Board of Education of the City of Chicago v. Illinois Educational Labor Relations Board , 2013 IL App (1st) 122447 ( 2014 )

Illinois Official Reports
Appellate Court
Board of Education of the City of Chicago v. Illinois Educational Labor Relations Board,
2013 IL App (1st) 122447
Appellate Court THE BOARD OF EDUCATION OF THE CITY OF CHICAGO,
Caption Petitioner, v. ILLINOIS EDUCATIONAL LABOR RELATIONS
BOARD, LYNNE O. SERED, IELRB Chairman; IELRB Members,
RONALD F. ETTINGER, GILBERT O’BRIEN, MICHAEL H.
PRUETER, MICHAEL K. SMITH, and SERVICE EMPLOYEES
INTERNATIONAL UNION LOCAL 73, CLC, CTW, Respondents.
District & No. First District, Third Division
Docket No. 1-12-2447
Filed December 18, 2013
Held In an action arising from the termination of a school security officer as
(Note: This syllabus a result of an altercation with two students, the finding of the Illinois
constitutes no part of the Educational Labor Relations Board that the school board committed
opinion of the court but an unfair labor practice by refusing to turn over the disciplinary
has been prepared by the records of the students pursuant to a subpoena issued by the arbitrator
Reporter of Decisions at the request of the officer’s union in his grievance proceeding was
for the convenience of reversed, since the disclosure of the records was prohibited by the
the reader.) Student Records Act in the absence of a court order, and although the
arbitrator’s subpoena was not a court order, the clear relevance of the
records would indicate that an actual court order could be easily
obtained.
Decision Under Petition for review of order of Illinois Educational Labor Relations
Review Board, No. 2011-CA-0088-C.
Judgment Reversed.
Counsel on James L. Bebley and Lee Ann Lowder, both of Board of Education,
Appeal Chicago, for petitioner.
Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
Solicitor General, and Sharon Purcell, Assistant Attorney General, of
counsel), for respondent Illinois Educational Labor Relations Board.
Tyson B. Roan, of Service Employees International Union, Local 73,
of Chicago, for respondent Service Employees International Union,
Local 73.
Dowd Bloch & Bennet, of Chicago (Robert E. Bloch and Josiah A.
Groff, of counsel), for amicus curiae Chicago Teachers Union.
Panel JUSTICE MASON delivered the judgment of the court, with opinion.
Presiding Justice Hyman and Justice Neville concurred in the
judgment and opinion.
OPINION
¶1 Petitioner Board of Education of the City of Chicago (Board) seeks direct administrative
review of the finding of the Illinois Educational Labor Relations Board (IELRB) that it
committed an unfair labor practice when it refused to release student records during a
grievance proceeding arising out of the Board’s termination of a member of the Service
Employees International Union, Local 73 (Union). On direct appeal to this court pursuant to
Illinois Supreme Court Rule 335 (eff. Feb. 1, 1994) and section 3-115 of the Code of Civil
Procedure (735 ILCS 5/3-113 (West 2010)), the Board argues that section 6 of the Illinois
School Student Records Act (105 ILCS 10/6 (West 2010)) (Student Records Act), prohibited it
from releasing student records without a court order, notwithstanding the Union’s willingness
to accept a redacted version of the records. The Board further contends that its one-time refusal
to provide the records did not constitute an unfair labor practice. For the reasons that follow,
we reverse.
¶2 BACKGROUND
¶3 This case arises out of the February 2010 termination of Clinton Cooper, a school security
officer at Emil G. Hirsch High School. The Board discharged Cooper, a union member, on the
grounds that he initiated physical altercations with two students, D.E. and R.G. The Union
initiated a grievance proceeding stemming from this discharge. As a basis for challenging
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Cooper’s termination, the Union contended that the altercation with R.G. never occurred and
the second altercation was initiated by D.E. Specifically, the Union believed both students had
been disciplined for lying and that D.E. had a history of violence and was expelled following
Cooper’s termination as a result of a fight with school staff.
¶4 After exhausting the initial steps of the grievance procedure outlined in the parties’
collective bargaining agreement (CBA), the Union proceeded to arbitration. In preparation for
the arbitration, the Union propounded document requests on the Board in September 2010. The
Board turned over most of the requested records, but declined to produce the disciplinary
records of D.E. and R.G. on the grounds that the records were confidential. In response, the
Union indicated its willingness to accept redacted files omitting the students’ surnames. The
Union also assured the Board that the documents would remain confidential pursuant to
section 3-5.3 of the CBA, which requires all grievances to be processed confidentially.
¶5 When the Board still declined to turn over the records, the Union moved before the
arbitrator for execution of a subpoena duces tecum for the disciplinary files of the two students.
In its motion for execution of the subpoena, the Union stated it would accept versions of the
records referring to the students only by their initials. On February 18, 2011, the arbitrator
executed the subpoena, but the Board persisted in its refusal to provide the documents.
However, the Board indicated that it would comply if an order was issued by a court.
¶6 The Union declined to seek an order from the court and instead filed an unfair labor
practice charge against the Board on March 18, 2011. The Union also went forward with the
arbitration on April 4, 2011, and on May 11, 2011, the arbitrator ordered that Cooper be
reinstated.
¶7 In its charge of unfair labor practices, the Union alleged that the Board’s decision to
withhold the students’ records violated section 14(a)(5) of the Illinois Educational Labor
Relations Act (115 ILCS 5/14(a)(5) (West 2010)) (the Labor Relations Act), which requires an
employer to bargain collectively in good faith with an employee representative. In its answer to
the charge, the Board argued that under the Student Records Act it was prohibited from
releasing student disciplinary records without a court order. The Board further argued that the
controversy was moot in light of the arbitrator’s decision reinstating Cooper. The parties
agreed to proceed on a stipulated record in lieu of a hearing and submitted posthearing briefs to
the administrative law judge (ALJ). After finding no issues of fact, the ALJ referred the case to
the IELRB for decision.
¶8 The IELRB determined that the Board’s confidentiality concerns were mitigated in light of
the Union’s agreement to accept redacted records and keep the contents of those records
confidential. Accordingly, the IELRB found that the Board committed an unfair labor practice
and ordered the Board to turn over D.E. and R.G.’s records to the Union and to post a notice to
employees informing them of their rights. In addition, the IELRB found that the matter was not
moot, citing Grand Rapids Press, 331 N.L.R.B. 296, 300 (2000), where the National Labor
Relations Board held that an evaluation of a union’s right to requested information must be
based on the situation which existed at the time the request was made, rather than the situation
which exists at the time that right is vindicated.
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¶9 The Board filed a timely petition for review of the order. The Chicago Teachers Union was
permitted to file an amicus curiae brief in support of the IELRB and the Union.
¶ 10 ANALYSIS
¶ 11 The overarching issue on appeal is whether student disciplinary records are protected from
disclosure under the Student Records Act during grievance proceedings before the IELRB. 1
Resolution of this question necessarily requires interpretation of the Student Records Act.
Ordinarily, such questions of law are subject to de novo review. City of Belvidere v. Illinois
State Labor Relations Board, 181 Ill. 2d 191, 204-05 (1998); see also County of Du Page v.
Illinois Labor Relations Board, 231 Ill. 2d 593, 603 (2008) (statutory interpretation subject to
de novo review). However, both the IELRB and the Union (collectively, respondents) argue
that a more deferential standard of review is appropriate.
¶ 12 To begin, the IELRB contends that its decision is entitled to “substantial deference” where
it interprets ambiguous statutes that it is tasked with administering and enforcing. But these are
not the circumstances presented here. This case does not involve construction of the Labor
Relations Act, which we can reasonably conclude the IELRB is responsible for enforcing, but
the Student Records Act, which is enforced by the Illinois State Board of Education (105 ILCS
10/3(a) (West 2010)). As such, this case is distinguishable from County of Du Page, where the
supreme court deferred to the Illinois Labor Relation Board’s (ILRB) interpretation of section
9(a-5) of the Illinois Public Labor Relations Act (5 ILCS 315/9(a-5) (West 2004)), which the
ILRB was charged with administering. County of Du Page, 231 Ill. 2d at 608-09.
¶ 13 The argument advanced by the Union is no more persuasive. The Union cites several cases
in which a reviewing court applied a clearly erroneous standard of review to a decision of the
IELRB (see, e.g., Speed District 802 v. Warning, 242 Ill. 2d 92, 110-11 (2011); Board of
Education v. Sered, 366 Ill. App. 3d 330, 336 (2006); Chicago School Reform Board of
Trustees v. Illinois Educational Labor Relations Board, 315 Ill. App. 3d 522, 528 (2000)), but
none of these cases involved an affirmative defense to compliance with the Labor Relations
Act based on the operation of a separate statute. For example, in Chicago School Reform Board
of Trustees, the board refused to turn over certain documents to the union on the basis that
these documents were not relevant to the union’s performance of its responsibilities to bargain
and administer the parties’ collective bargaining agreement. Chicago School Reform Board of
Trustees, 315 Ill. App. 3d at 528-29. Thus, the only issue was the relevance of the undisclosed
documents, a mixed question of law and fact subject to the clearly erroneous standard of
review. Id. at 528.
¶ 14 In contrast, here, the Board does not dispute that the student disciplinary records were
relevant to the grievance proceedings. Rather, the Board’s argument turns on whether the
Student Records Act prohibits disclosure of the records notwithstanding their relevancy. This
is a pure question of law subject to de novo review. See City of Belvidere, 181 Ill. 2d at 204-05.
¶ 15 Before turning to an examination of whether the provisions of the Student Records Act
operate to bar disclosure of student records in this case, it is helpful to begin by setting forth the
1
On appeal, the Board abandons its contention that this issue is moot.
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basis of an educational employer’s general duty to disclose information to a bargaining unit.
This duty stems from section 14(a)(5) of the Labor Relations Act, which reads, in relevant part:
“(a) Educational employers, their agents or representatives are prohibited from:
***
(5) Refusing to bargain collectively in good faith with an employee
representative which is the exclusive representative of employees in an appropriate
unit, including but not limited to the discussing of grievances with the exclusive
representative ***.” 115 ILCS 5/14(a)(5) (West 2010).
Bargaining in good faith includes an obligation on the part of the employer to provide the
union with information upon request. Chicago School Reform Board of Trustees, 315 Ill. App.
3d at 528 (citing National Labor Relations Board v. Acme Industrial Co., 385 U.S. 432, 435-36
(1967) (“[t]here can be no question of the general obligation of an employer to provide
information that is needed by the bargaining representative for the proper performance of its
duties”)).
¶ 16 However, this duty to provide information is not absolute. The information must be
relevant to the proceedings and reasonably necessary to the union’s performance of its
responsibilities. Allied Mechanical Services, Inc., 332 N.L.R.B. 1600 (2001); 2 see also
Chicago School Reform Board of Trustees, 315 Ill. App. 3d at 529. Relevancy is determined
pursuant to a broad, discovery-based standard. Dupo Federation of Teachers, Local 1732, 13
PERI ¶ 1044 (IELRB 1997). 3 That is, information is relevant if it “would be of use to the union
in carrying out its statutory duties and responsibilities.” Acme Industrial, 385 U.S. at 437.
¶ 17 Moreover, as the IELRB acknowledges, even relevant information may be withheld where
an employer asserts an affirmative defense to production, such as confidentiality concerns or
the need for employee privacy. See Detroit Edison Co. v. National Labor Relations Board, 440
U.S. 301, 314-15 (1979). While employers’ assertions of such defenses have not always met
with success (see, e.g., Alton Education Ass’n, 21 PERI ¶ 79 (IELRB 2005); Chicago Fire
Fighters Union, Local 2, 12 PERI ¶ 3015 (ILLRB 1996)), no Illinois court has evaluated the
merits of a statutory defense to production in a published decision. Thus, the scenario
presented in this case is one of first impression.
¶ 18 Initially, the parties dispute whether the disciplinary files of D.E. and R.G. are student
records within the meaning of the Student Records Act, which defines “school student record”
as “any writing or other recorded information concerning a student and by which a student may
2
Rulings of the NLRB and federal courts construing labor relations acts are persuasive authority
when analyzing similar provisions in Illinois acts. See American Federation of State, County &
Municipal Employees v. Illinois State Labor Relations Board, 190 Ill. App. 3d 259, 264 (1989).
3
While decisions of the IELRB have no precedential value, they are instructive on certain issues.
See, e.g., Chicago School Reform Board of Trustees, 315 Ill. App. 3d at 529 n.3; see also Central
Community Unit School District No. 4 v. Illinois Educational Labor Relations Board, 388 Ill. App. 3d
1060, 1066 (2009) (citing IELRB decision for factors to consider when determining when an arbitration
award is binding).
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be individually identified, maintained by a school or at its direction or by an employee of a
school.” 105 ILCS 10/2(d) (West 2010). Respondents contend that the Union’s willingness to
accept redacted version of the records with the students named only by their initials renders the
students unable to be individually identified and removes their records from the protection of
the Student Records Act. We disagree.
¶ 19 In support of their argument, respondents cite to cases holding that “masked” student
records do not fall within the Student Records Act’s scope. 4 See, e.g., Bowie v. Evanston
Community Consolidated School District No. 65, 128 Ill. 2d 373, 379 (1989); Human Rights
Authority of the State of Illinois Guardianship & Advocacy Comm’n v. Miller, 124 Ill. App. 3d
701, 704 (1984). A “masked” record is one where any information identifying a student has
been deleted and the record is released for the purpose of research, statistical reporting, or
planning. Garlick v. Oak Park & River Forest High School District No. 200, 389 Ill. App. 3d
306, 312-13 (2009) (citing Bowie, 128 Ill. 2d at 379, and Miller, 124 Ill. App. 3d at 704).
¶ 20 In both Bowie and Miller, the petitioners sought the records of a large group of students.
Bowie, 128 Ill. 2d at 376 (seeking release of 1982-1986 California Achievement Test scores
for students in grades 2, 3, 5, 6, and 8 from 12 schools within the district); Miller, 124 Ill. App.
3d at 702 (seeking release of school district’s disabled students’ educational program records).
Neither the Bowie nor the Miller petitioners were concerned with the record of any individual
student, but with the records in the aggregate. Additionally, the purpose of the petitioners’
request was to investigate and conduct research. In Miller, for example, the Human Rights
Authority requested the educational program records in response to a complaint that the
Galesburg School District was not providing state-mandated occupational and physical
therapy for its students. Miller, 124 Ill. App. 3d at 702.
¶ 21 Here, in contrast, the Union did not seek the release of disciplinary records in the aggregate
for purposes of research or investigation. Rather, the Union sought the records of two specific
students for the purpose of discovering their individual disciplinary history. The only way in
which the two sets of records would have been useful to the Union is if they could both be
linked to a student involved in the alleged altercations with Cooper. For these reasons, the mere
redaction of the students’ surnames or reference to the students by their initials does not render
the records “masked” as that term has been defined in Garlick. Accordingly, we find that the
disciplinary records sought by the Union are “school student records” pursuant to section 2(d)
of the Student Records Act.
4
The Union also cites cases from foreign jurisdictions holding that redacted disciplinary records do
not fall within the ambit of the Family Educational Rights and Privacy Act, which limits the release of
“information directly related to a student.” 20 U.S.C. § 1232g(4)(A)(i) (2006); see Board of Trustees,
Cut Bank Public Schools v. Cut Bank Pioneer Press, 160 P.3d 482, 488 (Mont. 2007); State ex rel. The
Miami Student v. Miami University, 680 N.E.2d 956, 959 (Ohio 1997). We do not find these cases
persuasive where there is Illinois authority interpreting the specific language of the Student Records
Act that is at issue in this case. See Allstate Insurance Co. v. Lane, 345 Ill. App. 3d 547, 552 (2003)
(“[o]nly in the absence of Illinois authority on the point of law in question are we to look to other
jurisdictions for persuasive authority”).
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¶ 22 It is undisputed that the Student Records Act prohibits the release, transfer, disclosure or
dissemination of school student records except under certain circumstances. 105 ILCS 10/6
(West 2010). Respondents suggest that this prohibition gives rise to a conflict with the Labor
Relations Act, which, as discussed supra, generally requires an educational employer to
provide a bargaining representative with relevant information upon request. As a means of
resolving this conflict, respondents point to section 17 of the Labor Relations Act, which
provides: “In case of any conflict between the provisions of this Act and any other law,
executive order or administrative regulation, the provisions of this Act shall prevail and
control.” 115 ILCS 5/17 (West 2010). Respondents contend that this section operates to allow
release of the records notwithstanding the Student Record Act’s provisions limiting their
release. But this argument begins from a false premise, namely, that the Labor Relations Act
and the Student Records Act are in conflict. We agree with the Board that no conflict exists.
¶ 23 Significantly, the Student Records Act does not categorically prohibit the release of school
student records. Rather, the Student Records Act allows release of records in certain
circumstances, including pursuant to a court order. 105 ILCS 10/6(a)(5) (West 2010). It is this
exception that a union may invoke when seeking disclosure. Specifically, if after receiving a
subpoena issued by an arbitrator, a school board refuses to turn over student records, a union
may apply to the court to have the subpoena enforced. 710 ILCS 5/7(a) (West 2010). In this
way, the interests of an educational employer in protecting the confidentiality of sensitive
student records are neatly balanced with the interests of a bargaining representative in
obtaining all relevant information to perform its duties: neither must give way to the other.
¶ 24 Respondents and amicus argue against this result, contending that section 6(a)(6) of the
Student Records Act permits disclosure in the absence of a court order. This section allows
release of school student records “[t]o any person as specifically required by State or federal
law.” 105 ILCS 10/6(a)(6) (West 2010). According to respondents and amicus, the state law
“specifically” requiring disclosure is the Labor Relations Act, which requires educational
employers to bargain in good faith with employee representatives. 115 ILCS 5/14(a)(5) (West
2010). We do not agree that this state law is sufficiently specific so as to require disclosure of
student records under the Student Records Act.
¶ 25 Aufox v. Board of Education of Township High School District No. 113, 225 Ill. App. 3d
444 (1992), is instructive in this regard. There, petitioners challenged the release to the circuit
court of the hearing officer’s finding approving the school district’s placement of their son.
Aufox, 225 Ill. App. 3d at 446-47. The parties agreed that the findings of the hearing officer
were a school student record under the Student Records Act (and thus subject to disclosure
only under certain limited circumstances), but the school board argued that release was
required by section 14-8.02(j) of the School Code (Ill. Rev. Stat. 1989, ch. 122, ¶ 14-8.02(j)).
Aufox, 225 Ill. App. 3d at 448-49. Section 14-8.02(j) provided that where a party files an action
in circuit court challenging the decision in a hearing “ ‘The court shall receive the records of
the administrative proceedings.’ ” Id. at 449 (quoting Ill. Rev. Stat. 1989, ch. 122,
¶ 14-8.02(j)). The court in Aufox concluded that “shall” represented a mandatory obligation,
and thus agreed with the school board that section 6(a)(6) of the Student Records Act allowed
it to release the findings of the hearing officer. Id.
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¶ 26 Here, the state law at issue is not nearly so specific. Significantly, section 14(a)(5) of the
Labor Relations Act does not expressly order disclosure of records. Instead, that requirement is
derived from case law, which, unlike the School Code discussed in Aufox, does not impose an
unconditional and mandatory obligation on an employer to turn over a specific category of
documents to a union upon request. Rather, the duty to disclose is limited to relevant
documents that would assist the union in the performance of its collective bargaining
responsibilities. In addition, the duty may be circumscribed by any bona fide confidentiality
concerns articulated by the employer. Because this is far from a specific requirement for an
employer to turn over student records to a bargaining unit, we conclude that section 6(a)(6)
does not permit disclosure here.
¶ 27 Respondents and amicus suggest that the union’s agreement to accept redacted records and
to hold them in confidence alleviates any concern the Board may assert in releasing them. But
these parties do not address the right afforded parents under the Student Records Act to prior
notice and the opportunity to challenge the release of student records. 105 ILCS 10/6, 7 (West
2010). While the union and the Board could agree on procedures for the release and handling
of student records relevant to grievance proceedings, they cannot by agreement abrogate the
statutory right of parents to challenge, prior to their release, the “accuracy, relevance or
propriety of any entry in the school student records.” 105 ILCS 10/7 (West 2010). We see no
basis upon which to conclude that the union’s need for student records, under any and all
circumstances, takes precedence over the right of parents to notice and the opportunity to
challenge the release of their child’s records.
¶ 28 Amicus, citing timeliness concerns stemming from requiring parties to proceed to court for
enforcement of an arbitral subpoena, then urges us to find, in the alternative, that a subpoena
issued by an arbitrator is tantamount to a “court order” for purposes of section 6(a)(5) of the
Student Records Act. However, the language of the Uniform Arbitration Act (710 ILCS 5/1
et seq. (West 2010)) (the Arbitration Act) points us to the opposite conclusion. 5
¶ 29 To be sure, arbitrations are quasi-judicial in nature. Bushell v. Caterpillar, Inc., 291 Ill.
App. 3d 559, 563 (1997). Indeed, section 7(a) of the Arbitration Act allows arbitrators to issue
subpoenas for the attendance of witnesses and the production of documents, much the way a
court does. 710 ILCS 5/7(a) (West 2010). However, that section goes on to state that parties
may apply to a court for enforcement of a subpoena so issued “in the manner provided by law
for the service and enforcement of subpoenas in civil cases.” Id. This language suggests that
notwithstanding their quasi-judicial powers, arbitrators must ultimately turn to courts to
achieve compliance with certain orders. In other words, arbitral subpoenas themselves are not
court orders. Were we to hold otherwise, we would effectively nullify the enforcement
language of section 7(a), a result that is at odds with one of the cardinal principles of statutory
construction–that statutes should be construed so as to render no language or portion
meaningless. See Blum v. Koster, 235 Ill. 2d 21, 29 (2009). Simply stated, if the legislature
intended that arbitral subpoenas should be treated as court orders, it would not have been
5
The Arbitration Act governed the arbitration between the Union and the Board given that there
was no agreement to the contrary. See Bushell v. Caterpillar, Inc., 291 Ill. App. 3d 559, 563 (1997).
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necessary to specify that parties could apply to a court for their enforcement. For these reasons,
we decline to accept amicus’s position equating arbitral subpoenas with court orders for
purposes of section 6(a)(5) of the Student Records Act.
¶ 30 In reaching this conclusion, we are not unmindful of the delays that may ensue as a result of
proceeding with an enforcement action in the circuit court. See North Shore Sanitary District
v. Illinois State Labor Relations Board, 262 Ill. App. 3d 279, 285 (1994) (proceedings before
hearing officer delayed over one year while ILRB awaited outcome of administrative
subpoena enforcement action); Vaughn, 6 PERI ¶ 2021 n.2 (ISLRB 1990) (same). However,
we believe that such lengthy delays are the exception rather than the rule. Where, as here, there
is no dispute as to the documents’ relevance to the proceedings, the enforcement action can be
resolved expeditiously. 6
¶ 31 Finally, because we agree with the Board’s contention that section 6 of the Student Records
Act bars disclosure of student disciplinary records without a court order, we need not consider
whether the Family Educational Rights and Privacy Act also prohibits disclosure.
¶ 32 CONCLUSION
¶ 33 For the reasons stated, we reverse the decision of the IELRB.
¶ 34 Reversed.
6
If relevance is at issue, then delay would result irrespective of the avenue the union pursues to
obtain records.
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