receive notice that DNH designations
were placed in their files. The grievances further allege the Board’s policy violates specific
provisions in the CBA, including article 34-4. Those allegations are clearly “complaint[s] that
there has been a violation *** of any provision of this Agreement” within the express language
of the grievance clause. Accordingly, the IELRB did not clearly err in determining that those
grievances fall within the broad language in the grievance clause.
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¶ 45 The majority, however, concludes that the IELRB misconstrued the CBA. The majority
holds that employers may refuse to bargain over “matters of inherent managerial policy,” and
the DNH grievances relate to a matter of managerial policy involving the Board’s ability to
initiate employment or make hiring decisions, not to the terms and conditions of employment.
Thus, the majority maintains that the matters alleged in the grievances are excluded from the
bargaining process and cannot be covered by the grievance clause in the CBA.
¶ 46 I agree that employment decisions are a matter of inherent managerial policy and the Board
has the sole right to determine whether probationary teachers are rehired. The grievances in
this case, however, allege a clear violation of article 34-4 of the CBA, prohibiting placement of
official reports or statements in a teacher’s personnel file without giving the teacher prompt
notice and an opportunity to respond. The grievants seek, among other things, notice to
teachers of any DNH designation placed in their personnel files and removal of designations
placed in files in violation of article 34-4. Those grievances do not interfere with the Board’s
right to make hiring decisions. Rather, they complain of a violation of a term and condition of
employment involving placement of items in teachers’ personnel files.
¶ 47 The plain intent of article 34-4 is to provide some basic protection for teachers
encountering the specific circumstances presented in this case. Absent enforcement of that
provision, a teacher would have no recourse if a DNH designation were placed in his or her
personnel file wrongfully or by mistake. Article 34-4 is directed at preventing the secret
placement of derogatory statements or reports in personnel files with no notice to employees.
Those are the precise complaints alleged by the probationary teachers in this case.
¶ 48 The issue of whether the Board violated express procedural requirements in the CBA is
arbitrable under the grievance clause. The IELRB did not clearly err in concluding the DNH
grievances are arbitrable under the CBA.
¶ 49 Arbitration Under Section 10(b) of the Act
¶ 50 The majority also concludes that the IELRB committed clear error in finding the DNH
grievances arbitrable under section 10(b) of the Act. The majority holds that arbitration of the
grievances would conflict with section 4 of the Act (115 ILCS 5/4 (West 2010)), stating
employers are not required to bargain over “matters of inherent managerial policy” and would
also violate several provisions of the School Code providing for those same management
rights. The majority’s determination is based on its claim that the DNH grievances interfere
with the Board’s authority to decide whether to rehire probationary teachers. The majority
states the “DNH grievances attempt to force the Board to hire probationary teachers.”
¶ 51 Section 4 of the Act states, in pertinent part:
“Employers shall not be required to bargain over matters of inherent managerial policy,
which shall include such areas of discretion or policy as the functions of the employer,
standards of service, its overall budget, the organizational structure and selection of
new employees and direction of employees. Employers, however, shall be required to
bargain collectively with regard to policy matters directly affecting wages, hours and
terms and conditions of employment as well as the impact thereon upon request by
employee representatives.” 115 ILCS 5/4 (West 2010).
¶ 52 The IELRB determined that section 4 does not apply to this case because it addresses
bargaining, not arbitration. Section 4 does not indicate that the allegations of these grievances
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are prohibited subjects of bargaining or preclude arbitration of the grievances. In my view, the
IELRB did not clearly err in finding section 4 inapplicable to this case.
¶ 53 Even if section 4 and the School Code provisions cited by the majority were applicable,
however, the grievances in this case do not conflict with the Board’s authority to make hiring
decisions. As noted above, the grievances allege violations of specific procedural protections
set forth in the CBA. The grievances allege the Board violated article 34-4 of the CBA by
placing DNH designations in probationary teachers’ personnel files without giving notice to
the teachers. Article 34-4 prohibits placement of official reports or statements in a teacher’s
personnel file without giving the teacher notice and an opportunity to respond. The grievants
seek, in part, notice to teachers of any DNH designation placed in their personnel files and
removal of designations placed in files in violation of article 34-4.
¶ 54 Those allegations do not conflict with the Board’s authority to make the ultimate decision
on whether to rehire the probationary teachers. Rather, they seek to enforce basic procedural
protections the parties bargained for in the CBA. The failure to give probationary teachers the
notice and opportunity to respond required by article 34-4 is a violation of a term and condition
of employment. Without the enforcement of article 34-4, the probationary teachers would have
no recourse or opportunity to be heard if a DNH designation were placed in their file
wrongfully or by mistake.
¶ 55 As the majority recognizes, the Board may agree to follow certain procedures before
making hiring decisions. Supra ¶ 30 (citing Lockport Area Special Education Cooperative v.
Lockport Area Special Education Cooperative Ass’n, 33 Ill. App. 3d 789, 794 (1975), and
Cobden Unit School District No. 17 v. Illinois Educational Labor Relations Board, 2012 IL
App (1st) 101716, ¶ 21). In Lockport Area Special Education Cooperative, 33 Ill. App. 3d at
792, the appellate court observed that school boards had been “permitted to agree to procedural
prerequisites to the exercise of [their] discretion” on whether to rehire probationary teachers,
including “notice, hearing, conferences with the teacher and an opportunity to remedy alleged
deficiencies.” (Emphasis omitted.) Article 34-4 is a procedure the Board agreed to follow
before making its discretionary hiring decision. It does not interfere with the Board’s ultimate
authority to decide whether to rehire probationary teachers. Accordingly, the IELRB did not
commit clear error in finding the grievances arbitrable under section 10(b).
¶ 56 In sum, I would hold that the IELRB did not clearly err in finding the DNH grievances in
this case arbitrable under the CBA and section 10(b) of the Act. The IELRB’s decision that the
Board violated section 14(a)(1) by refusing to arbitrate the grievances should be confirmed.
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