The opinion
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.]” PaxtonBuckley-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 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 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.