Speed District 802 v. Warning

Docket No. 108785.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

____________________

SPEED DISTRICT 802, a/k/a Governing Board of Special Education

Joint Agreement District 802, Appellant, v. RACHEL WARNING et

al., Appellees.

Opinion filed February 25, 2011.

JUSTICE BURKE delivered the judgment of the court, with

opinion.

Justices Thomas, Garman, and Karmeier concurred in the

judgment and opinion.

Chief Justice Kilbride dissented, with opinion.

Justice Freeman dissented, with opinion, joined by Justice

Theis.

OPINION

On January 8, 2008, the Illinois Educational Labor Relations

Board (IELRB or the Board) issued a decision, finding that SPEED

District 802 (the District) violated section 14(a)(3) and, derivatively,

section 14(a)(1), of the Illinois Educational Labor Relations Act (115

ILCS 5/14(a)(1), (a)(3) (West 2004)), when it failed to renew the

teaching contract of Rachel Warning (Warning), a nontenured

probationary teacher, at the end of the 2004-05 school year. The

decision of the Board was affirmed in a divided opinion by the

appellate court. See 392 Ill. App. 3d 628. We granted the District’s

petition for leave to appeal and now set aside the Board’s decision and

reverse the appellate court judgment.

BACKGROUND

The following facts are taken from the record and transcripts of

the hearing before the administrative law judge.

Warning began working as a special education teacher for SPEED

District 802 in the 2001-02 school year and was assigned to teach a

class of severely physically handicapped teenage students. With regard

to this first school year, Warning’s personnel file contains only

Warning’s annual evaluation, which shows she received an overall

rating of “Standard.”1

During the following 2002-03 school year, however, a number of

concerns surfaced regarding Warning’s performance. Warning’s

personnel file contains a letter of reprimand, dated October 2, 2002,

indicating that Warning was admonished for failing to notify the

principal or other administrator before she sent a teaching assistant

home due to his misconduct. Warning was advised that she did not

have the authority to take this type of disciplinary action on her own

and, in doing so, her actions denied the administration the opportunity

to assess and document the situation firsthand.

Although Warning again received an overall rating of “Standard”

in her annual evaluation, dated January 31, 2003, she received a

number of “unsatisfactory” ratings in individual performance

objectives, as well as some “excellent” ratings and comments. The

objectives in which she received poor ratings were: “Effectively

manages the instructional team,” “Interacts effectively with co-

workers,” and “Exhibits professionalism and is a role model for other

teachers and students.” In the recommendation section of the

evaluation form, Principal Call wrote:

“When it comes to the personnel working using a trans-

disciplinary approach, that is not evident through many

different observations. We have discussed concerns with the

support staff regarding a comfort level in the classroom.

***

Your relationships with your classroom staff have been

negative and strained this year. Earlier in the (school) year

1

The rating system used by the school district has only three

classifications: “Excellent,” “Standard,” and “Unsatisfactory.” A

“Standard” rating means the teacher is performing satisfactorily.

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you made decisions about one of your assistants which were

not within your role. When you were asked for follow up

information on this situation, you did not follow up.”

In response, Warning wrote on the evaluation form:

“I have requested from administrator and support staff for

help in all matters but still this whole situation seems to be

blamed on me.”

Attached to the 2002-03 evaluation was a memorandum, also

dated January 31, 2003, and written by Principal Call. It stated, in part:

“This afternoon we met to hold the post-conference

meeting for your final evaluation. At this meeting the

discussion centered on the concerns I have regarding your

relationship and interactions with your support staff. I

reviewed with you these areas and talked about how you need

to be more effective in managing your classroom team. It is

your responsibility to model and demonstrate for your

assistants how they should be responding to support staff.

You received your copy of the evaluation on the morning

of January 30, 2003. That morning, after receiving the

evaluation, you approached the Speech Pathologist (in front

of other staff) and blamed her for your unsatisfactory ratings.

Your actions caused this person to be found in tears in the hall

by several other staff members. You also addressed another

one of your support staff members that same morning in such

a negative manner that she told you that she was not going to

be able to assist you on a field trip.

Your reaction to the evaluation and interactions with the

staff following demonstrated unsatisfactory behavior. At this

post conference I discussed with you the need for you to

develop a plan of what you will do to address the concerns

that have arisen related to teaming in your classroom. You

told me that you didn’t know what to do and wanted me to

help you with this. I again explained that I wanted you to

come up with a plan and then we can discuss it. You asked

me what happens if you do not come up with a plan, will I fire

you. I told you that I had not said anything about firing you.”

Warning submitted a written response to the memorandum,

stating:

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“The areas I was evaluated in unsatisfactorily seem unfair.

I was unaware of the support staff avoiding my classroom and

not feeling comfortable until the administrator made me

aware of the personalty conflict with an assistant in my

classroom. (I was disappointed that the chain of

communication was not followed. The support staff should

have communicated their concerns to me first.) I was then

directed to communicate this to my assistant and try to make

the classroom atmosphere more comfortable for the support

staff. I was directed to start documenting concerns. I had no

concern in regards to my assistants other than in the beginning

of the year. Since then everything has been excellent and I

saw no need for further action.

***

I feel my attempts to communicate and be a team member

are belittled and or not considered. I feel the support staff

does not respond to my attempts to communicate and then it

seems as if I am rated poorly for the personality

communication problems.”

Warning was given another memo from Principal Call several

months later, on May 12, 2003. This memo provided Warning, once

again, with written notice of concerns the administration had regarding

Warnings dealings with her support staff. The document also served

to memorialize a conference meeting that had been held earlier that

day and was attended by Warning, Principal Call, an Occupational

Therapist (OT) named Robin, and two other members of Warning’s

support staff. The purpose of the meeting was to discuss Warning’s

interference in Robin’s decisionmaking regarding scheduling of

“make-up” therapy time with a student. Warning was advised that she

did not have the authority or responsibility to assess another

professional staff member’s performance. Warning was advised that

she was the only teacher who had any problems dealing with Robin

and, in the future, if she had any concerns regarding a staff member’s

performance, she should direct her concerns to the administration

rather than the staff member. Also, Warning was advised that she had

acted improperly by discussing her staff concerns with a parent.

The memo also reprimanded Warning for her behavior during the

meeting. According to the memo, Warning and one of her assistants

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were rolling their eyes and nudging each other on the leg when certain

comments were made by Robin or the principal. The memo advised

Warning that she was expected to act more responsibly and

professionally, and reminded her that she would be unable to meet the

needs of her students if “the environment [in her classroom] is so tense

that the support staff does not want to work in your room.”

In closing, Principal Call noted that, since the team meeting

conducted earlier in the year, there had been “little or no

improvement” in the situation in Warning’s classroom and that

Warnings interactions with her support staff was having a negative

impact on her performance as a professional. Principal Call asked

Warning to develop a plan on how she could improve the situation in

her classroom. Principal Call commented that this was the second

request for such a plan and she stated, “In developing this plan, you

want to take time and look at what you need to do, not what others

need to do.” Warning was also advised that her classroom behavior

would continue to be monitored for the remainder of that school year

and the next.

Warning responded to this memo largely by denying that her

behavior with regard to Robin had been improper. Warning also

denied rolling her eyes or nudging her assistant. In addition, Warning

expressed her belief that, since the earlier team meeting, “everything

had improved tremendously.” Warning made no response to Principal

Call’s request that she develop a plan to improve the atmosphere in her

classroom. Instead, she provided a list of “concerns” she had regarding

Robin, mentioning three or four instances when, in Warning’s view,

Robin had not acted as a team player in her classroom.

In another memo dated May 20, 2003, Principal Call documented

the fact that Warning failed to show up for a scheduled meeting to

discuss the plan she had been directed to develop on improving staff

relationships in her classroom. The memo indicated that Principal Call

contacted Warning to remind her of the meeting and when Warning

finally arrived at Principal Call’s office, she had not prepared a written

plan. Moreover, Principal Call noted that when she asked Warning if

she had any ideas on how she could improve her classroom

atmosphere, Warning “with a smile on her face” responded, “I am

going to continue to do an excellent job as I have done in the past.”

Principal Call also noted that Warning had acted unprofessionally

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after receiving the earlier memo and she advised Warning that she

should take seriously the concerns that were being addressed with her,

particularly in light of the fact that one of Warnings’s assistants had

filed a complaint with the State Board alleging that students in her

classroom were not getting all the services they required. As a result

of that complaint, Principal Call needed Warning to supply copies of

her lesson plans for that school year in addition to supplying a plan on

how she could improve her interactions with staff members.

Warning’s response to Principal Call’s May 20, 2003, memo,

dated May 22, 2003, purports to be Warning’s plan for improving her

relationships with her staff. The document indicates that it is the third

plan submitted by Warning due to the fact that others had been

“rejected.” This plan, however, did not contain any ideas on how

Warning might improve her relationships with her staff. Instead, it

simply listed things Warning agreed to do or “continue” to do. For

example, the first item provides:

“1. Will continue to communicate with all SPEED Team

members by: (a) By [sic] a plan developed and agreed upon

by all members of the SPEED Team.”

The last two items on the list provide:

“6. Per your request (Kathy Call), Teacher will not monitor

support staff minutes.

7. Per your request (Kathy Call), I will decrease my jovial

demeanor and be more serious.” (Emphasis in original.)

The next item in Warning’s personnel file is her evaluation for the

2003-04 school year, Warning’s third probationary year.2 The

evaluation form, dated January 26, 2004, was completed by Principal

Call and, once again, gave Warning an overall rating of “Standard.” In

her comments, Principal Call commended Warning for making “great

2

Section 34–84 of the School Code (105 ILCS 5/34–84 (West 2004)),

provides that permanent appointment of a full-time teacher “shall be made

for merit only” and, after January 1, 1998, only after “satisfactory service

for a probationary period of *** 4 years.” The Code provision also states

that teachers, once permanent, shall be subject to removal for cause, but

that “during [this probationary] period the board may dismiss or discharge

any such probationary employee upon the recommendation, accompanied

by the written reasons therefor, of the general superintendent of schools.”

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strides” in implementing suggestions that had been made and for

taking “a great step in the direction of creating a positive environment”

in her classroom. The evaluation indicates that Warning was given all

new assistants for this school year and “on several occasions” Warning

had sought help directly from Principal Call to work out a plan that

would allow these new assistants to be more actively involved in the

lesson plans. Principal Call encouraged Warning to continue the

practice of seeking help in areas of need.

Principal Call also advised Warning in the evaluation that she

needed to be more consistent in her data collection in order to provide

a better measure of her students’ progress. She noted, too, that

Warning needed to implement different activities to keep her students

engaged when they were not working directly with a staff member.

The following 2004-05 school year was Warning’s fourth year as

a probationary teacher for SPEED District 802. On November 16,

2004, Assistant Principal Julie Egan conducted an initial observation

of Warning’s classroom for that school year. Egan described

Warning’s classroom as “warm and supportive” and gave Warning

high grades for her “positive and caring connections” with the

students, her motivation of the students, and her management and

organization of the classroom in regard to providing space and

interesting activities for the students. However, Egan suggested that

Warning “continue to have open communication” with her team and

“consider meeting daily” with them so they could discuss the monthly

units and the needs of each student. Also, similar to comments in

Warning’s evaluation a year earlier, Egan reminded Warning that she

must prepare written daily lesson plans and that she needed to find a

means of monitoring and recording student progress.

The next entry in Warning’s personnel file is a memo from Dr.

Geneva Clasberry, director of Human Resources, dated December 8,

2004. The subject line reads: “Attempt to Correct Deficiencies” and

the body of the memo explains that on December 3, 2004, a

paraprofessional had reported Warning for using inappropriate

language. The memo memorializes a meeting that was held with

Warning, which was also attended by the new principal, Ben Runyan,

and a union representative, Beth Wierzbicki. The memo indicates that

Warning admitted at the meeting that she had used improper language,

but commented that she had only been “joking.”

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It was noted in Dr. Clasberry’s memo that the current incident

was the second time during that school year3 that a paraprofessional

had reported Warning for inappropriate language. Warning was

advised that her conduct was unacceptable and that her language had

to be corrected. Warning also was advised that further incidents could

result in discipline “up to dismissal.” To remedy the problem, Warning

was told that she would be required to participate in training focused

on building interpersonal skills.

In Warning’s response, dated December 15, 2004, she implied

that her use of improper language was not serious because she had

been talking to an adult outside the classroom setting. Further,

Warning wrote:

“This behavior was corrected immediately and My [sic]

apology was accepted. According to the hierarchy in the chain

of command, the situation was taken care of between the

individuals. And was also at the time stated by the

paraprofessional that it was not a situation that needed to be

addressed. This should have gone no further (which was two

weeks later) and blown out of proportion. The situation had

been resolved.

I am a respectable and professional individual.

I will continue to refrain from using inappropriate language

and I will participate in training sessions.”

In addition to the above-quoted response, Warning submitted a

memo in which she describes various behaviors of the

paraprofessional who had reported her inappropriate language. It

appears Warning believed that the paraprofessional reported her in

retaliation for incidents that had occurred in the classroom between

October and November of 2004.

In February 2005, Warning had her second classroom observation

for that school year. This observation was conducted by Principal

Runyan. Following the observation, Principal Runyan completed

Warning’s evaluation, gave a copy to Warning, and scheduled a

meeting for March 1, 2005, to review and discuss the evaluation with

her. The evaluation that was given to Warning rated her

3

There is no evidence in the personnel file regarding the previous

incident of improper language referred to here.

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“Unsatisfactory” in four of seven categories, giving her an overall

rating of “Unsatisfactory.” In the commentary at the end of the

evaluation, Principal Runyan wrote:

“Rachel, during the school day the students in your classroom

need to be actively engaged in more instructional activities.

From my observations there appears to be a lot of unengaged

and misuse of instructional time. You’ve had several

encounters over the last couple of years in reference to

inappropriate communication with team members.

Recommendations have been made from previous counseling

sessions with Dr. Clasberry and me to address the

inappropriate comment issues. As a supervisor of

paraprofessionals it is your responsibility to maintain poise,

tact and professionalism in both oral and written

communication. Due to the overall summative rating of

unsatisfactory, it is my recommendation to Dr. Pointer,

Executive Director of SPEED, that you be placed on a plan to

correct deficiencies[4] to work on the four unsatisfactory

domains in this evaluation. Please find attached a corrective

deficiency plan. Immediately upon receipt and review of the

plan, corrective actions must take place by May 1, 2005, or

recommendation for your termination will be presented to Dr.

Pointer.”

At the scheduled March 1, 2005, meeting, Principal Runyan

planned to review the evaluation with Warning and discuss with her

the “Corrective Action Plan” that he developed. The plan identified

two main areas of concern regarding Warning’s performance: her

communication with classroom support staff and her “instructional

presentation.” The plan indicated that Warning’s classroom

presentation lacked “consistency, student engagement, and fails to

meet the standards and expectations of best practice approaches within

the identified group of students.” The plan indicated that Runyan and

Warning would meet biweekly for remediation and, initially, required

4

The collective-bargaining agreement between the union and the District

prohibits the District from dismissing a third- or fourth-year probationary

teacher for performance reasons “without at least one documented attempt

to correct deficiencies.”

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Warning to complete two tasks: (1) utilize a resource guide and certain

identified strategies (previously presented to her by Principal Runyan)

to develop and put into practice a plan to improve communication with

staff; provide evidence that team meetings are being conducted and of

any other methods used to accomplish the goal; (2) produce evidence

of weekly lesson plans and themes, documenting the amount of time

each student is engaged in “standard-based instruction.”

For the March 1, 2005, evaluation conference, Warning brought

with her a union representative, Beth Wierzbicki. Rather than discuss

the evaluation, Warning and Beth took this opportunity to argue with

Runyan about the evaluation form, itself. They insisted that Runyan

was required to rate each of the subcategories contained within the

main evaluation domains. Runyan, however, asserted that the

collective-bargaining agreement did not require him to rate the

individual subcategories and that he would not do so since the

evaluation clearly indicated the areas of concern regarding Warning’s

deficiencies.

At the close of this meeting, Principal Runyan told Beth that her

services would no longer be necessary at subsequent remediation

meetings. Warning objected and Beth asserted the position that

Warning was entitled to union representation because Warning’s job

was on the line. Principal Runyan, however, expressed his belief that

representation was neither necessary nor required at performance

based meetings.

The next scheduled meeting between Warning and Principal

Runyan was set for March 4, 2005. Beth accompanied Warning and,

according to notes Beth took, they again spent much of the time during

this second meeting requesting additional clarification as to the

specific performance objectives in which Warning was rated

unsatisfactorily. Beth’s notes indicated that she and Warning debated

with Runyan on the requirements of the Illinois Learning Standards.

Also, Warning tried to demonstrate to Principal Runyan how her

lesson plans were based on the Learning Standards, as well as her

students’ IEPs (Individual Education Plans). Beth noted that, at one

point during the meeting, Principal Runyan received a phone call. Beth

then directed Warning to retrieve her lesson plans and the Illinois

Assessment Book from her classroom. Upon her return, Beth and

Warning debated further with Principal Runyan over the application

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of the learning standards. Warning also tried to compare herself to

other teachers, asserting that she had spoken to other teachers at the

school and, in her opinion, they were not using the learning standards

she was now being required to implement. When this happened,

Principal Runyan complained that the remediation process was

becoming much too cumbersome and that Beth should not be present

at future meetings. Runyan believed that with Beth present the focus

remained on the evaluation procedure and general standards,

preventing them from working on Warning’s personal corrective

action plan. Principal Runyan told Warning that he just wanted her to

complete the corrective action tasks that he had assigned her.

Sometime after the March 4, 2005, meeting, Principal Runyan ran

into Warning in the hall. He asked to meet with her briefly and

Warning agreed and they went to Runyan’s office. There, Principal

Runyan tried to explain to Warning why he was not going to allow

Beth to be a part of the remediation meetings anymore. Warning,

however, said she would refuse to meet without representation and

began to read from her union card. Principal Runyan became upset,

jumped up from his chair and, in a loud voice, said, “I don’t care what

the card says.” Warning responded that she did not have to take this

treatment and walked out of the meeting.

On March 9, 2005, Principal Runyan visited Beth’s classroom and

asked to speak with her. He told Beth that he did not hold anything

against her personally, nor was he against the union, but that he had

discussed the situation with Dr. Pointer, executive director of SPEED,

and they had agreed that union representation was not appropriate at

Warning’s remediation meetings. Beth disagreed and asserted the

position that, because Warning might be subject to dismissal, she had

a right to union representation. Beth admitted that Principal Runyan

acted professionally when speaking with her. He also conceded that,

as a new principal, he was somewhat unfamiliar with the rules

concerning the right to union representation. Nevertheless, he

maintained that union representation in this situation was neither

appropriate nor necessary.

After this meeting, Beth wrote a memo to Principal Runyan, dated

March 17, 2005, asserting the position that Warning was entitled, by

the collective-bargaining agreement and her Weingarten rights, to have

representation of her choice, if she requests it. The next day, March 18,

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2005, Beth accompanied Warning to her next scheduled remediation

meeting. When they arrived at Principal Runyan’s office they saw that

Dr. Pointer was present. Dr. Pointer was quite upset and began the

meeting by advising Beth that she would no longer be permitted to

attend Warning’s remediation meetings. According to notes Beth took

of the meeting, Warning became emotional and expressed her belief

that “things were very negative against her” and that she felt she

needed the support of Beth’s representation because she really felt like

she was going to be terminated, and she still did not understand why

because her performance had not been substandard prior to that.

As the meeting progressed, Dr. Pointer countermanded herself

and agreed to permit Beth to attend Warning’s remediation meetings.

However, this permission was contingent on Beth’s promise to act as

a mere observer during the meetings. In other words, Beth was not

permitted to speak or participate in the meetings, communicate with

Warning during the meeting, or answer any questions directed at

Warning. In fact, Beth was told that if she tried to participate in the

meeting in any way, Principal Runyan was instructed to have her

removed from the meeting.

On March 22, 2005, Principal Runyan held another remediation

meeting to make up for the March 18 meeting that had been taken up

discussing Beth’s participation. Beth attended this meeting and,

according to her notes, Principal Runyan used this time to review

Warning’s lesson plans with her. Runyan also discussed with Warning

the methods she used in her classroom, as well as her communication

with staff and assignment of duties to peer professionals. According

to Beth, Principal Runyan appeared to be satisfied with Warning’s

lesson plans and the information she provided to him. He then gave

Warning a reading assignment–to read a chapter from a book that

Principal Runyan had shown Warning. When Principal Runyan

indicated that he would need the book back, Warning immediately

became upset and demanded to know how she was going to read a 53-

page chapter without access to the book. Beth noted that she

interceded, suggesting that Warning photocopy the chapter.

Beth also reported that during the March 22, 2005, meeting,

Principal Runyan broached the subject of Warning’s past difficulties

in “getting along with people.” Immediately, Warning became

defensive and wanted to know specifics, stating that she was “not

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familiar with what he was talking about.” When Principal Runyan

mentioned a particular situation involving a parent, Warning denied

there had been a problem, explaining that the parent did not speak

English and, for that reason, she told the parent to speak with the

social worker, who spoke Spanish.

Because of notice requirements under the collective-bargaining

agreement, Warning was given a “non-renewal letter” dated March 24,

2005, informing her that her teaching contract would not be renewed

for the following year due to performance reasons. However, Warning

was also advised by Dr. Pointer that her contract might still be

renewed if she successfully completed the corrective action plan.

On March 31, 2005, Principal Runyan sent a memo to Warning

indicating, once again, that Beth would not be permitted to attend her

corrective action plan meetings. In a letter to IEA UniServ Director

Janet Zitzer, dated April 6, 2005, Dr. Pointer explained the reason for

Principal Runyan’s renewed decision to exclude Beth–although Beth

had previously agreed to act as a mere observer at the remediation

meetings, Beth had, once again, begun to “insert” herself into the

discussions “in a different way.” Specifically, because Beth had agreed

not to speak at the meetings, she began passing notes back and forth

with Warning. Also, using her body language–such as nodding and

shaking her head–she made her feelings known to Warning. Dr.

Pointer wrote in the letter that she considered Beth’s behavior to be

“insubordinate,” “manipulative,” and “unacceptable.”

After meeting with Warning and Beth one final time on April 21,

2005, Principal Runyan prepared a written evaluation dated April 22,

2005, informing Warning that he was recommending that the District

not renew her contract. He noted that, although she had made

“demonstrated improvement” in the area of instruction, there had been

little growth in the area of communication. Principal Runyan wrote:

“During the time span you were working on the plan to

correct deficiencies, more concerns were raised due to your

lack of ability to communicate. You made the choice to be

late for several scheduled meetings and failed to participate in

a process that enabled you and me to communicate freely.

Your actions have created barriers in our ability to effectively

communicate. The process was tension driven and failed to

honestly develop to a relationship to move forward in this

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area.

During the planning time I had to present requests to you

in verbal and written format. You failed to consistently

provide prepared evidence when requested and seemed

inadequately prepared for our meetings. We were unable to

get into open dialog during our meeting time. During the

conversations you failed to see your role in the breakdown of

communications. The corrective process became cumbersome

and chaotic due to the choices you made.”

Having determined that Warning’s overall performance remained

unsatisfactory, Warning was advised on April 28, 2005, that her

teaching contract would terminate at the end of that school year.

In August 2005, Warning and the SPEED Education Association,

IEA-NEA (the Association), filed an unfair labor practice charge with

the IELRB against SPEED District 802. The complaint alleged that the

District dismissed Warning “in retaliation for Warning’s insistence on

having a fellow employee and Union representative assist her in

defending herself against the possibility of adverse employment

actions.” In a subsequent “Position Statement,” the plaintiffs

elaborated, stating: (1) Warning had insisted upon having union

representation at all of her meetings with the administration of SPEED

District 802 from December 2004 through the spring of 2005 and this

was a protected activity because she had the right to union

representation at these meeting pursuant to both the Illinois

Educational Labor Relations Act and the collective-bargaining

agreement, (2) that the District was aware that Warning was asserting

a right to union representation at the meetings she had with the

administration, and (3) that the District was hostile toward Warning

because she exercised her rights and, ultimately, took adverse action

against her, i.e., did not renew her contract, because she exercised her

right to have union representation accompany her to her remediation

meetings with the District.

The parties presented witness testimony and other evidence at a

hearing held before an Administrative Law Judge (ALJ) on November

28, 2006. In April 2007, the ALJ issued a recommended order, finding

that the District had violated section 14(a)(3) and, derivatively, section

14(a)(1), of the Act (115 ILCS 5/14(a)(1), (a)(3) (West 2004)). As a

result, the ALJ recommended that Warning be reinstated to her

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teaching position and awarded back pay. Also, because the dismissal

had come after Warning’s fourth probationary year, the ALJ

recommended that she be granted tenure.

The IELRB adopted the findings and recommendations of the

ALJ. Two members of the Board, however, did not agree that

awarding Warning tenure was a proper remedy.

The District then appealed the decision of the IELRB to the

appellate court. In a divided opinion, the appellate court affirmed. 392

Ill. App. 3d 628. Justice Garcia dissented. He believed that Warning

had no right to union representation at her postevaluation meetings

and, thus, he did not believe the evidence supported a finding that the

District discriminated against Warning as a result of union activity.

But, even if the evidence did support a finding that the District had

violated the Act, Justice Garcia believed that granting tenure was an

inappropriate remedy.

The District filed a timely petition for leave to appeal with this

court pursuant to Supreme Court Rule 315(b), and we granted the

petition. In addition, the Illinois Association of School Boards and the

Illinois Association of School Administrators were permitted to file an

amicus brief in support of SPEED District 802, and the Illinois

Federation of Teachers was permitted to file an amicus brief in support

of Warning and the Association.

ANALYSIS

Standard of Review

What we must decide in this case is whether the IELRB correctly

determined that SPEED District 802 violated section 14(a)(3) and,

derivatively, section 14(a)(1), of the Illinois Educational Labor

Relations Act (the Act), when it did not renew the teaching contract of

Warning, a nontenured, probationary teacher. The standards by which

we review the findings and decision of the IELRB are not in dispute.

The parties agree that judicial review of an IELRB decision is

governed by the Administrative Review Law (735 ILCS 5/3–101 et

seq. (West 1994)) and extends to all issues of law and fact presented

by the record. City of Belvidere v. Illinois State Labor Relations

Board, 181 Ill. 2d 191, 204 (1998). On issues of law, we review the

Board’s findings de novo; while findings on issues of fact are deemed

prima facie correct unless they are against the manifest weight of the

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evidence. City of Belvidere, 181 Ill. 2d at 204-05. Further, as we stated

in Board of Trustees of the University of Illinois v. Illinois Labor

Relations Board, 224 Ill. 2d 88, 97-98 (2007):

“[T]he clearly erroneous standard of review is proper when

reviewing a decision of the IELRB or the ILRB because the

decision represents a mixed question of fact and law.

[Citation.] An agency decision will be reversed because it is

clearly erroneous only if the reviewing court, based on the

entirety of the record, is “ ‘left with the definite and firm

conviction that a mistake has been committed.’ ” [Citation.]

While this standard is highly deferential, it does not relegate

judicial review to mere blind deference of an agency’s order.”

Sections 14(a)(1) and 14(a)(3) of the Act

In the case at bar, the Board decided that the District violated

section 14(a)(3) and, derivatively, section14(a)(1), of the Act (115

ILCS 5/14(a)(1), (a)(3) (West 2004)). Section 14, entitled “Unfair

Labor Practices,” provides in pertinent part:

“(a) Educational employers, their agents or representatives

are prohibited from:

(1) Interfering, restraining or coercing employees in the

exercise of the rights guaranteed under this Act.

***

(3) Discriminating in regard to hire or tenure of

employment or any term or condition of employment to

encourage or discourage membership in any employee

organization.” 115 ILCS 5/14(a)(1), (a)(3) (West 2004).

It has been held that section 14(a)(1) refers to adverse action taken

against an employee as a result of any protected concerted activity,

while section 14(a)(3) refers specifically to discrimination based on

union activity. See Bloom Township High School District 206 v.

Illinois Educational Labor Relations Board, 312 Ill. App. 3d 943, 957

(2000). Where, as here, an alleged violation of sections 14(a)(1) and

14(a)(3) stems from the same conduct, the section 14(a)(1) violation

is said to be derivative of the section 14(a)(3) violation. Bloom

Township, 312 Ill. App. 3d at 957. In such cases, the test to be applied

is the one used to determine whether a section 14(a)(3) violation

occurred. Bloom Township, 312 Ill. App. 3d at 957. A prima facie case

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of a section 14(a)(3) violation requires proof that the employee was

engaged in activity protected by section 14(a)(3); that the District was

aware of that activity; and that the employee was discharged for

engaging in that protected (union) activity. Board of Education, City

of Peoria School District No. 150 v. Illinois Educational Labor

Relations Board, 318 Ill. App. 3d 144, 150 (2000). The third part of

the test is established if the employee’s protected activity was a

substantial or motivating factor for the discharge or other adverse

action taken against the employee. Hardin County Education Ass’n v.

Illinois Educational Labor Relations Board, 174 Ill. App. 3d 168, 174

(1988). Since motive is a question of fact, a Board’s finding as to

motive can only be set aside if it is against the manifest weight of the

evidence. City of Burbank v. Illinois State Labor Relations Board, 128

Ill. 2d 335, 345 (1989); Bloom Township, 312 Ill. App. 3d at 957.

However, even if a prima facie showing has been made, there can be

no finding that an unfair labor practice occurred if the employer can

demonstrate, by a preponderance of the evidence, that the adverse

action would have occurred notwithstanding the protected activity.

City of Burbank, 128 Ill. 2d at 346; Board of Education, City of Peoria

School District No. 150, 318 Ill. App. 3d at 150.

In the case at bar, the District challenges the Board’s decision that

it committed an unfair labor practice on two grounds. First, the District

contends that the first prong of the test used to prove a section 14(a)(3)

violation was not satisfied. The District argues that Warning was not

engaged in a protected union activity when she insisted on having

representation at her remediation meetings. Second, the District

contends that, even if a prima facie case was made, the manifest

weight of the evidence supports a finding that Warning’s contract

would not have been renewed in any event, due to deficiencies in her

teaching and communication skills. Accordingly, the District asks us

to find that the Board’s decision, finding that the District committed

an unfair labor practice, is clearly erroneous.

Protected Activity

We first consider the District’s contention that the Board erred

when it found that Warning made out a prima facie case of a section

14(a)(3) unfair labor practice. As noted above, for the Board to have

found that Warning demonstrated a prima facie case of a section

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14(a)(3) violation, and derivatively a section 14(a)(1), violation, the

Board had to find that Warning satisfied her initial burden of proving

that she had been discriminated against (i.e., discharged) because she

had engaged in an activity protected by section 14(a)(3) (i.e., union

activity).

Warning and the Association alleged in the complaint against the

District that Warning was engaged in a protected activity when she

insisted on union representation at her remediation meetings. Warning

and the Association contended that Warning was entitled to union

representation by both the Labor Act and the collective-bargaining

agreement between the Association and SPEED District 802. Before

the ALJ, they pointed to section 3–10 of the collective-bargaining

agreement, which provides:

“A bargaining unit member shall be entitled to have

present a representative of the Association during any meeting

which leads to disciplinary action.”

They argued that, because Warning’s remediation meetings with

Runyan had the potential of resulting in adverse action, i.e., Warning’s

dismissal, she had the right to representation under the agreement.

The District challenged this allegation, noting that section 3–10

of the collective-bargaining agreement further provides that

“disciplinary action is not performance based.” Thus, the District

maintained that, because remediation meetings are performance based,

the collective-bargaining agreement did not afford Warning a right to

union representation and, therefore, there was no evidence that

Warning suffered any adverse action as a result of her participation in

a protected union activity.

In resolving this controversy, the ALJ agreed that section 3–10 of

the collective-bargaining agreement defined “disciplinary action” as

“not performance based.” Nevertheless, the ALJ dismissed the

District’s argument in one sentence, stating: “There is no evidence,

however, that the contractual provision was intended to waive a non-

tenured teacher’s Weingarten rights to union representation during an

investigatory conference.”

In National Labor Relations Board v. Weingarten, 420 U.S. 251,

43 L. Ed. 2d 171, 95 S. Ct. 959 (1975), it was held that an employer

violated section 8(a)(1) of the NLRA–the model for our section

14(a)(1)–when it denied an employee’s request for union

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representation at an “investigatory interview” which the employee

reasonably believed would result in discipline. The ALJ found that

remediation meetings are “investigatory,” relying on Summit Hill

School District 161, 4 Pub. Employee Rep. (Ill.) par. 1009, No.

86–CA–0090–C (IELRB December 1, 1987).

It is true that, in Summit Hill, the IELRB found that remediation

meetings were “investigatory.” However, that is only one of the

IELRB’s findings in that case, which the ALJ selectively adopted.

Summit Hill involved a tenured teacher who was denied union

representation at postobservation (remediation) meetings held during

the one-year remediation period required for tenured teachers by the

School Code. When asked to determine whether this denial of

representation was an unfair labor practice, the IELRB in Summit Hill

held:

“Under the Education Reform Act, the remediation process

may lead to one of two results: successful remediation or

discharge. One purpose of the process is to alert the teacher to

perceived problems and provide the teacher with a one-year

opportunity to improve. *** However, discipline may be

imposed at the end of the one-year remediation period if the

teacher has not received a ‘satisfactory’ or better rating. Ill.

Rev. Stat. Ch. 122, pars. 24A–5(i) and (j). In other words,

attempted remediation is a required preliminary step for the

alternative result under the Education Reform Act, dismissal.

If improvement is not shown, the employee may expect the

commencement of the dismissal process, during which the

observations of a teacher undergoing remediation and the

reports of such observations may very well be used as

‘evidence’ to support the district’s case for dismissal. Thus,

a teacher may reasonably fear that that [sic] at least some, if

not all, post-observation conferences may ultimately lead to

discharge.

Nevertheless, we conclude that the right to have union

representation as a matter of law does not attach to post-

observation conferences ***.” (Emphasis added.) 4 Pub.

Employee Rep. (Ill.) par. 1009, at IX–32.

The IELRB then explained that educational labor laws in Illinois

do not provide for union representation in remediation. One reason is

-19-

that postobservation conferences are required by the State Board of

Education and, therefore, “an employer is not free, as in the private

sector or the usual investigatory interview, to discontinue a

postobservation conference and proceed to obtain information from

other sources.” Furthermore, “discontinuance would also undermine

one of the goals of the conference which is to discuss and correct

deficiencies.” Accordingly, the IELRB concluded in Summit Hill that,

since the law did not afford a tenured teacher the right to union

representation at postobservation conferences, if such a right was to

exist, it would have to be contained in the collective-bargaining

agreement, but was not.

In the present case, the ALJ found that the Board’s holding in

Summit Hill did not extend to nontenured teachers. Its rationale for this

determination was that Warning’s remediation period was much

shorter, lasting only from March 1 to May 1, 2005, and that “the union

representative whom Warning repeatedly requested *** was her

representative to protect her interests against unjust dismissal and,

similarly, the interests of all non-tenured teachers under remediation.”

The ALJ then recommended that the Board rule that the District

violated section 14(a)(3) of the Act.

The Board subsequently adopted the ALJ’s recommendation. In

its written order, the Board, addressing the contested issue of whether

Warning had engaged in protected activity, stated:

“Here, Warning engaged in union activity when she

invoked representation by Association grievance

representative Beth Wierzbicki. In Chicago Board of

Education, 22 PERI 143, Case No. 2004–CA–0061–C

(IELRB, April 11, 2006), the Illinois Educational Labor

Relations Board (‘IELRB’) ruled that an employee engaged

in union activity when he sought the union’s assistance in

disciplinary matters and when union representatives

accompanied him to pre-disciplinary meetings.”

However, in the cases cited by the Board, the employees who

were found to have engaged in union activity had a right to union

representation. The Board never addressed the District’s claim that

Warning was not engaged in protected activity because she was not

entitled to union representation at her remediation meetings. Instead,

the Board stated: “It is unnecessary for us to decide whether denying

Warning union representation at the post-evaluation meetings would

-20-

have been an unfair labor practice under Summit Hill School District

161, 4 PERI 1009, Case No. 86–CA–0090–C (IELRB, December 1,

1987) and NLRB v. Weingarten, 420 U.S. 251 (1975).” The Board

reasoned that this was so because “in this case it is not alleged that the

District violated the Act by denying Warning union representation.”

The District timely appealed the Board’s ruling to the appellate

court, again arguing that, to prove an unfair labor practice under

section 14(a)(3), it was imperative that Warning show that she had

engaged in a protected activity. The District further argued that the

Board was clearly erroneous in finding that Warning engaged in a

protected activity because Warning did not have the right to union

representation at her postobservation remediation meetings. The

appellate court disagreed with the District, stating:

“We agree with the holding in Summit Hill School District

161, 4 Pub. Employee Rep. (Ill.) par. 1009 n.7, No.

86–CA–0090–C, at IX–33 (IELRB December 1, 1987)

(hereinafter 4 Pub. Employee Rep. (Ill.) par. 1009), where the

Board determined that since postobservation remedial

meetings can sometimes result in a teacher’s discharge, the

suggestion that such meetings were not ‘investigatory’ must

be rejected. We agree with the Board that Warning was

engaged in a protected activity when she requested union

representation during her remedial meetings with Runyan.

See, e.g., Georgetown-Ridge Farm Community Unit School

District No. 4 v. Illinois Educational Labor Relations Board,

239 Ill. App. 3d 428, 464, 606 N.E.2d 667 (1992) (employee

engaged in protected activity by seeking the assistance of

union representative concerning reduction of hours and filing

of complaint); Abuzir, 22 Pub. Employee Rep. (Ill.) par. 143,

at 553 (employee engaged in protected activity when union

representative accompanied him to predisciplinary

meetings).” 392 Ill. App. 3d at 636-37.

This is the sum total of the discussion on the District’s main claim

on appeal. Justice Garcia dissented, however, stating, “Warning’s

desire to have union representation at her postevaluation meetings

[could not be transformed] into union activity when no such right

exists under the collective bargaining agreement between SPEED

District 802 and SPEED Education Association.” 392 Ill. App. 3d at

642 (Garcia, J., dissenting). Justice Garcia also believed that the Board

-21-

had improperly side-stepped this issue, stating:

“Either Ms. Warning had the right to have union

representation at the postevaluation meetings or she did not.

If she did not, Speed District 802 was well within its

‘supervisory authority’ to restrict union representation at the

postevaluation meetings to a nonactive role.” 392 Ill. App. 3d

at 641 (Garcia, J., dissenting).

Now, before this court, the District asks us to find that the Board

and the appellate court improperly determined that Warning engaged

in a protected activity when she insisted on having union

representation at her remediation meetings. The District maintains–as

it has from the beginning–that Warning had no right to union

representation at her postobservation conference and remediation

meetings with Principal Runyan. Accordingly, the District contends

that the Board’s decision that it committed an unfair labor practice

when it dismissed Warning is clearly erroneous. We agree.

Warning, the Association and the Board continue to maintain that

Warning engaged in protected union activity when she asked for and

received union representation at her evaluation conference and

postobservation remediation meetings. They contend, “there is no

issue here of whether Warning had a right to union representation

during the meetings; the Board did not make, nor did it have to make,

that determination.” In their view, “the District’s right-based argument

comes too late because the District failed to enforce its view that

Warning did not have a right to representation.” Based on this

rationale, they claim the District’s rights-based assertion is

“irrelevant.” They contend “the issue here is not whether Warning had

the right to Union representation, because it was never denied her, or

whether that right was waived by contract, but rather, once she

engaged Union representation during the meetings, the District

retaliated against her and discharged her for doing so.”

We reject the argument that if the District did not believe that

Warning was entitled to union representation at her remediation

meetings, it should have refused to meet with her under those

conditions and then sought a ruling on whether their action was an

unfair labor practice. As explained in Summit Hill, imposing such a

requirement is impractical, if not impossible. The District, unlike other

employers, does not have the discretion to discontinue remediation and

attempt to obtain information from other sources. Warning was a

-22-

fourth-year probationary teacher and under section 3–9 of the

collective-bargaining agreement she could not be dismissed for

performance reasons without the District establishing at least one

documented attempt to correct deficiencies. Thus, the District was not

free to discontinue remediation.

Further, it is counterintuitive–particularly with regard to

nontenured teachers where the remediation period is brief–to require

the District to discontinue corrective meetings and seek a ruling on

whether a teacher has the right to union representation. As stated in

Summit Hill, such a requirement would undermine the goal of

remediation conferences, which is to correct deficiencies.

We believe the District acted reasonably in this situation. It

permitted Warning to have a union representative accompany her to

her remediation meetings despite its belief that she was not entitled to

that right.5 Also, we agree with Justice Garcia that Warning’s

insistence on having union representation at her remediation meetings

did not automatically transform this situation into a protected union

activity. An employee engages in protected union activity only when

the employee’s actions invoke a right under the law or the collective-

bargaining agreement. As Warning and the Association concede in

their brief, the United States Supreme Court concluded in National

Labor Relations Board v. City Disposal Systems, Inc., 465 U.S. 822,

79 L. Ed. 2d 839, 104 S. Ct. 1505 (1984), that “employees engage in

protected activity when invoking contractual rights because that

activity is a direct extension of collective bargaining.”

In the case at bar, Warning’s proof that she engaged in a protected

union activity is lacking because she has provided no evidence that she

was entitled, either by law or contract, to union representation at

remediation meetings. As stated in Summit Hill, even though

remediation meetings are “investigatory,” the right to union

representation does not attach by law and, to exist, must be contracted

for through collective bargaining. The collective-bargaining agreement

5

It should be noted here that two other teachers were placed on

corrective action plans at the same time as Warning. Both of these teachers

were permitted to have union representation at their remediation meetings.

One teacher voluntarily left her position without completing the corrective

action plan. The other teacher successfully completed his corrective action

plan and had his teaching contract renewed.

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here does not explicitly give employees the right to union

representation at remediation meetings. Rather, our reading of the

contract indicates to us that the right to union representation does not

attach to postobservation conferences and remediation, where the

possible “disciplinary action” the employee faces is performance

based. We reach this conclusion based on section 3–8(F) of the

collective-bargaining agreement, which specifically provides,

“Evaluative conclusions and remediation decisions are made in the

sole discretion of the evaluating supervisor and are non-grievable and

non-arbitrable.” This being so, a union representative would have no

official role to play at postobservation conferences and remediation

meetings.

We conclude, therefore, that Warning failed to prove that she was

entitled to union representation. And if Warning did not have a right

to union representation, then Warning and the Association failed to

prove that Warning was engaged in union activity when she insisted

on having union representation at her evaluation conference and

remediation meetings and when she chose to follow her

representative’s lead in taking an assertive and confrontational stance

with regard to her evaluation and the administration’s attempts to

provide corrective instruction.

Without a showing of protected activity, there can be no finding

that the District discriminated against Warning for engaging in

protected activity. We find, therefore, that Warning and the

Association failed to prove the District violated section 14(a)(3) of the

Act. As a result, we find the Board’s decision, that the District

committed an unfair labor practice when it failed to renew Warning’s

teaching contract, is clearly erroneous.

In light of our conclusion that the District’s actions did not

constitute an unfair labor practice, we need not consider whether

reinstating Warning to a tenured position was an appropriate remedy.

CONCLUSION

For all the reasons stated above, we reverse the judgment of the

appellate court and set aside the decision of the IELRB that SPEED

District 802 committed an unfair labor practice when it failed to renew

Rachel Warning’s teaching contract. The cause is remanded to the

Board for further proceedings consistent with this opinion.

-24-

Appellate court judgment reversed;

Illinois Educational Labor Relations Board decision set aside;

cause remanded.

CHIEF JUSTICE KILBRIDE, dissenting:

I agree with the dissent’s analysis with two exceptions. First, on

the unfair labor practice discussion, I believe the dissent’s application

of Weingarten and Summit Hill is unnecessary given the facts of this

case. As noted by the Illinois Educational Labor Relations Board,

Warning was not denied union representation. Instead, she alleged that

the District retaliated against her for having union representation at the

meetings during the 2004-05 school year. Thus, it is unnecessary to

decide whether denying Warning union representation at those

meetings would have been an unfair labor practice under Weingarten

and Summit Hill.

Warning engaged in protected union activity by having union

representation at the meetings, as permitted by the collective-

bargaining agreement. I agree with the dissent that Warning was

entitled to union representation at those meetings and her teaching

contract was not renewed based on her exercise of that right. The

Board correctly determined that the District committed an unfair labor

practice by not renewing Warning’s teaching contract for engaging in

protected union activity. Accordingly, I join in the dissent’s conclusion

that the Board did not err in finding the District committed an unfair

labor practice.

Second, I disagree with the dissent’s analysis of the remedy for

the unfair labor practice. Under the Illinois Educational Labor

Relations Act, the Board is not only empowered to order a party

committing an unfair labor practice to stop the unfair practice, but may

also “take additional affirmative action.” (Emphasis added.) 115 ILCS

5/15 (West 2004). The Board’s purpose in fashioning a remedy in an

unfair labor practice case is to “make-whole” the parties by placing

them “ ‘in the same position they would have been in had the unfair

labor practice not been committed.’ [Citation.]” Paxton-Buckley-Loda

Education Ass’n v. Illinois Educational Labor Relations Board, 304

Ill. App. 3d 343, 353 (1999). The Board has “ ‘substantial flexibility

and wide discretion to ensure that victims of unfair labor practices be

returned to the position that would have obtained had the illegal

-25-

conduct not occurred.’ [Citation.]” Paxton-Buckley-Loda Education

Ass’n, 304 Ill. App. 3d at 353-54. The Board’s remedial orders are

reviewed for abuse of discretion. Paxton-Buckley-Loda Education

Ass’n, 304 Ill. App. 3d at 353.

Here, the Board adopted the administrative law judge’s

recommendation reinstating Warning to her teaching position and

awarding back pay. The Board determined that reinstatement of

Warning’s teaching position was the appropriate remedy for the

nonrenewal of her teaching contract because it placed her in the

position that would have existed had the unlawful nonrenewal not

occurred. The Board certainly had the authority to reinstate Warning’s

employment following the nonrenewal of her teaching contract. In

fact, reinstatement of employment was the only remedy that could

“make-whole” Warning for the unlawful nonrenewal. The Board did

not abuse its discretion in ordering this remedy.

The reinstatement of Warning’s employment would have resulted

in tenure by operation of the School Code because she was dismissed

at the end of her fourth and final probationary year. If her employment

were reinstated, Warning would have completed her probationary

period and entered into contractual continued service under section

24–11 of the School Code (105 ILCS 5/24–11 (West 2004)).

Contrary to the dissent, the Board had the authority to order the

reinstatement of Warning’s teaching contract with the consequence

that she receive tenure. Section 14(a)(3) of the Act prohibits

discrimination “in regard to hire or tenure of employment or any term

or condition of employment to encourage or discourage membership

in any employee organization.” (Emphasis added.) 115 ILCS

5/14(a)(3) (West 2004). By not renewing Warning’s teaching contract

at the end of her final probationary year based on her protected union

activity, the District discriminated “in regard to *** tenure of

employment.” The denial of tenure was a direct result of the

nonrenewal of Warning’s teaching contract.

Under section 14(a)(3), denial of tenure based on the exercise of

protected union rights is unlawful. The Board’s authority must include

the power to remedy the unlawful deprivation of tenure based on

protected union activity. The Board, therefore, had the authority under

the Act to order the “make-whole” remedy of reinstating Warning’s

teaching contract with the consequence that she receive tenure.

Further, Warning’s acquisition of tenure as a result of the

-26-

reinstatement of her employment would not interfere with the

District’s legitimate interest in overseeing tenure decisions. The record

indicates that prior to the protected union activity in this case,

Warning’s performance had always been rated at least “standard” or

satisfactory. Warning received “standard” or satisfactory ratings in

each of her first three years of employment with the District. She

received a rating of “professional,” “excellent,” and “outstanding” in

the fall of her fourth and final probationary year. It was only after

Warning was subsequently admonished about using inappropriate

language with a paraprofessional and sought the assistance of a union

representative that questions were raised about her performance. The

meetings following that admonition when Warning requested union

representation led to the nonrenewal of her teaching contract.

As the dissent clearly establishes, Warning was entitled to union

representation at those meetings and the record shows her teaching

contract was not renewed based on her exercise of that protected right.

The record indicates that Warning’s teaching contract would have been

renewed and she would have acquired tenure if she had not been

discharged based on an unfair labor practice.

I recognize that the District has a legitimate interest in overseeing

tenure to assure continuous service by teachers of ability and

experience. See Johnson v. Board of Education of Decatur School

District No. 61, 85 Ill. 2d 338, 344 (1981). The District’s tenure

decisions must be based on lawful considerations, however. The

nonrenewal of Warning’s teaching contract was based on her protected

union activity, and the District does not have a legitimate interest in

denying a probationary teacher tenure based on an unfair labor

practice. Thus, the fact that Warning would have acquired tenure

through the Board’s reinstatement of her employment does not

interfere with the District’s legitimate interest in overseeing tenure

decisions.

Based on these circumstances, I conclude that the Board did not

abuse its discretion in reinstating Warning’s employment. The

reinstatement of employment would have resulted in tenure. There is

no need for an additional probationary year because the District never

identified any legitimate concern with Warning’s performance. In my

view, the appellate court properly confirmed the Board’s decision and

I would affirm the appellate court’s judgment. Accordingly, I

respectfully dissent.

-27-

JUSTICE FREEMAN, dissenting:

I believe that Warning was entitled to union representation at the

meetings during the 2004-05 school year. Therefore, I would affirm in

part the judgment of the appellate court (392 Ill. App. 3d 628), which

confirmed the decision of the Illinois Educational Labor Relations

Board (Board). I would uphold the Board’s determination that SPEED

District 802 (District) committed an unfair labor practice when it

dismissed Warning. However, I disagree with the Board that tenure is

the proper remedy. Rather, I would restore Warning to a final

probationary year. Accordingly, I respectfully dissent.

I. BACKGROUND

The District is a special education joint agreement district

comprised of 15 member school districts that pool their resources to

provide special education services to students of all age and grade

levels who have a range of disabilities. The District employed Warning

as a teacher. As mandated by section 24–11 of the School Code,

Warning had a probationary period of four consecutive years.

However, after the four-year probationary period, Warning would have

entered “contractual continued service,” i.e., tenure. See 105 ILCS

5/24–11 (West 2004).6

A. Employment Documents

A collective-bargaining agreement exists between the District and

the SPEED Education Association/IEA-NEA (Association or Union).

The District’s evaluation and remediation procedures are set forth in

the parties’ collective-bargaining agreement, supplemented by the

District’s employee handbook. This case turns on the correct

interpretation and application of the agreement. Because the majority

opinion omits a comprehensive recitation of the evaluation and

6

This court cites section 34–84 of the School Code (105 ILCS 5/34–84

(West 2004)) for this four-year probationary period. Slip op. at 6 n.2. This

section provides specifically for appointments and promotions of teachers

in cities having a population exceeding 500,000 persons. However, section

24–11 expressly states: “The employment of any teacher in a program of

a special education joint agreement *** shall be under this and succeeding

Sections of this Article.” 105 ILCS 5/24–11 (West 2004).

-28-

remediation procedures in the collective-bargaining agreement, I

discuss the relevant provisions in detail.

Section 3–8 of the agreement, captioned “Employee Evaluation,”

begins by declaring that “all evaluations shall be conducted in good

faith *** and in accordance with the provisions of this Agreement. The

criteria and procedures contained herein shall be applied uniformly

through [the District].” Subsection A provides that teachers shall be

formally evaluated at least once during each nontenured year.

Subsection B provides: “Prior to October 1, employees will be

informed as to who will be responsible for each employee’s

supervision and evaluation. At this time, the evaluation procedure and

instrument to be used for the school year will be reviewed and each

employee shall receive a complete copy of the evaluation instrument.”

Subsection B further provides that the evaluation of all teachers shall

be completed by March 1.

Section 3–8C details the evaluation process. A qualified

administrator must evaluate each teacher through personal observation.

Each District supervisor must hold a pre-evaluation conference with

each teacher to discuss expectations, and to set the specific dates and

times for observations. Each evaluation must be conducted with not

less than two on-the-job site observations for no less than 30

consecutive minutes for each observation. The second observation

must be separated from the first by at least one work day. After the

first observation, the teacher and the evaluator must discuss strengths

and weaknesses. They will determine the need for additional activities,

observations, and technical assistance, and decide a schedule for these

activities. The completed formal evaluation must be reduced to writing

and submitted to the teacher no later than March 1.

The teacher must receive a written evaluation within five school

days of the final observation. Between 24 hours and five school days

after receipt of the written evaluation, a postevaluation conference

must take place at a mutually agreeable date and time. An evaluation

should include specific reasons for the ratings given. Any teacher who

receives any unsatisfactory rating, but is not placed on a remediation

plan, must be provided specific suggestions for improvement,

developed by the evaluator and the employee.

Significantly, section 3–8F provides: “Evaluative procedures,

contained herein, are subject to the grievance procedure. Evaluative

conclusions and remediation decisions are made in the sole discretion

-29-

of the evaluating supervisor and are non-grievable and non-arbitrable.”

(Emphasis added.) Section 7H of the employee handbook, labeled

“Staff Evaluation Procedures,” supplements the collective-bargaining

agreement as follows: “Evaluative procedures, contained herein,

including those pertaining to employee remediation, are subject to the

grievance procedure.” (Emphasis added.)

Section 3–9 of the collective-bargaining agreement is labeled

“Remediation of Staff.” Subsection B provides that nontenured

teachers in the third or fourth probationary year will not be dismissed

for performance reasons without at least one documented attempt to

correct deficiencies. Subsection D provides: “Remediation of staff for

performance based reasons shall not be subject to grievance and/or

arbitration.”

Section 3–10 of the collective-bargaining agreement is labeled

“Employee Discipline.” Subsection A provides: “A bargaining unit

member shall be entitled to have present a representative of the

Association during any meeting which leads to disciplinary action. ***

A bargaining unit member may choose which union representative is

present provided it does not unreasonably delay the meeting.

Disciplinary action is not performance based.” Subsection B provides

a nonexclusive and nonhierarchical list of disciplinary consequences

that include: “written warning; copy placed in employee’s personnel

file, with duration of time to remain in file stated in letter” and

“dismissal.” Subsections C and D provide: when the District

determines to hold a disciplinary meeting, the employee shall be

informed of the violation that is to be discussed; disciplinary decisions

resulting from the meeting shall be reduced to writing and presented

to the employee; and no bargaining unit member shall be dismissed or

suspended without pay for disciplinary reasons without at least one

documented attempt by a supervisor with a 12-month period to correct

the behavior.

In sum, the District must conduct all teacher evaluations

according to the collective-bargaining agreement, supplemented by the

employee handbook. Evaluation conclusions and remediation

decisions are nongrievable. However, evaluative procedures, including

those pertaining to employee remediation, are grievable. Further,

section 7–1A of the collective-bargaining agreement defines a

“grievance” as a complaint by a teacher or the Union that there has

been a “violation, misinterpretation, or misapplication” of the

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collective-bargaining agreement. Also, a teacher is entitled to union

representation for disciplinary matters. These provisions memorialize

the relationship between the District and the Union as it pertains to

teacher evaluation and remediation. Thus, whether a nontenured

teacher is entitled to union representation at an employment meeting

with the District depends on how the meeting is characterized and the

nature of the teacher’s grievance.

B. Warning’s Meetings With District Personnel

Beginning in the 2001-02 school year, Warning was employed by

the District as a full-time teacher of high-school-age students with

severe physical disabilities in its Program for Adaptive Learning

(PAL). During each of her first three probationary years, Warning

received from PAL Principal Kathy Call an overall summative

evaluation rating of “standard,” i.e., satisfactory. During the 2002-03

school year, Warning’s second probationary year, Principal Call

expressed concerns regarding Warning’s performance. However,

Warning ultimately received an evaluation rating of “standard” for the

2002-03 school year, and her employment contract was renewed. For

the 2003-04 school year, Principal Call gave Warning an overall rating

of “standard.”

The 2004-05 school year was Warning’s fourth and final

probationary year. Principal Call was replaced by the new PAL

principal, Benoit Runyan. In the fall of 2004, Warning was notified,

pursuant to section 3–8B of the collective-bargaining agreement, that

Assistant Principal Julie Egan would evaluate her during that school

year. After observing Warning’s classroom in November 2004, Egan

rated Warning as “professional,” “excellent,” and “outstanding.”

On December 8, 2004, District Human Resources Director Dr.

Genevra Clasberry sent a memorandum to Warning, which stated in

full:

“On Friday, December 3, 2004, a substitute paraprofessional

reported to me that you had used inappropriate language with

her prior to the Holiday break. I discussed the incident with

you while the substitute was present and you stated that you

did use the language but it was in the context of ‘joking.’

After further investigation, a paraprofessional present during

the incident confirmed that inappropriate language was used.

She stated that she did not feel that the language was directed

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towards anyone or meant to be derogatory. However, as Mr.

Runyan and I discussed with you in the presence of Beth

Wierzbicki (Union representative), inappropriate language

should not be used in the classroom setting regardless of the

context. Furthermore, this is the second incident during your

employment with [the District] in which a substitute

paraprofessional expressed concerns about the use of

inappropriate language. As Mr. Runyan and I discussed with

you, this behavior is unacceptable and must be corrected

immediately. Your interaction with all staff must be

professional and appropriate for the school setting. The

following are expectations of you in the future:

• You will refrain from using inappropriate language in

the classroom. Another report could result in

disciplinary action up to dismissal.

• You will be responsible for selecting and participating

in training focusing on building your skills in

interacting with adults in the school setting. You must

receive approval from Mr. Runyan prior to

participating.

• You will meet with Mr. Runyan and I prior to the end of

the school year to discuss your progress.

*This memo will remain in your personnel file for the

duration of your employment with [the District].” (Emphases

added.)

The record further indicates that Warning requested union

representation at this disciplinary meeting, and that Wierzbicki spoke

on Warning’s behalf. Additionally, in a written response, Warning

admitted, explained, and apologized for the inappropriate language.

She concluded: “I will continue to refrain from using inappropriate

language and I will participate in training sessions.”

On February 15, 2005, Warning had her second classroom

observation for the 2004-05 school year pursuant to section 3–8 of the

collective-bargaining agreement. Approximately one week prior to the

observation, Warning was notified that Principal Runyan, rather than

Assistant Principal Egan, would conduct the observation. Principal

Runyan did not hold a preobservation conference with Warning in

contravention of section 3–8C of the collective-bargaining agreement.

Warning testified that Runyan’s observation lasted only approximately

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20 minutes, also in violation of section 3–8C.

According to paragraph 15 of the parties’ “Joint Statement of

Uncontested Facts,” on March 1, 2005:

“Warning had a meeting with Principal Runyan to discuss

Runyan’s recent observation of Warning’s class. Warning

requested Union representation at this meeting and was

accompanied by Wierzbicki. At this meeting, Runyan

provided Warning with a summative evaluation in which he

gave Warning unsatisfactory rating[s] in instructional

planning and development, management of instructional time,

instructional presentation and feedback, [and] communication

and professional responsibilities. Runyan stated in his

evaluation of Warning that due to the overall summative

rating of unsatisfactory, it was his recommendation that

Warning be placed on a plan to correct her deficiencies.

Runyan attached a corrective deficiency plan to his evaluation

and stated that *** Warning must take corrective actions by

May 1, 2005, or Runyan would recommend her termination.

At the meeting, Warning asked that Mr. Runyan separately

rate each objective cited in her evaluation. Runyan denied

Warning’s request, stating that he would not separately rate

each objective, that he was not required to do so and that he

had never done so in the past. Wierzbicki responded that

Runyan had rated each of the objectives in her [Wierzbicki’s]

evaluation separately. Wierzbicki was evaluated using a

different instrument than Warning. At the conclusion of the

meeting, Runyan stated that Wierzbicki would not be needed

at any further meetings. Warning responded that she wanted

Union representation. Runyan stated that ‘having the Union

involved just makes the situation more complicated, I would

rather just go through giving you instructions.’ ”

Warning and Wierzbicki each testified at the administrative hearing.

According to their testimony, Principal Runyan’s evaluative

procedures did not conform to the format prescribed by the employee

handbook. Warning brought the handbook to the meeting, where she

and Wierzbicki pointed to the prescribed evaluation format that

Runyan should have used. As the meeting progressed, Runyan’s

demeanor was described as growing increasingly “nervous,”

“agitated,” “impatient,” and “angry.”

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Also on March 1, 2005, Principal Runyan sent a letter to Dr. Betty

Pointer, the District executive director, informing her that he presented

a corrective deficiency plan to Warning at the meeting with

Wierzbicki. In this letter, elsewhere in the record designated a

“Corrective Action Plan,” Principal Runyan identified two areas of

concern: (1) Warning’s “communication with classroom support

personnel,” and (2) her “instructional presentation.” The plan

described the first issue as follows:

“During the school year we had one identified incident that

was discuss[ed] with Dr. [Clasberry] (Director of Human

Resource[s]) and myself. During our meeting it was brought

to my attention that this was the second incident within one

calendar year related to inappropriate comments directed

towards a paraprofessional supporting you in the classroom.

I shared with you during the year that some support staff

members have felt intimidated in your classroom setting. As

a classroom instructor you have the responsibility of setting

the tone and climate in modeling appropriate

communications/actions with all students and staff members

within classroom and building setting [sic].”

This paragraph plainly references the events memorialized in Dr.

Clasberry’s December 8, 2004, disciplinary memorandum to Warning.

Wierzbicki accompanied Warning to subsequent meetings, where

they debated the evaluative procedures with Principal Runyan and

other District personnel, who consistently stated that they did not want

Wierzbicki to participate at these meetings. Slip op. at 10-12. On

March 24, 2005, the District’s governing board gave Warning notice

of dismissal and nonrenewal of her teaching contract at the end of the

2004-05 school year. On the same day, Dr. Pointer notified Warning

that the “notice of dismissal and non-renewal is contingent on the

successful completion of the Corrective Action Plan.” On April 28,

2005, Dr. Pointer notified Warning that her teaching contract with the

District would terminate at the end of the 2004-05 school year. The

letter cites “the unsuccessful attempt to correct deficiencies that were

outlined in [Principal Runyan’s March 1, 2005, corrective deficiency

plan].” See slip op. at 10-14. Additional pertinent background will be

discussed in the context of my analysis of the issues.

II. ANALYSIS

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In the present case, the initial question presented is whether the

District committed an unfair labor practice in violation of section

14(a)(3) and, derivatively, section 14(a)(1) of the Illinois Educational

Labor Relations Act (IELRA or Act) (115 ILCS 5/14(a)(1), (a)(3)

(West 2004)). If so, the next question is whether the grant of tenure to

Warning was the appropriate remedy.

A. Unfair Labor Practice

The primary issue in this case is simple: Was Warning engaged

in a protected union activity when she insisted on having Wierzbicki

attend the meetings at issue during the 2004-05 school year? The court

holds that she was not. I disagree with this conclusion because the

collective-bargaining agreement allowed for such representation.

Having concluded that Warning was legally entitled to have

Wierzbicki present at the meetings, I have no trouble accepting the

Board’s finding that the District terminated Warning because she had

engaged in protected union activity.

To properly analyze this issue, the first step is to identify the

situations in which the parties’ collective-bargaining agreement

confers the right to representation. When an employer and a labor

union bargain about a subject and memorialize that bargain in a

collective-bargaining agreement, they create a set of rules governing

their future relations. National Labor Relations Board v. United States

Postal Service, 8 F.3d 832, 836 (D.C. Cir. 1993). Rights to union

representation must be based upon, and may be limited by, the

collective-bargaining agreement. See Ryan v. Union Pacific R.R. Co.,

286 F.3d 456, 459 (7th Cir. 2002). Further, courts read collective-

bargaining agreements as a whole. International Brotherhood of

Electrical Workers, Local 176 v. Balmoral Racing Club, Inc., 293 F.3d

402, 406 (7th Cir. 2002).

The IELRA reflects the intent of the General Assembly to protect

the rights given in collective-bargaining agreements between teachers

and educational employers. Section 14(a) of the IELRA prohibits

educational employers from, in pertinent part: “(1) Interfering,

restraining or coercing employees in the exercise of the rights

guaranteed under this Act[;] *** (3) Discriminating in regard to hire

or tenure of employment or any term or condition of employment to

encourage or discourage membership in any employee organization”

(115 ILCS 5/14(a)(1), (a)(3) (West 2004)). In light of the close parallel

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between section 14(a) of the IELRA and section 8(a) of the National

Labor Relations Act (NLRA) (29 U.S.C. §158(a) (2000)), federal

interpretations of the NLRA are persuasive authority in construing the

IELRA. See American Federation of State, County & Municipal

Employees, Council 31 v. Illinois State Labor Relations Board, State

Panel, 216 Ill. 2d 569, 579 (2005); City of Burbank v. Illinois State

Labor Relations Board, 128 Ill. 2d 335, 345 (1989); Wapella

Education Ass’n v. Illinois Educational Labor Relations Board, 177

Ill. App. 3d 153, 161 (1988).

Section 14(a)(1) refers to adverse action taken against an

employee as a result of any protected concerted activity, while section

14(a)(3) refers specifically to discrimination based on union activity.

Where, as here, an alleged violation of sections 14(a)(1) and 14(a)(3)

stems from the same conduct, the section 14(a)(1) violation is said to

be derivative of the section 14(a)(3) violation. In such cases, the test

to be applied is the one used to determine whether a section 14(a)(3)

violation occurred. Bloom Township High School District 206 v.

Illinois Educational Labor Relations Board, 312 Ill. App. 3d 943, 957

(2000) (and cases cited therein).

A section 14(a)(3) violation requires proof of improper

motivation on the part of the employer. Under this test, the

complainant must establish a prima facie case by proving that: (1) the

employee was engaged in activity protected by section 14(a)(3) of the

Act; (2) the employer was aware of that activity; and (3) the employee

was discharged for engaging in that activity. Bloom Township, 312 Ill.

App. 3d at 957; Georgetown-Ridge Farm Community Unit School

District No. 4 v. Illinois Educational Labor Relations Board, 239 Ill.

App. 3d 428, 464 (1992). Because the test of discrimination under

section 14(a)(3) turns on motive and because motive is a question of

fact (City of Burbank, 128 Ill. 2d at 345), this court is limited to

ascertaining whether the Board’s findings are against the manifest

weight of the evidence. “An administrative agency’s factual

determinations are contrary to the manifest weight of the evidence

where the opposite conclusion is clearly evident.” City of Belvidere v.

Illinois State Labor Relations Board, 181 Ill. 2d 191, 204 (1998). The

District contends that Warning failed to establish the first and third

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elements of her prima facie case.7

1. Protected Union Activity

The Board found that Warning engaged in protected union

activity. I agree. An employee engages in activity protected by section

14(a)(3) when the employee seeks union assistance. Georgetown-

Ridge, 239 Ill. App. 3d at 464; Abuzir, 22 PERI ¶143 (IELRB 2006)

(“Abuzir engaged in union activity when he sought the Union’s

assistance in disciplinary matters [and] when union representatives

accompanied him to pre-disciplinary meetings”). The District cannot

contest that Warning had union representation at multiple meetings

with Principal Runyan and other District administrators during the

2004-05 school year.

Rejecting the Board’s finding, this court reasons that Warning’s

union representation, in the person of Wierzbicki, at the 2004-05

meetings did not constitute protected union activity because Warning

did not have a right to union representation at those meetings. I

disagree. Whether Warning was entitled to union representation at the

meetings with the District depended on how the meetings were

characterized and the nature of Warning’s grievance. Therefore, the

characterization of a particular meeting has legal consequences, and

must be thoughtfully considered. However, the parties, the appellate

court dissent, and my colleagues in the majority loosely characterize

the meetings during the 2004-05 school year variously as “remediation

meetings” (see slip op. at 10-13, 23), “postevaluation meetings” (see

slip op. at 15), “evaluation conference” (see slip op. at 10, 22, 24),

“postobservation remediation meetings” (see slip op. at 22), and a

meeting that involved potential “discipline” (see slip op. at 8). These

labels eventually coagulate and muddle this court’s analysis. The fact

that the meetings defy precise characterization reveals that they

7

The District concedes that Warning established the second element of

her prima facie case. The District indisputably knew of Warning’s union

activity. On multiple occasions during the 2004-05 school year, Principal

Runyan met personally with Warning and her union representative,

Wierzbicki. Also, Runyan continually referred to Warning “having the

Union involved,” and directed Warning not to bring union representation

with her to their meetings.

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covered a wide variety of grounds, some grievable, such as evaluative

procedure, and some nongrievable, such as remediation decisions.

Moreover, the meetings covered discipline as well.

During the 2004-05 school year, Warning’s fourth and final

probationary year, her first confrontation with the District is

memorialized in the December 8, 2004, memorandum from Dr.

Clasberry, the District’s human resources director. Union

representative Wierzbicki accompanied Warning at the meeting. The

memorandum expressly referred to “disciplinary action up to

dismissal,” and directed Warning to meet with Dr. Clasberry and

Principal Runyan prior to the end of the school year to discuss the

matter. Further, the memorandum stated that it would remain in her

personnel file for the duration of her employment with the District.

This matter was indisputably treated as employee discipline pursuant

to section 3–10 of the collective-bargaining agreement.

Pursuant to section 3–8B of the collective-bargaining agreement,

Assistant Principal Egan was designated to evaluate Warning during

that school year. However, contrary to that section, Warning was

notified that Principal Runyan would conduct her second classroom

evaluation.

Section 3–8F of the collective-bargaining agreement, as

supplemented by section 7H of the employee handbook, provided that

evaluation conclusions and remediation decisions were nongrievable,

but evaluation procedures, including those pertaining to employee

remediation, were subject to the grievance procedure. At the

postobservation conference, Warning requested union representation

and, assisted by Wierzbicki, questioned Runyan as to the appropriate

evaluative procedure. Warning and Wierzbicki voiced their concern

that, as provided by the collective-bargaining agreement, there had

been “a violation, misinterpretation, or misapplication” of its

provisions. Additionally, Runyan attached to Warning’s evaluation a

“corrective deficiency plan,” which identified as an area of concern the

disciplinary matter of December 2004.

The record clearly shows that the collective-bargaining agreement

granted Warning the right to union representation for at least two

reasons. First, Warning had the right to union assistance pertaining to

the separate and distinct December 2004 disciplinary incident. Indeed,

the District plainly intertwined the disciplinary matter with her

performance evaluations, which raised a procedural discrepancy

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justifying Warning to seek union assistance. This disciplinary matter,

which ostensibly was closed in December 2004, became part and

parcel of the “remediation.” Second, Warning certainly had the right

under the collective-bargaining agreement to reasonably question the

other disparities or inconsistencies in the evaluative procedure

imposed on her. Since evaluative procedure is a matter that is

grievable under the collective-bargaining agreement, it is not

surprising that union representation would be wanted to investigate

whether in fact the evaluative procedures contained in the agreement

were properly followed.

Therefore, it appears that Warning’s “remediation” meetings

included a component that was clearly “investigatory.” In National

Labor Relations Board v. J. Weingarten, Inc., 420 U.S. 251 (1975), the

United States Supreme Court accepted the decision of the NLRB that

section 7 of the NLRA (29 U.S.C. §157 (2000)) creates a statutory

right in an employee to refuse to submit without union representation

to an interview which the employee reasonably fears may result in his

or her discipline. Weingarten, 420 U.S. at 256. The Court further

recognized the Board’s contours and limits on what are now

commonly called Weingarten rights: (1) the right inheres in the

guarantee of section 7 to act in concert for mutual aid and protection;

(2) the right arises only in situations where the employee requests

representation; (3) the employee must reasonably believe the

investigation will result in disciplinary action; (4) exercise of the right

may not interfere with legitimate employer prerogatives. In other

words, the employer is free to continue the investigation without

interviewing the employee, and thereby leave to the employee the

choice between having an interview unaccompanied by the

representative, or having no interview and forgoing any benefits that

might be derived therefrom; (5) the employer has no duty to bargain

with any union representative who may be permitted to attend the

investigatory interview. Id. at 256-60.

The Court held that the action of the employee in seeking to have

the assistance of his or her union representative at a confrontation with

the employer clearly falls within the plain language of section 7 that

employees shall have the right to engage in concerted activities for the

purpose of mutual aid or protection. Id. at 260; see 29 U.S.C. §157

(2000). The Court reasoned that this applies even though the employee

alone may have an immediate stake in the outcome; after all, the

-39-

employee seeks “aid or protection” against a perceived threat to his or

her employment security. The union representative whose participation

the employee seeks is, however, safeguarding not only the particular

employee’s interest, but also the interests of the entire bargaining unit

by exercising vigilance to make certain that the employer does not

initiate or continue a practice of imposing punishment unjustly. The

representative’s presence is an assurance to other employees in the

bargaining unit that they, too, can obtain aid and protection if called

upon to attend a like interview. Id. at 260-61.

In the present case, Warning was entitled to union representation

at the December 2004 investigatory meeting. Further, Principal

Runyan expressly incorporated this investigatory matter as a

component of Warning’s remediation. Therefore, insofar as Warning’s

remediation pertained to this disciplinary matter, she had the right to

union representation.

Further, in Summit Hill Council, AFT, Local 604, 4 PERI ¶1009

(IELRB 1987), the Board found Weingarten rights to inhere in the

IELRA. The Board observed that section 3(a) of the IELRA is virtually

identical to section 7 of the NLRA. Compare 115 ILCS 5/3(a) (West

2004) with 29 U.S.C. §157 (2000). The Board then stated: “We

conclude that Section 3(a) of the IELRA encompasses the right to

refuse to submit to an investigatory interview without union

representation where the employee reasonably fears that the interview

might result in discipline.” The Board explained that a teacher under

remediation “may reasonably fear that at least some, if not all, post-

observation conferences may ultimately lead to discharge.” “Because

of the give and take that may occur at a post-observation conference,”

the Board determined that postobservation conferences are

“investigatory” interviews.8

However, the question presented in Summit Hill was whether a

tenured teacher under remediation is entitled to union representation

at a postobservation conference upon request. The Board in Summit

Hill concluded that Weingarten rights do not attach to the

postobservation conferences of tenured teachers under remediation,

8

Therefore, this court’s characterization of Warning as “taking an

assertive and confrontational stance with regard to her evaluation” (slip op.

at 24) is not only erroneously pejorative, but also contrary to this express

Board recognition.

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based on the provisions of the Education Reform Act of 1985, which

added article 24A to the School Code. Pub. Act 84–126 (eff. Aug. 1,

1985); Pub. Act 84–972 (eff. Sept. 25, 1985) (adding 105 ILCS 5/art.

24A). The Board observed that section 24A sets forth the minimum

role of the union in the evaluation process, subject to supplementation

of that role through collective bargaining. The Board in Summit Hill

further observed that the collective-bargaining agreement in that case

did not provide for union representation at postevaluation conferences.

Consequently, the Board in Summit Hill found that the school district

did not violate the IELRA by refusing the teacher’s request for union

representation during a postobservation conference.

In the present case, while the Board found it unnecessary to apply

Weingarten and Summit Hill in this case,9 I agree with the ALJ that the

Summit Hill limitation of Weingarten rights does not apply to

nontenured teachers. As the ALJ correctly noted, the remediation

process for a nontenured teacher is notably different from the process

that article 24 of the School Code prescribes for tenured teachers. For

example, where a tenured-teacher evaluation results in an

unsatisfactory rating, participants in the remediation plan include not

only the teacher and administrator, but also a “consulting teacher,”

who must be a bargaining unit employee. The union is permitted to

supply a roster of teachers qualified to serve as consulting teachers,

and a school district must select a consulting teacher from that list. The

consulting teacher helps to develop the remediation plan, and then

advises the tenured teacher in remediation on how to improve his or

her teaching skills. See 23 Ill. Adm. Code 25.875. No similar

provisions exist in the School Code and supporting regulations for

nontenured teachers. In the absence of such provisions, the

remediation process for a nontenured teacher is governed by the

collective-bargaining agreement.

In this case, the collective-bargaining agreement did not clearly

and unmistakably waive the right to union representation at a

postobservation conference. To the contrary, section 3–8F of the

agreement, supplemented by section 7H of the employee handbook,

expressly provides that evaluative procedures, including those

9

The Board reasoned: “In this case it is not alleged that the District

violated the [IELRA] by denying Warning union representation, but rather

that it retaliated against her for having union representation.”

-41-

pertaining to employee remediation, are subject to the grievance

procedure. The meetings between Warning and the District involved

disciplinary matters as well as evaluative and remediation procedure,

all of which entitled Warning to union representation under the

collective-bargaining agreement. Additionally, the “remediation”

meetings here clearly had a component that was “disciplinary,” which

unquestionably entitled Warning to union representation. If this were

not enough, the pervasive intermingling of references to “remediation”

and “discipline” throughout the 2004-05 school year was reasonably

confusing to such a degree as to allow Warning, assisted by

Wierzbicki, to question in good faith the evaluative process, as granted

by the collective-bargaining agreement.

Accordingly, because Warning was nontenured, her right to union

representation at the 2004-05 meetings depended on whether the

collective-bargaining agreement granted her that right. The record

clearly shows that it did. I conclude that Warning had the right to

union representation. Because Warning did seek union assistance

during the 2004-05 meetings with the District, I would hold that

Warning engaged in protected union activity, satisfying the first

element of her prima facie case.

2. Antiunion Motivation

This court ends its analysis by concluding that Warning failed to

establish the first element of her prima facie case. Because I conclude

that Warning did establish this element, I now analyze the remaining

elements of her complaint.

The third element of a prima facie case for a violation of section

14(a)(3) of the IELRA requires the employee to prove that he or she

was discharged for engaging in the protected union activity. Bloom

Township, 312 Ill. App. 3d at 957. The complainant must establish that

“ ‘the employee’s protected conduct was a substantial or motivating

factor in the adverse action.’ ” City of Burbank, 128 Ill. 2d at 345

(quoting National Labor Relations Board v. Transportation

Management Corp., 462 U.S. 393, 401 (1983)). Surveying federal

labor law decisions, this court explained:

“Antiunion motivation may reasonably be inferred from a

variety of factors, such as an employer’s expressed hostility

towards unionization, together with knowledge of the

employee’s union activities [citation], proximity in time

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between the employees’ union activities and their discharge

[citation], disparate treatment of employees or a pattern of

conduct which targets union supporters for adverse

employment action [citations], inconsistencies between the

proffered reason for discharge and other actions of the

employer [citation], and shifting explanations for the

discharge [citations].” City of Burbank, 128 Ill. 2d at 346.

Since motive is a question of fact, the Board may infer discriminatory

motive from either direct or circumstantial evidence. Id. at 345.

In the present case, Warning’s protected union activity was

seeking union assistance in her meetings with the District during the

2004-05 school year. The Board found that Warning has established

the element of antiunion motivation for two reasons: expressed

hostility and shifting explanations for the nonrenewal of Warning’s

contract. Neither of these findings is clearly erroneous.

First, the Board found that “Runyan and Dr. Pointer repeatedly

expressed hostility toward Warning’s union activity in the form of

representation by Wierzbicki.” Indeed, Principal Runyan’s animus

against this protected union activity cannot seriously be disputed. The

record is replete with Runyan’s oral and written statements to Warning

that he did not want union representative Wierzbicki to assist Warning

at the meetings.

Second, the Board found evidence of shifting explanations for the

District’s actions in Runyan’s April 22, 2005, evaluation, his final

written evaluation in which he recommended nonrenewal of

Warning’s contract. I quote the evaluation in relevant part:

“You received an unsatisfactory rating in two main areas:

Instructional Presentation and Professional

Communication/Responsibilities. *** There has been some

demonstrated improvement in the area of instruction. You

have taken steps to align your instruction to state standards in

design and implementation.

[While] you were working on the plan to correct

deficiencies more concerns were raised due to your lack of

ability to communicate. You made the choice to be late for

several scheduled meetings and failed to participate in a

process that enabled you and me to communicate freely. Your

actions have created barriers in our ability to effectively

communicate. The process was tension driven and failed to

-43-

honestly develop to a relationship to move forward in this

area.

*** You failed to consistently provide prepared evidence

when requested and seemed inadequately prepared for our

meetings. We were unable to get into open dialog during our

meeting time. During the conversations you failed to see your

role in the breakdown of communications. The corrective

process became cumbersome and chaotic due to the choices

you made.

By the time this process was over there appeared to be little

growth in the area of improved communication. Therefore it

is my assessment that you have not met the terms of the plan

to correct deficiencies. It will be my recommendation to [the

District] that you be terminated.” (Emphases added.)

The Board observed that, according to the evaluation, Warning

failed to remediate concerning “professional communication,” yet the

same document states that Warning had “demonstrated improvement

in the area of instruction,” yet the District contended before the Board

that Warning was discharged because of “inadequate teaching

abilities.” The Board, as the finder of fact, could infer a discriminatory

motive from these shifting explanations. Additionally, the Board found

that the “actions” and “choices” to which Runyan refers were

Warning’s repeated assertions of her right to union representation, as

granted by the collective-bargaining agreement. The Board found that

these remarks were additional evidence of the District’s expressed

hostility toward Warning’s protected union activity. The manifest

weight of the evidence supports the Board’s finding of antiunion

motivation and, consequently, its finding that Warning has proved a

prima facie case of discriminatory discharge in violation of 14(a)(3)

of the IELRA.

3. District’s Affirmative Defense

Once a complainant establishes a prima facie case:

“the employer can avoid a finding that it violated the statute

by demonstrating that the discharged employee would have

been fired for a legitimate business reason notwithstanding

the employer’s antiunion animus. [Citations.] Merely

proffering a legitimate business reason for the adverse

employment action does not end the inquiry, for it must be

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determined whether the reasons advanced are bona fide or

pretextual. If the suggested reasons are a mere litigation

figment or were not relied upon, then the determination of

pretext concludes the inquiry. [Citation.] However, where the

employer advances legitimate reasons for the discharge and

is found to have relied upon them in part, then the case is

characterized as one of ‘dual motive’ and the employer must

demonstrate by a preponderance of the evidence that the

employee would have been terminated notwithstanding his

union involvement.” City of Burbank, 128 Ill. 2d at 346-47.

Accord Bloom Township, 312 Ill. App. 3d at 960; Georgetown-Ridge,

239 Ill. App. 3d at 464. This burden shifting has been characterized as

an affirmative defense for the employer. See Transportation

Management Corp., 462 U.S. at 400.

The Board concluded that this was a “pretext case.” The Board

noted the District’s asserted reasons for nonrenewing Warning’s

contract–her alleged failure to remediate concerning professional

communications and her allegedly inadequate teaching abilities. The

Board found that Runyan’s April 22, 2005, evaluation of Warning

evinced the pretextual nature of the District’s asserted reasons. The

evaluation indicated that the District was not discharging Warning

based on her allegedly inadequate teaching abilities, because Runyan

stated in the evaluation that Warning had shown “demonstrated

improvement” in the area of instruction. The Board observed that the

evaluation also contained “veiled references” to Warning’s insistence

that she be represented by Wierzbicki. Moreover, according to the

Board, “Runyan inaccurately stated in the memorandum that Warning

was late for several scheduled meetings and failed to provide ‘prepared

evidence when requested.’ The inaccuracy of these statements

demonstrates their pretextual nature.”

The Board also observed that, during the 2004-05 school year,

another employee was under a corrective action plan with Runyan and

was represented by a union representative other than Wierzbicki.10

This employee was not dismissed. The Board found that the District

objected particularly to “Wierzbicki’s assertiveness in representing

10

The fact that other employees had union representation during

meetings with District personnel underscores my belief that the collective-

bargaining agreement entitled Warning to such assistance.

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Warning.”

Whether an employer’s articulated reason for its employment

decision is pretextual is a question of fact for the Board to decide, and

its decision will not be disturbed on review unless it is against the

manifest weight of the evidence. See City of Burbank, 128 Ill. 2d at

350; Bloom Township, 312 Ill. App. 3d at 957; Georgetown-Ridge,

239 Ill. App. 3d at 465. Further, the ALJ heard the testimony of several

witnesses, including Warning, Wierzbicki, and Dr. Pointer. It was the

Board’s function, as the finder of fact, to determine the weight to be

given the evidence and to assess the credibility of the witnesses.

Marconi v. Chicago Heights Police Pension Board, 225 Ill. 2d 497,

540 (2006); Jackson v. Board of Review of the Department of Labor,

105 Ill. 2d 501, 513 (1985); Board of Regents of Regency Universities

v. Illinois Educational Labor Relations Board, 208 Ill. App. 3d 220,

230 (1991). Here, the evidence supports the Board’s finding that the

District’s stated reasons for nonrenewing Warning’s contract were

pretextual and that the nonrenewal was actually the product of

unlawful discrimination. I would hold that the Board’s finding of

pretext was not against the manifest weight of the evidence.

In sum, the collective-bargaining agreement granted Warning the

right to union representation at her meetings with the District during

the 2004-05 school year. Further, the record clearly shows that

Warning was discharged for engaging in this protected union activity.

In nonrenewing Warning’s contract, Dr. Pointer expressly stated that

Warning failed to correct the two deficiencies that Principal Runyan

proffered in his March 1, 2005, corrective deficiency plan. The first

deficiency that Runyan alleged was “professional communication,”

which pertained to the December 2004 disciplinary matter, which

clearly allows for union representation. The second alleged deficiency

was Warning’s “instructional presentation,” which, as the Board

observed, Runyan concluded that Warning had “demonstrated

improvement.” Warning had the right, with the assistance of

Wierzbicki, to question in good faith whether the format of Warning’s

evaluation constituted a “violation, misinterpretation, or

misapplication” of the collective-bargaining agreement. The manifest

weight of the evidence supports the Board’s findings that Warning

established a prima facie case of a violation of section 14(a)(3) of the

IELRA, and that the District’s proffered reasons for nonrenewing

Warning’s contract were pretextual. Consequently, I would uphold the

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Board’s determination that the District committed an unfair labor

practice as not clearly erroneous.

B. Remedy

Because this court holds that the District’s conduct did not

constitute an unfair labor practice, my colleagues in the majority do

not address whether granting Warning tenure was an appropriate

remedy. Although the District committed an unfair labor practice when

it dismissed Warning, I conclude that tenure is not the appropriate

remedy. Rather, I would restore Warning to a final probationary year.

After finding that the District violated section 14(a)(3) and,

derivatively, section 14(a)(1) of the IELRA, the ALJ recommended

that Warning be reinstated to her teaching position and awarded back

pay. Further, because Warning was dismissed at the end of her fourth

and final probationary year, the ALJ recommended that Warning be

granted tenure. The Board adopted this recommended remedy.

However, dissenting in part, two members of the Board concluded that

an award of tenure is beyond the authority of the Board. The appellate

court confirmed the decision of the Board, including the remedy of

tenure. 392 Ill. App. 3d at 639-40.

Pursuant to section 15 of the IELRA, if the Board finds that a

party has committed an unfair labor practice, the Board is “empowered

to issue an order requiring the party charged to stop the unfair practice,

and may take additional affirmative action.” (Emphasis added.) 115

ILCS 5/15 (West 2004). As earlier observed, the IELRA closely

parallels the NLRA, including section 15 of the IELRA and section 10

of the NLRA. Compare 115 ILCS 5/15 (West 2004), with 29 U.S.C.

§160(c) (2000). In accord with federal decisions construing the NLRA,

our appellate court has held that remedial orders of the Board are

reviewed for abuse of discretion. Paxton-Buckley-Loda Education

Ass’n v. Illinois Educational Labor Relations Board, 304 Ill. App. 3d

343, 353 (1999). The court in Paxton-Buckley-Loda explained that the

Board has “ ‘substantial flexibility and wide discretion to ensure that

victims of unfair labor practices be returned to the position that would

have obtained had the illegal conduct not occurred.’ [Citation.]” Id.

Therefore, the purpose of the Board in fashioning a remedy in an

unlawful labor practice case is to order a “make-whole” remedy that

achieves this end. Id. at 353-54.

However, the Board has no authority with respect to the

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interpretation of the School Code. In the context of the NLRA, the

United States Supreme Court has observed:

“[T]he Board [NLRB] has not been commissioned to

effectuate the policies of the [NLRA] so single-mindedly that

it may wholly ignore other and equally important

Congressional objectives. Frequently the entire scope of

Congressional purpose calls for careful accommodation of

one statutory scheme to another, and it is not too much to

demand of an administrative body that it undertake this

accommodation without excessive emphasis upon its

immediate task.” Southern S.S. Co. v. National Labor

Relations Board, 316 U.S. 31, 47 (1942).

Thus, where the policies of the NLRA conflict with another federal

statute, the NLRB cannot ignore the other statute. Rather, it must fully

enforce the requirements of its own statute, the NLRA, but must do so,

as far as possible, in a manner that minimizes the impact of its actions

on the policies of the other statute. Can-Am Plumbing, Inc. v. National

Labor Relations Board, 321 F.3d 145, 153-54 (D.C. Cir. 2003); see

McLean Trucking Co. v. United States, 321 U.S. 67, 79-80 (1944)

(same, Interstate Commerce Commission).

Based on this reasoning, I conclude that the collective-bargaining

agreement in the present case neither restricted nor expanded the

powers conferred or the rights granted by section 24–11 of the School

Code. 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). This court has explained the

significance of teacher tenure as follows:

“The dispositive factor in our consideration is a

determination of the intent of the legislature in enacting

sections 24–11 and 24–12 of the School Code. One objective

of teacher tenure is ‘to assure continuous service on the part

of teachers of ability and experience.’ [Citation.] The tenure

system is, we believe, intended to provide continuity and

stability for students; provide some degree of job security,

thus affording teachers the ability to pursue a career free from

arbitrary hiring and firing; attract teachers of high quality; and

retain experienced teachers. Since, however, the statutes

create liabilities where none would otherwise exist, they must

be strictly construed in order not to unduly interfere with the

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responsibility of local boards to efficiently operate the

educational systems.” Johnson v. Board of Education of

Decatur School District No. 61, 85 Ill. 2d 338, 344 (1981).

Accordingly, the Board’s authority to order make-whole relief does not

extend to an award of tenure, which is a decision section 24–11 of the

School Code vests in the District. Now that the Board has set aside the

District’s unlawful nonrenewal of Warning’s contract, the District

must be given the opportunity to exercise its statutory discretion

regarding tenure.

The two Board members who dissented on the issue of awarding

Warning tenure concluded as follows:

“The proper remedy in this case would be to reinstate

Warning for another final probationary year and order that she

be evaluated by someone other than Principal Benoit or Dr.

Betty Pointer. *** This remedy, rather than reinstatement

with tenure, would place Warning in ‘the position that would

have obtained had the illegal conduct not occurred.’ [Paxton-

Buckley-Loda, 304 Ill. App. 3d at 353.] If Warning had not

been non-renewed on the basis of her union activity, there

would have been an assessment by [the District] as to whether

tenure was appropriate on other grounds. Putting Warning in

the position in which she would have been if a decision had

not been made to non-renew her on the basis of her union

activity includes allowing such an assessment.”

I agree and would so hold. Courts must uphold and enforce the rights

granted by collective-bargaining agreements. In fulfilling this duty,

however, courts must be vigilant not to intrude upon the province of

educational employers as provided by the School Code.

III. CONCLUSION

For the foregoing reasons, I would affirm in part the judgment of

the appellate court, which confirmed the Board’s decision. I would

uphold the Board’s determination that the District committed an unfair

labor practice when it dismissed Warning. However, I disagree with

the Board that tenure is the proper remedy. Rather, I would restore

Warning to a final probationary year under the conditions described in

the Board’s partial dissent.

JUSTICE THEIS joins in this dissent.

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