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