Board of Education of the City of Chicago v. Illinois Educational Labor Relations Board

Illinois Official Reports Digitally signed by

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Supreme Court Date: 2016.01.22 09:56:19

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Board of Education of the City of Chicago v. Illinois Educational Labor Relations Board,

2015 IL 118043

Caption in Supreme THE BOARD OF EDUCATION OF THE CITY OF CHICAGO,

Court: Appellee, v. THE ILLINOIS EDUCATIONAL LABOR

RELATIONS BOARD et al., Appellants.

Docket No. 118043, 118072 cons.

Filed December 17, 2015

Decision Under Appeal from the Appellate Court for the First District; heard in that

Review court on a petition for review of an order of the Illinois Educational

Labor Relations Board.

Judgment Affirmed and remanded.

Counsel on Kurtis R. Hale, of Poltrock & Poltrock, Robert Bloch, of Dowd,

Appeal Bloch, Bennett and Cervone, and Graham Hill and Thaddeus

Goodchild, all of Chicago, for appellant Chicago Teachers Union.

Lisa Madigan, Attorney General, of Springfield (Carolyn E. Shapiro,

Solicitor General, and Sharon A. Purcell, Assistant Attorney General,

of Chicago, of counsel), for appellants Illinois Educational Labor

Relations Board et al.

James L. Bebley and Lee Ann Lowder, of Chicago, for appellee.

Justices JUSTICE FREEMAN delivered the judgment of the court, with

opinion.

Chief Justice Garman and Justices Thomas, Karmeier, Burke, and

Theis concurred in the judgment and opinion.

Justice Kilbride dissented, with opinion.

OPINION

¶1 The Chicago Teachers Union, Local 1, IFT-AFT, AFL-CIO (Union), filed an unfair labor

practice charge with the Illinois Educational Labor Relations Board (IELRB) against the

Board of Education of the City of Chicago (Board). The Union alleged that the Board violated

section 14(a)(1) of the Illinois Educational Labor Relations Act (Act) (115 ILCS 5/14(a)(1)

(West 2010)) by refusing to arbitrate grievances. The IELRB found that the Board had violated

the Act. On direct administrative review, a divided panel of the appellate court reversed the

IELRB’s decision. 2014 IL App (1st) 130285.

¶2 This court allowed the Union’s and the IELRB’s separate petitions for leave to appeal (Ill.

S. Ct. R. 315 (eff. Jan. 1, 2015)) and consolidated the causes for review. We now affirm the

judgment of the appellate court and remand to the IELRB for further proceedings.

¶3 I. BACKGROUND

¶4 The appellate court adequately recited the stipulated facts. We need not repeat those details

here. As defined in the Act, the Board is an educational employer (115 ILCS 5/2(a) (West

2010)), and the Union is an employee organization (115 ILCS 5/2(c) (West 2010)) that is an

exclusive representative (115 ILCS 5/2(d) (West 2010)) of a bargaining unit of the Board’s

employees that includes teachers. The Board and the Union were parties to a collective

bargaining agreement (CBA) in effect from 2007 to 2012. The CBA established a grievance

procedure that culminated in final and binding arbitration.

¶5 In June 2010, the Board notified the Union of a new policy. The Board was going to

designate as ineligible for rehire nonrenewed probationary appointed teachers (PATs) who

have been nonrenewed twice or who have been given an unsatisfactory performance rating. At

the end of the 2009-10 school year, the Board began implementing this policy by placing in the

personnel files of such PATs a “Do Not Hire” (DNH) designation.

¶6 The Union timely presented to the Board four grievances and demanded arbitration. Three

of the grievances were on behalf of individual PATs and one was on behalf of all PATs. The

Board had notified all of the individual PATs that they were being nonrenewed with the

Chicago Public Schools for the following school year but did not inform them that it had

placed a DNH designation in their personnel files. The grievances alleged that the Board’s

DNH policy violated various sections of the CBA.

¶7 In the individual grievances, the Union requested the Board, respectively, to restore two

grievants to their teaching positions at particular schools and to allow the third grievant to seek

a Chicago Public Schools position for which she qualifies. In the collective grievance, the

Union requested that the Board: cease the practice of placing DNH designations in union

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members’ files if the terminations were not for cause; remove union members from the DNH

list; notify all union members in writing who have received a DNH designation; give the Union

a list of all Union members on the DNH list; allow all Union members to seek employment

within the Chicago Public Schools; and “[d]iscuss any and all changes that affect the working

conditions and employment status” of union members with the Union.

¶8 The Board notified the Union that it refused to arbitrate the grievances, which the Board

viewed as an attempt by the Union to require the Board to hire persons whom the Board did not

believe it should hire. The Board claimed that the subject matter of the grievances was

excluded from arbitration because Board hiring decisions were exclusive management rights.

¶9 The Union filed an unfair labor practice charge with the IELRB against the Board. The

Union alleged that the Board violated section 14(a)(1) of the Act by refusing to arbitrate the

grievances. The executive director of the IELRB investigated the Union’s charge and issued a

complaint. See 115 ILCS 5/15 (West 2010). In lieu of a hearing before an administrative law

judge (ALJ), the parties filed a stipulated record. An ALJ ordered that the case be removed to

the IELRB based on her certification that there were no determinative issues of fact requiring

an ALJ’s recommended decision. In a written opinion and order, the IELRB found that,

pursuant to the Act and the CBA, the Board had a duty, upon the Union’s request, to arbitrate

the DNH grievances and, by refusing to do so, the Board violated section 14(a)(1) of the Act.

The IELRB ordered the Board to arbitrate the grievances and to grant other relief requested by

the Union.

¶ 10 On direct administrative review, a divided panel of the appellate court reversed the

IELRB’s decision. 2014 IL App (1st) 130285. Reviewing the IELRB’s decision de novo, the

appellate court concluded that the Board was contractually and statutorily not obligated to

arbitrate the grievances and, therefore, held that the IELRB erred in finding that the Board

violated section 14(a)(1) of the Act. Id. ¶ 44. The dissenting justice would have confirmed the

IELRB’s decision, concluding that the grievances were arbitrable. Id. ¶ 69 (Gordon, P.J.,

dissenting). The Union and the IELRB each appeals to this court.

¶ 11 II. ANALYSIS

¶ 12 Before this court, the Union and the IELRB contend that the Board is obligated under the

CBA to arbitrate the grievances. The Board contends that it has a managerial right over hiring

decisions that is contractually and statutorily excluded from arbitration.

¶ 13 A. Standard of Review

¶ 14 At the outset, the parties disagree on the appropriate standard of review. On administrative

review, our role is to review the decision of the administrative agency, here the IELRB, and not

the determination of the appellate court. See Wade v. City of North Chicago Police Pension

Board, 226 Ill. 2d 485, 504 (2007). The Act provides that a final order of the Board is subject to

judicial review pursuant to the Administrative Review Law (735 ILCS 5/3-101 et seq. (West

2010)), taken directly to the appellate court. 115 ILCS 5/16(a) (West 2010). Under the

Administrative Review Law, the scope of judicial review extends to all questions of law and

fact presented by the record before the court. 735 ILCS 5/3-110 (West 2010). The applicable

standard of review, which determines the degree of deference given to the agency’s decision,

depends on whether the issue presented is a question of law, fact, or a mixed question of law

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and fact. AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380,

390 (2001).

¶ 15 An agency’s conclusion on a question of law is reviewed de novo. A reviewing court is not

bound by an agency’s interpretation of a statute. Cinkus v. Village of Stickney Municipal

Officers Electoral Board, 228 Ill. 2d 200, 210-11 (2008). However, the agency’s interpretation

remains relevant where there is a reasonable debate about the meaning of the statute.

Harrisonville Telephone Co. v. Illinois Commerce Comm’n, 212 Ill. 2d 237, 247 (2004). In

contrast, “The findings and conclusions of the administrative agency on questions of fact shall

be held to be prima facie true and correct.” 735 ILCS 5/3-110 (West 2010). Accordingly, when

a court reviews an agency’s factual findings, the court will not reweigh the evidence or

substitute its judgment for that of the agency. Rather, the court simply determines whether the

findings of fact are against the manifest weight of the evidence. American Federation of State,

County & Municipal Employees, Council 31 v. Illinois State Labor Relations Board, State

Panel, 216 Ill. 2d 569, 577 (2005).

¶ 16 A mixed question of law and fact asks the legal effect of a given set of facts. In resolving a

mixed question of law and fact, a reviewing court must determine whether established facts

satisfy applicable legal rules. An agency’s conclusion on a mixed question of law and fact is

reviewed for clear error. A decision is “clearly erroneous” when the reviewing court is left with

the definite and firm conviction that a mistake has been committed. AFM Messenger, 198 Ill.

2d at 391-95.

¶ 17 Before this court, the Union and the Board agree that the appropriate standard of review is

de novo because there are no determinative issues of fact and the IELRB only considered legal

issues. For this reason, the appellate court reviewed the IELRB’s decision de novo. 2014 IL

App (1st) 130285, ¶ 19. However, the IELRB contends that the clearly erroneous standard of

review is appropriate because this case presents mixed questions of law and fact.

¶ 18 We agree with the IELRB that the clearly erroneous standard of review is appropriate. The

written order of the ALJ found that there were no questions of fact, and the IELRB decided the

Union’s complaint solely on the legal issues presented. However, mixed questions of fact and

law are “ ‘questions in which the historical facts are admitted or established, the rule of law is

undisputed, and the issue is whether the facts satisfy the statutory standard, or to put it another

way, whether the rule of law as applied to the established facts is or is not violated.’ ”

American Federation of State, County & Municipal Employees, 216 Ill. 2d at 577 (quoting

Pullman-Standard v. Swint, 456 U.S. 273, 289 n.19 (1982)). Review for clear error is

significantly deferential to an agency’s experience in construing and applying the statute that it

administers. AFM Messenger, 198 Ill. 2d at 393-95. This court has recognized that

“[d]etermination of whether specific issues are mandatorily bargainable or not is best left to the

IELRB, which has the knowledge and experience to balance the equities in a given case.

However, our legislature has placed guidelines in the Act as to what should, and should not be

bargained.” Central City Education Ass’n v. Illinois Educational Labor Relations Board, 149

Ill. 2d 496, 522 (1992). The main issue on review from the IELRB involves the application of

the correct statutory interpretation of the Act to the facts. Accordingly, we apply the clearly

erroneous standard of review. See City of Belvidere v. Illinois State Labor Relations Board,

181 Ill. 2d 191, 205 (1998); Chicago Teachers Union v. Illinois Educational Labor Relations

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Board, 334 Ill. App. 3d 936, 942 (2002).

¶ 19 B. Arbitrability of Grievances

¶ 20 Under section 14(a)(1) of the Act, “Educational employers, their agents or representatives

are prohibited from *** [i]nterfering, restraining or coercing employees in the exercise of the

rights guaranteed under this Act.” 115 ILCS 5/14(a)(1) (West 2010). A school district’s refusal

to submit an employee grievance to binding arbitration under a collective bargaining

agreement is a violation of section 14(a)(1) of the Act. Cobden Unit School District No. 17 v.

Illinois Educational Labor Relations Board, 2012 IL App (1st) 101716, ¶ 19; Granite City

Community Unit School District No. 9 v. Illinois Educational Labor Relations Board, 279 Ill.

App. 3d 439, 442 (1996); Board of Trustees, Prairie State College v. Illinois Educational

Labor Relations Board, 173 Ill. App. 3d 395, 409 (1988). However, refusal to arbitrate is an

appropriate method to challenge the issue of arbitrability. See Board of Education of

Community School District No. 1, Coles County v. Compton, 123 Ill. 2d 216, 225-26 (1988);

Niles Township High School District 219 v. Illinois Educational Labor Relations Board, 379

Ill. App. 3d 22, 24 (2007). A school district may refuse to arbitrate a grievance where: (1) there

is no contractual agreement to arbitrate the substance of the dispute or (2) the dispute is not

arbitrable under section 10(b) of the Act (115 ILCS 5/10(b) (West 2010)) because the subject

matter of the dispute conflicts with Illinois law. Cobden Unit School District, 2012 IL App

(1st) 101716, ¶ 19; Niles Township, 379 Ill. App. 3d at 24.

¶ 21 The Board’s position throughout these proceedings is that the decision to designate PATs

as ineligible for rehire is a matter of inherent managerial policy for the selection of new

employees. The Board contends that it did not contractually limit this authority and, further,

that this authority is statutorily excluded from arbitration.

¶ 22 We first consider whether there was a contractual agreement to arbitrate the instant

grievances concerning the DNH designations. In determining whether a school district is

required to arbitrate a grievance, the mere existence of the dispute between the employer and

the employee does not make the disputed matter subject to arbitration under a collective

bargaining agreement. Rather, the IELRB must examine whether the grievance falls within the

terms of the collective bargaining agreement. Cobden Unit School District, 2012 IL App (1st)

101716, ¶ 19.

¶ 23 In the case at bar, article 3 of the CBA provides the following definition: “A grievance is a

complaint involving a work situation; a complaint that there has been a deviation from,

misinterpretation of or misapplication of a practice or policy; or a complaint that there has been

a violation, misinterpretation or misapplication of any provisions of this Agreement.” As part

of the grievance procedure, article 3-5 provides for binding arbitration. Further, article 34-4,

concerning personnel files, provides as follows:

“No derogatory statement about a teacher or other bargaining unit member

originating outside of the Chicago public school system shall be placed in the teacher’s

or other bargaining unit member’s personnel file, provided, further, that any official

report or statement originating within the Chicago public school system may be placed

in the teacher’s or other bargaining unit member’s personnel file only if the [person] is

sent a dated copy thereof at the same time. The [person] may respond and such

response shall be attached to the filed copy.”

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Further, article 48-2 of the CBA provides in pertinent part:

“The BOARD shall not be required to bargain over matters of inherent managerial

policy within the meaning of the [Act] or Illinois School Code, which shall include

such areas of discretion or policy as the functions of the BOARD, standards of service,

its overall budget, the organizational structure and selection of new employees and

direction of employees ***. The BOARD, however, shall be required to bargain

collectively with the UNION with regard to policy matters directly affecting wages,

hours and terms and conditions of employment as well as the impact thereon upon

request by the UNION.”

¶ 24 The IELRB found that “there is no express language excluding this matter from

arbitration.” The IELRB determined that the DNH grievances were not contractually

precluded from arbitration “[i]n light of the broad language in the grievance clause and the lack

of exclusions from arbitration.” The agency viewed the management rights language in article

48-2 as pertaining to the Board’s “bargaining power, not arbitration.”

¶ 25 The IELRB misconstrued the CBA. Pursuant to the Act, binding arbitration is a mandatory

component in all collective bargaining agreements. 115 ILCS 5/10(c) (West 2010); see

Compton, 123 Ill. 2d at 222-23. This court has repeatedly observed that employers have the

right to refuse to bargain over “matters of inherent managerial policy.” However, employers

must bargain over “wages, hours and other terms and conditions of employment.” 115 ILCS

5/4, 10(a) (West 2010); Central City, 149 Ill. 2d at 522; Compton, 123 Ill. 2d at 220.

¶ 26 In Central City, this court established a three-part test to determine whether a matter is

subject to mandatory bargaining. First is the matter one of “wages, hours and terms and

conditions of employment?” “If the answer to this question is no, the inquiry ends and the

employer is under no duty to bargain.” Central City, 149 Ill. 2d at 523. A term and condition of

employment is something that an employer provides which intimately and directly affects the

work and welfare of the employees. In addition to wages and hours, typical terms and

conditions include health insurance and pension contributions. Vienna School District No. 55

v. Illinois Educational Labor Relations Board, 162 Ill. App. 3d 503, 507 (1987).

¶ 27 In the at case bar, we agree with the appellate court that the DNH grievances do not relate

to terms and conditions of employment, but rather to the Board’s ability to initiate

employment, which is a matter of managerial policy. 2014 IL App (1st) 130285, ¶ 28.

Although the CBA broadly defines a grievance, that broad definition does not, and as will be

shown, cannot, pertain to the matters excluded from the bargaining process under the CBA,

including the Board’s ability to make hiring decisions.

¶ 28 Even if some provision in the CBA could be read to require that the DNH grievances be

arbitrated, section 10(b) of the Act (115 ILCS 5/10(b) (West 2010)) would prohibit its

enforcement because implementing the provision would violate or conflict with Illinois law.

That section provides:

“(b) The parties to the collective bargaining process shall not effect or implement a

provision in a collective bargaining agreement if the implementation of that provision

would be in violation of, or inconsistent with, or in conflict with any statute or statutes

enacted by the General Assembly of Illinois.” 115 ILCS 5/10(b) (West 2010).

In turn, section 4 of the Act provides in pertinent part:

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“Employers shall not be required to bargain over matters of inherent managerial policy,

which shall include such areas of discretion or policy as the functions of the employer,

standards of service, its overall budget, the organizational structure and selection of

new employees and direction of employees.” 115 ILCS 5/4 (West 2010).

The instant DNH grievances are inarbitrable because their arbitration would conflict with

section 4 of the Act.

¶ 29 The arbitration of these grievances would also conflict with several sections of the School

Code. “[A] school board has only those powers expressly conferred upon it by the General

Assembly and those that are necessary to carry into effect the powers granted by the

legislature.” Spinelli v. Immanuel Lutheran Evangelical Congregation, Inc., 118 Ill. 2d 389,

403 (1987) (citing Wesclin Education Ass’n v. Board of Education of Wesclin Community Unit

School District, 30 Ill. App. 3d 67, 75 (1975)). Section 34-84 mandates that the Board shall

appoint teachers “for merit only, and after satisfactory service for a probationary period of 3

years.” 105 ILCS 5/34-84 (West 2010). Also, section 10-22.4 of the School Code, which

authorizes a school district to dismiss a teacher “whenever, in its opinion, he is not qualified to

teach, or whenever, in its opinion, the interests of the schools require it, subject, however, to

the provisions of Sections 24-10 to 24-15, inclusive.” 105 ILCS 5/10-22.4 (West 2010). This

provision includes the power to terminate the employment of probationary teachers by the

nonrenewal of their teachers’ contracts. This discretionary power may not be delegated to an

arbitrator or limited by a collective bargaining agreement. See Illinois Education Ass’n Local

Community High School District 218 v. Board of Education of School District 218, Cook

County, 62 Ill. 2d 127, 130-31 (1975); Wesclin, 30 Ill. App. 3d at 75-76. Thus, probationary

teachers have no specific right to be retained by a school board. Rather, a school board may,

subject to the provisions of the School Code, retain or dismiss probationary teachers entirely in

its discretion. “In this situation, the probationary teacher is not discharged or dismissed so

much as she is not asked to enter into continued contractual service.” Lockport Area Special

Education Cooperative v. Lockport Area Special Education Cooperative Ass’n, 33 Ill. App. 3d

789, 794 (1975). The school board may not delegate this power by agreeing to dismiss teachers

only for just cause or agreeing to submit to binding arbitration whether or not there is just

cause. “The Board may only agree to follow certain procedures before making a determination,

which only the Board can make.” Id.; accord Cobden Unit School District, 2012 IL App (1st)

101716, ¶ 21.1

¶ 30 The instant DNH grievances attempt to force the Board to hire probationary teachers. As

the appellate court observed, the relief that the Union sought from the Board included

reinstating grievants to their particular jobs, or allowing grievants to seek employment within

the Chicago Public School system. 2014 IL App (1st) 130285, ¶ 28. The grievances therefore

conflict with the Board’s statutory authority to refuse to rehire probationary teachers, and the

Board was not required to arbitrate them pursuant to section 10(b) of the Act. See id. ¶¶ 34-36.

¶ 31 PATs are employed for a single school-year term, and the Board alone is vested with the

selection of such employees as a matter of inherent managerial policy. Further, the Board’s

policy of placing a DNH designation in the files of PATs following two nonrenewals or an

1

The Union contends that the Board’s failure to refer to the School Code before the IELRB

precludes reference to it on administrative review. We disagree. Article 48-2 of the CBA and section 4

of the Act provide for the same management rights as these sections of the School Code.

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unsatisfactory performance rating was within the Board’s authority because this policy directly

relates to the Board’s exclusive right to determine its hiring guidelines. To the extent that PATs

seek reinstatement, the disputed grievances are inarbitrable under both the CBA and section

10(b) of the Act. We agree with the appellate court that the Board was not obligated to arbitrate

the instant grievances and that the IELRB clearly erred in finding that the Board violated

section 14(a)(1) of the Act. See id. ¶¶ 34-37.

¶ 32 III. CONCLUSION

¶ 33 For the foregoing reasons, the judgment of the appellate court is affirmed and the cause

remanded to the IELRB for further proceedings.

¶ 34 Affirmed and remanded.

¶ 35 JUSTICE KILBRIDE, dissenting:

¶ 36 The issue presented in this appeal is whether the Board of Education of the City of Chicago

(Board) committed an unfair labor practice by refusing to arbitrate grievances alleging the

Board placed “Do Not Hire” (DNH) designations in certain probationary teachers’ personnel

files without giving those teachers notice. There is no question that the ultimate decision on

whether to rehire the probationary teachers cannot be made in the arbitration process but is

within the Board’s sole discretion. The grievants seek, among other things, enforcement of

procedural protections in the parties’ collective bargaining agreement (CBA) prohibiting

placement of statements in a teacher’s personnel file without giving the teacher notice and an

opportunity to respond. The Illinois Educational Labor Relations Board (IELRB) found that

the Board committed an unfair labor practice by refusing to arbitrate the grievances. In my

view, the IELRB’s decision is not clear error and should be confirmed. Accordingly, I

respectfully dissent.

¶ 37 On administrative review, this court reviews the administrative agency’s decision, not the

decision of the appellate court. Wade v. City of North Chicago Police Pension Board, 226 Ill.

2d 485, 504 (2007). As the majority holds, the issues in this case present mixed questions of

law and fact subject to review for clear error. A decision is clearly erroneous only when “the

reviewing court, on the entire record, is ‘left with the definite and firm conviction that a

mistake has been committed.’ ” AFM Messenger Service, Inc. v. Department of Employment

Security, 198 Ill. 2d 380, 395 (2001) (quoting United States v. United States Gypsum Co., 333

U.S. 364, 395 (1948)). Review for clear error is significantly deferential to an administrative

agency’s experience in construing and applying the statute it administers. AFM Messenger,

198 Ill. 2d at 393-95.

¶ 38 In this case, the IELRB determined that the Board violated section 14(a)(1) of the Illinois

Educational Labor Relations Act (Act) by refusing to arbitrate the DNH grievances. Section

14(a)(1) of the Act provides that “[e]ducational employers, their agents or representatives are

prohibited from: (1) [i]nterfering, restraining or coercing employees in the exercise of the

rights guaranteed under this Act.” 115 ILCS 5/14(a)(1) (West 2010). An employer violates

section 14(a)(1) and commits an unfair labor practice by refusing to arbitrate an arbitrable

employee grievance. Board of Trustees, Prairie State College v. Illinois Educational Labor

Relations Board, 173 Ill. App. 3d 395, 408-09 (1988). In determining whether a grievance is

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arbitrable, the IELRB must examine whether it falls within the terms of the collective

bargaining agreement. Staunton Community Unit School District No. 6 v. Illinois Educational

Labor Relations Board, 200 Ill. App. 3d 370, 376 (1990). A school district may refuse to

arbitrate a grievance when: (1) the district did not contractually agree to arbitrate the dispute or

(2) the dispute is not arbitrable under section 10(b) of the Act (115 ILCS 5/10(b) (West 2010))

because its subject matter conflicts with Illinois law. Chicago Teachers Union v. Illinois

Educational Labor Relations Board, 344 Ill. App. 3d 624, 636 (2003).

¶ 39 This court must, therefore, first determine whether the IELRB clearly erred in finding that

the parties contractually agreed to arbitrate the grievances involving placement of the DNH

designations in probationary teachers’ personnel files. If the IELRB did not clearly err on that

point, we must consider whether it clearly erred in finding the grievances arbitrable under

section 10(b) of the Act.

¶ 40 Contractual Agreement to Arbitrate

¶ 41 Article 3 of the CBA defines a grievance as “a complaint involving a work situation; a

complaint that there has been a deviation from, misinterpretation of or misapplication of a

practice or policy; or a complaint that there has been a violation, misinterpretation or

misapplication of any provision of this Agreement.” Article 3-5 provides for binding

arbitration as part of the grievance procedure.

¶ 42 In this case, the IELRB observed that the language in the grievance clause is broad,

allowing for arbitration of a grievance as long as it involves a “work situation.” The IELRB

determined that the grievances are not contractually precluded from arbitration given the broad

language in the grievance clause and the absence of any exclusions. In my view, the IELRB did

not clearly err in finding the grievances arbitrable under the broad definition provided in the

CBA. The basis for placing the DNH designations in probationary teachers’ personnel files

was an evaluation of their conduct during work situations.

¶ 43 Additionally, the grievances in this case allege a violation of specific procedural

protections in the CBA governing the placement of reports or statements in a teacher’s

personnel file. As the majority acknowledges, article 34-4 of the CBA provides that:

“No derogatory statement about a teacher or other bargaining unit member

originating outside of the Chicago public school system shall be placed in the teacher’s

or other bargaining unit member’s personnel file, provided, further, that any official

report or statement originating within the Chicago public school system may be placed

in the teacher’s or other bargaining unit member’s personnel file only if the teacher or

other bargaining unit member is sent a dated copy thereof at the same time. The teacher

or other bargaining unit member may respond and such response shall be attached to

the filed copy.”

¶ 44 The grievances state probationary teachers did not receive notice that DNH designations

were placed in their files. The grievances further allege the Board’s policy violates specific

provisions in the CBA, including article 34-4. Those allegations are clearly “complaint[s] that

there has been a violation *** of any provision of this Agreement” within the express language

of the grievance clause. Accordingly, the IELRB did not clearly err in determining that those

grievances fall within the broad language in the grievance clause.

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¶ 45 The majority, however, concludes that the IELRB misconstrued the CBA. The majority

holds that employers may refuse to bargain over “matters of inherent managerial policy,” and

the DNH grievances relate to a matter of managerial policy involving the Board’s ability to

initiate employment or make hiring decisions, not to the terms and conditions of employment.

Thus, the majority maintains that the matters alleged in the grievances are excluded from the

bargaining process and cannot be covered by the grievance clause in the CBA.

¶ 46 I agree that employment decisions are a matter of inherent managerial policy and the Board

has the sole right to determine whether probationary teachers are rehired. The grievances in

this case, however, allege a clear violation of article 34-4 of the CBA, prohibiting placement of

official reports or statements in a teacher’s personnel file without giving the teacher prompt

notice and an opportunity to respond. The grievants seek, among other things, notice to

teachers of any DNH designation placed in their personnel files and removal of designations

placed in files in violation of article 34-4. Those grievances do not interfere with the Board’s

right to make hiring decisions. Rather, they complain of a violation of a term and condition of

employment involving placement of items in teachers’ personnel files.

¶ 47 The plain intent of article 34-4 is to provide some basic protection for teachers

encountering the specific circumstances presented in this case. Absent enforcement of that

provision, a teacher would have no recourse if a DNH designation were placed in his or her

personnel file wrongfully or by mistake. Article 34-4 is directed at preventing the secret

placement of derogatory statements or reports in personnel files with no notice to employees.

Those are the precise complaints alleged by the probationary teachers in this case.

¶ 48 The issue of whether the Board violated express procedural requirements in the CBA is

arbitrable under the grievance clause. The IELRB did not clearly err in concluding the DNH

grievances are arbitrable under the CBA.

¶ 49 Arbitration Under Section 10(b) of the Act

¶ 50 The majority also concludes that the IELRB committed clear error in finding the DNH

grievances arbitrable under section 10(b) of the Act. The majority holds that arbitration of the

grievances would conflict with section 4 of the Act (115 ILCS 5/4 (West 2010)), stating

employers are not required to bargain over “matters of inherent managerial policy” and would

also violate several provisions of the School Code providing for those same management

rights. The majority’s determination is based on its claim that the DNH grievances interfere

with the Board’s authority to decide whether to rehire probationary teachers. The majority

states the “DNH grievances attempt to force the Board to hire probationary teachers.”

¶ 51 Section 4 of the Act states, in pertinent part:

“Employers shall not be required to bargain over matters of inherent managerial policy,

which shall include such areas of discretion or policy as the functions of the employer,

standards of service, its overall budget, the organizational structure and selection of

new employees and direction of employees. Employers, however, shall be required to

bargain collectively with regard to policy matters directly affecting wages, hours and

terms and conditions of employment as well as the impact thereon upon request by

employee representatives.” 115 ILCS 5/4 (West 2010).

¶ 52 The IELRB determined that section 4 does not apply to this case because it addresses

bargaining, not arbitration. Section 4 does not indicate that the allegations of these grievances

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are prohibited subjects of bargaining or preclude arbitration of the grievances. In my view, the

IELRB did not clearly err in finding section 4 inapplicable to this case.

¶ 53 Even if section 4 and the School Code provisions cited by the majority were applicable,

however, the grievances in this case do not conflict with the Board’s authority to make hiring

decisions. As noted above, the grievances allege violations of specific procedural protections

set forth in the CBA. The grievances allege the Board violated article 34-4 of the CBA by

placing DNH designations in probationary teachers’ personnel files without giving notice to

the teachers. Article 34-4 prohibits placement of official reports or statements in a teacher’s

personnel file without giving the teacher notice and an opportunity to respond. The grievants

seek, in part, notice to teachers of any DNH designation placed in their personnel files and

removal of designations placed in files in violation of article 34-4.

¶ 54 Those allegations do not conflict with the Board’s authority to make the ultimate decision

on whether to rehire the probationary teachers. Rather, they seek to enforce basic procedural

protections the parties bargained for in the CBA. The failure to give probationary teachers the

notice and opportunity to respond required by article 34-4 is a violation of a term and condition

of employment. Without the enforcement of article 34-4, the probationary teachers would have

no recourse or opportunity to be heard if a DNH designation were placed in their file

wrongfully or by mistake.

¶ 55 As the majority recognizes, the Board may agree to follow certain procedures before

making hiring decisions. Supra ¶ 30 (citing Lockport Area Special Education Cooperative v.

Lockport Area Special Education Cooperative Ass’n, 33 Ill. App. 3d 789, 794 (1975), and

Cobden Unit School District No. 17 v. Illinois Educational Labor Relations Board, 2012 IL

App (1st) 101716, ¶ 21). In Lockport Area Special Education Cooperative, 33 Ill. App. 3d at

792, the appellate court observed that school boards had been “permitted to agree to procedural

prerequisites to the exercise of [their] discretion” on whether to rehire probationary teachers,

including “notice, hearing, conferences with the teacher and an opportunity to remedy alleged

deficiencies.” (Emphasis omitted.) Article 34-4 is a procedure the Board agreed to follow

before making its discretionary hiring decision. It does not interfere with the Board’s ultimate

authority to decide whether to rehire probationary teachers. Accordingly, the IELRB did not

commit clear error in finding the grievances arbitrable under section 10(b).

¶ 56 In sum, I would hold that the IELRB did not clearly err in finding the DNH grievances in

this case arbitrable under the CBA and section 10(b) of the Act. The IELRB’s decision that the

Board violated section 14(a)(1) by refusing to arbitrate the grievances should be confirmed.

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