Justice BURKE delivered the judgment of the court, with 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, 331 Ill.Dec. 604, 911 N.E.2d 425. We granted the District's petition for leave to appeal and now set aside the Board's decision and reverse the appellate court judgment.
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."
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
In response, Warning wrote on the evaluation form:
Attached to the 2002-03 evaluation was a memorandum, also dated January 31, 2003, and written by Principal Call. It stated, in part:
Warning submitted a written response to the memorandum, stating:
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 Warning's 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 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
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 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:
The last two items on the list provide:
The next item in Warning's personnel file is her evaluation for the 2003-04 school year, Warning's third probationary year.
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. Genevra 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."
It was noted in Dr. Clasberry's memo that the current incident was the second time during that school year
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:
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 "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:
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 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
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 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
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, 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 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
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:
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 meetings 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
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 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, 331 Ill.Dec. 604, 911 N.E.2d 425, 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.
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, 229 Ill.Dec. 522, 692 N.E.2d 295 (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 evidence. City of Belvidere, 181 Ill.2d at 204-05, 229 Ill.Dec. 522, 692 N.E.2d 295. Further, as we stated in Board of Trustees of the University of Illinois v. Illinois Labor Relations Board, 224 Ill.2d 88, 97-98, 308 Ill.Dec. 741, 862 N.E.2d 944 (2007):
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, section 14(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:
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, 245 Ill.Dec. 530, 728 N.E.2d 612 (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, 245 Ill.Dec. 530, 728 N.E.2d 612. 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, 245 Ill.Dec. 530, 728 N.E.2d 612. A prima facie case 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, 251 Ill.Dec. 803, 741 N.E.2d 690 (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, 124 Ill.Dec. 49, 528 N.E.2d 737 (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, 131 Ill.Dec. 590, 538 N.E.2d 1146 (1989); Bloom Township, 312 Ill.App.3d at 957, 245 Ill.Dec. 530, 728 N.E.2d 612. 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, 131 Ill.Dec. 590, 538 N.E.2d 1146; Board of Education, City of Peoria School District No. 150, 318 Ill.App.3d at 150, 251 Ill.Dec. 803, 741 N.E.2d 690.
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
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 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:
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, 95 S.Ct. 959, 43 L.Ed.2d 171 (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 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).
The IELRB then explained that educational labor laws in Illinois do not provide for union representation in remediation. One reason is 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:
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 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, 95 S.Ct. 959, 43 L.Ed.2d 171 (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:
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, 331 Ill.Dec. 604, 911 N.E.2d 425 (Garcia, J., dissenting). Justice Garcia also believed that the Board had improperly side-stepped this issue, stating:
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 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.
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 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.
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.
Appellate court judgment reversed; Illinois Educational Labor Relations Board decision set aside; cause remanded.
Chief Justice KILBRIDE dissented, with opinion.
Justice FREEMAN dissented, with opinion, joined by Justice THEIS.
Chief Justice KILBRIDE dissented upon denial of rehearing, with opinion.
Justice FREEMAN dissented upon denial of rehearing, with 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.]" Paxton-Buckley-Loda Education Ass'n v. Illinois Educational Labor Relations Board, 304 Ill.App.3d 343, 353, 237 Ill.Dec. 908, 710 N.E.2d 538 (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, 237 Ill.Dec. 908, 710 N.E.2d 538. The Board's remedial orders are reviewed for abuse of discretion. Paxton-Buckley-Loda Education Ass'n, 304 Ill.App.3d at 353, 237 Ill.Dec. 908, 710 N.E.2d 538.
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 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, 53 Ill.Dec. 234, 423 N.E.2d 903 (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.
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, 331 Ill.Dec. 604, 911 N.E.2d 425), 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.
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).
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 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
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 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
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 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.
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:
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 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:
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:
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. 242 Ill.2d at 104-07, 351 Ill.Dec. at 248-50, 950 N.E.2d at 1076-78. 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 242 Ill.2d at 104-09, 351 Ill.Dec. at 248-52, 950 N.E.2d at 1076-80. Additional pertinent background will be discussed in the context of my analysis of the issues.
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.
The primary issue in this case is simple: Was Warning engaged in a protected union activity when she insisted on having
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 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, 298 Ill.Dec. 156, 839 N.E.2d 479 (2005); City of Burbank v. Illinois State Labor Relations Board, 128 Ill.2d 335, 345, 131 Ill.Dec. 590, 538 N.E.2d 1146 (1989); Wapella Education Ass'n v. Illinois Educational Labor Relations Board, 177 Ill.App.3d 153, 161, 126 Ill.Dec. 532, 531 N.E.2d 1371 (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, 245 Ill.Dec. 530, 728 N.E.2d 612 (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
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, 179 Ill.Dec. 835, 606 N.E.2d 667; 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 242 Ill.2d at 104-09, 120, 351 Ill.Dec. at 248-51, 257-58, 950 N.E.2d at 1076-79, 1085-86), "postevaluation meetings" (see 242 Ill.2d at 111, 351 Ill.Dec. at 252, 950 N.E.2d at 1080), "evaluation conference" (see 242 Ill.2d at 104, 119, 122, 351 Ill.Dec. at 248, 257, 258, 950 N.E.2d at 1076, 1085, 1086), "postobservation remediation meetings" (see 242 Ill.2d at 119, 351 Ill.Dec. at 257, 950 N.E.2d at 1085), and a meeting that involved potential "discipline" (see 242 Ill.2d at 102, 351 Ill.Dec. at 247, 950 N.E.2d at 1075). These labels eventually coagulate and muddle this court's analysis. The fact that the meetings defy precise characterization reveals that they 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.
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 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, 95 S.Ct. 959, 43 L.Ed.2d 171 (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, 95 S.Ct. 959. 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;
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, 95 S.Ct. 959; 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 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, 95 S.Ct. 959.
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.
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
In the present case, while the Board found it unnecessary to apply Weingarten and Summit Hill in this case,
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 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.
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, 245 Ill.Dec. 530, 728 N.E.2d 612. 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, 131 Ill.Dec. 590, 538 N.E.2d 1146 (quoting National Labor Relations Board v. Transportation Management Corp., 462 U.S. 393, 401, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983)). Surveying federal labor law decisions, this court explained:
Since motive is a question of fact, the Board may infer discriminatory motive from either direct or circumstantial evidence. Id. at 345, 131 Ill.Dec. 590, 538 N.E.2d 1146.
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:
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.
Once a complainant establishes a prima facie case:
Accord Bloom Township, 312 Ill.App.3d at 960, 245 Ill.Dec. 530, 728 N.E.2d 612; Georgetown-Ridge, 239 Ill.App.3d at 464, 179 Ill.Dec. 835, 606 N.E.2d 667. This burden shifting has been characterized as an affirmative defense for the employer. See Transportation Management Corp., 462 U.S. at 400, 103 S.Ct. 2469.
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.
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, 131 Ill.Dec. 590, 538 N.E.2d 1146; Bloom Township, 312 Ill.App.3d at 957, 245 Ill.Dec. 530, 728 N.E.2d 612; Georgetown-Ridge, 239 Ill. App.3d at 465, 179 Ill.Dec. 835, 606 N.E.2d 667. 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, 312 Ill.Dec. 208, 870 N.E.2d 273 (2006); Jackson v. Board of Review of the Department of Labor, 105 Ill.2d 501, 513, 86 Ill.Dec. 500, 475 N.E.2d 879 (1985); Board of Regents of Regency Universities v. Illinois Educational Labor Relations Board, 208 Ill.App.3d 220, 230, 153 Ill.Dec. 113, 566 N.E.2d 963 (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,
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, 331 Ill.Dec. 604, 911 N.E.2d 425.
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, 237 Ill.Dec. 908, 710 N.E.2d 538 (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, 237 Ill.Dec. 908, 710 N.E.2d 538.
However, the Board has no authority with respect to the interpretation of the School Code. In the context of the NLRA, the United States Supreme Court has observed:
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, 64 S.Ct. 370, 88 L.Ed. 544 (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, 340 N.E.2d 7 (1975). This court has explained the significance of teacher tenure as follows:
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:
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.
Chief Justice KILBRIDE, dissenting:
I would allow rehearing in this case for all the reasons stated in Justice Freeman's dissent upon denial of rehearing. In addition, I believe this court should allow rehearing to consider the appropriate remedy for the unfair labor practice in this case.
The petitioners ask this court to address the appropriate remedy for the unfair labor practice, contending that the Board's "make-whole" remedy of reinstatement with acquisition of tenure should be affirmed. I agree. As noted in my dissent (242 Ill.2d at 124, 351 Ill.Dec. at 259-61, 950 N.E.2d at 1087-89 (Kilbride, C.J., dissenting)), the Board has wide discretion in fashioning "make-whole" remedies in unfair labor practice cases. Paxton-Buckley-Loda Education Ass'n, 304 Ill.App.3d at 353-54, 237 Ill.Dec. 908, 710 N.E.2d 538. The Board did not abuse its discretion in reinstating Warning's teaching contract with the consequence that she receive tenure. I believe the appellate court properly confirmed the Board's decision, including its remedy of reinstatement of Warning's employment. I would allow rehearing to address the appropriate remedy for the unfair labor practice as well as the points identified in Justice Freeman's dissent upon denial of rehearing.
Justice FREEMAN, dissenting:
Warning and the Union petitioned for rehearing in this case. Petitioners request this court to reconsider its decision reversing the judgment of the appellate court and setting aside the decision of the Illinois Educational Labor Relations Board. I would allow rehearing. This decision was erroneous on multiple levels. This court overlooked dispositive legal principles, ignored undisputed facts, and misapplied the law to the facts. Further, this decision may have consequences that my colleagues in the majority surely could not have intended. Therefore, I dissent from the denial of the petition for rehearing.
Petitioners claim that this court overlooked that, "[a]s a non-tenured teacher, Warning's right to have a corrective deficiency plan arises solely out of the collective bargaining agreement." I agree. My colleagues in the majority overlooked the legal centrality of the collective-bargaining agreement in this case. Lacking this focus, with corresponding analysis, this court reached a result that is contrary to settled labor law.
One of the fundamental policies of the NLRA and the IELRA is freedom of contract. Indeed, it is a "fundamental principle that a collective bargaining agreement constitutes a contract." Kozura v. Tulpehocken Area School District, 568 Pa. 64,
Correspondingly, the Illinois General Assembly has declared that the public policy of this state is "to promote orderly and constructive relationships between all educational employees and their employers" and that this "overall policy may best be accomplished by * * * requiring educational employers to negotiate and bargain with employee organizations representing educational employees and to enter into written agreements evidencing the result of such bargaining." 115 ILCS 5/1 (West 2004). Section 10 of the Illinois Educational Labor Relations Act (IELRA) mandated that the District and the Union "confer in good faith with respect to wages, hours and other terms and conditions of employment, and to execute a written contract incorporating any agreement reached by such obligation." (Emphasis added.) 115 ILCS 5/10 (West 2004).
When the District and the Union negotiated in good faith about subjects such as discharge and remediation procedures, and memorialized the bargain that they struck in the collective-bargaining agreement, they created a set of rules governing their future relations. See Gratiot Community Hospital v. National Labor Relations Board, 51 F.3d 1255, 1261 (6th Cir.1995); 242 Ill.2d at 135-36, 351 Ill.Dec. at 265, 950 N.E.2d at 1093 (Freeman, J., dissenting, joined by Theis, J.). In creating the collective-bargaining agreement, the District and the Union deliberately bargained for certain adjustments and concessions. The agreement embodies mutual assent and, during the duration of the contract, either party should be able to rely on the provisions previously bargained for during negotiation of the agreement. See Port Huron Education Ass'n v. Port Huron Area School District, 452 Mich. 309, 550 N.W.2d 228, 239-40 (Mich.1996). "Accordingly, any rights and remedies possessed by the union and the employer, as parties to the agreement, and by the employee, as a third-party beneficiary thereof, ultimately derive primarily from the language of the agreement itself." Kozura, 791 A.2d at 1174.
Once the collective-bargaining agreement is made, its own provisions govern the procedures for resolving disputes which arise under its terms. P.R. Mallory & Co. v. National Labor Relations Board, 411 F.2d 948, 952 (7th Cir.1969). Provided that the terms of a collective-bargaining agreement do not violate or conflict with a statute or other controlling law, the rights and remedies delineated by the parties in a specific agreement must be respected. Kozura, 791 A.2d at 1174; In re White Mountain Regional School District, 154 N.H. 136, 908 A.2d 790, 794 (N.H.2006) (same; holding that school district violated
The collective-bargaining agreement in this case, "as is true in any collective bargaining agreement, represents a series of trade-offs between an employer and employees reaching a mutually satisfying agreement. Courts should be loathe for a multitude of reasons to abrogate clauses in such contracts absent a pressing legal reason." Espinal v. Royal Caribbean Cruises, Ltd., 253 F.3d 629, 632 (11th Cir.2001). Because of the fundamental policy of freedom of contract, the parties are generally free to agree to whatever specific rules they like, and in most circumstances it is beyond the competence of regulatory agencies or the courts to interfere with the parties' choice. See Department of the Navy, Marine Corps Logistics Base, Albany, Georgia v. Federal Labor Relations Authority, 962 F.2d 48, 57 (D.C.Cir.1992). A court must enforce a collective-bargaining agreement as written so as to give effect to the intent of the contracting parties. A court may not "abrogate a lawful agreement merely because one of the bargaining parties is unhappy with a term of the contract and would prefer to negotiate a better arrangement." National Labor Relations Board v. United States Postal Service, 8 F.3d 832, 836 (D.C.Cir.1993).
In the present case, this court's only reference to the dispositive significance of the collective-bargaining agreement is found near the end of the majority opinion, where the court erroneously concludes: "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." 242 Ill.2d at 121, 351 Ill.Dec. at 258, 950 N.E.2d at 1086. Without express analysis, the court appears to concede that the collective-bargaining agreement could have entitled Warning to union representation at the 2004-05 meetings. However, this court relies on only one portion of one section of the collective-bargaining agreement. The court reasons:
This court did not consider the relevant provisions of the collective-bargaining agreement.
In my dissent, I referenced several sections of the collective-bargaining agreement that indisputably granted Warning the right to union representation at the meetings during the 2004-05 school year. See 242 Ill.2d at 129-30, 351 Ill.Dec. at 261-62, 950 N.E.2d at 1089-90 (Freeman, J., dissenting, joined by Theis, J.). Significantly, the majority cited only part of
When the relevant sections of the collective-bargaining agreement are viewed in their entirety, it is clear to see where the court goes off track. Rehearing should be granted in order to allow this court to apply fundamental principles of labor law to the fairly-bargained-for agreement in this case.
Petitioners ask this court to reconsider its conclusion that Warning failed to prove that she was engaged in protected union activity because she failed to prove that she was entitled to union representation at the 2004-05 meetings. Petitioners contend that this court failed to consider numerous areas of protected activity in which Warning was engaged. Petitioners suggest that had this court considered these areas, the court would have concluded that the District discharged Warning for engaging in the protected union activity. These points are well-taken.
This court did not consider the actions that petitioners took in reliance on the collective-bargaining agreement, and its conclusion that the record contains no evidence of Warning's collective-bargaining rights is alarming. Indeed, the record before us contains undisputed facts that entitled Warning to union representation.
It is undisputed that Dr. Clasberry's December 8, 2004, letter involved a disciplinary matter, which entitled Warning to union representation, and that the letter directed Warning to meet with Dr. Clasberry and Runyan to discuss her progress regarding that disciplinary matter. See 242 Ill.2d at 131-33, 351 Ill.Dec. at 263-64, 950 N.E.2d at 1091-93 (Freeman, J., dissenting, joined by Theis, J.). Also, at the March 1, 2005, meeting with Principal Runyan, Warning and Wierzbicki questioned the procedure that Runyan employed to evaluate Warning. At the meeting, Warning and Wierzbicki contended that Runyan used the wrong format. Warning brought the employee handbook to the meeting. She and Wierzbicki pointed to the prescribed evaluation format that Runyan should have used. These facts are found in paragraph 15 of the parties' "Joint Statement of Uncontested Facts" (emphasis added) and the uncontested testimony of Warning and Wierzbicki.
Applying the relevant provisions of the collective-bargaining agreement to the undisputed facts of record, Warning was
Petitioners claim that this court overlooked that, at the March 1, 2005, meeting with Principal Runyan, Warning's and Wierzbicki's request that Runyan use the correct format to evaluate Warning "arose solely out of the collective bargaining agreement and was an exercise of union activity." I agree. Rather than openly applying the clear provisions of the collective-bargaining agreement to the undisputed facts, my colleagues in the majority cast aspersions on Warning.
In its recitation of the facts, the court disparaged Warning's and Wierzbicki's actions at the March 1, 2005, meeting as follows: "Rather than discuss the evaluation, Warning and Beth took this opportunity to argue with Runyan about the evaluation form, itself." (Emphasis added.) 242 Ill.2d at 122, 351 Ill.Dec. at 249, 950 N.E.2d at 1077. In concluding their analysis, my colleagues again decried Warning as follows:
Knowing the central importance of the relevant and fairly-bargained-for provisions of the collective-bargaining agreement, and knowing what Warning sought pursuant to that pact, this court's denouncement of Warning in its misapplication of the law to the facts seems inappropriate to me. The Board has recognized that "give and take * * * may occur at a post-observation conference." See 242 Ill.2d at 142, 351 Ill. Dec. at 269, 950 N.E.2d at 1097 (Freeman, J., dissenting, joined by Theis, J.). This court surely could not have intended to suppress this vital, Board-recognized dialogue between teachers under remediation and their employers.
Further, the court's apparent message was that Warning should not have stood up for herself, or should not have "talked back" to Runyan, but rather should have "minded her place." However, such a message is itself circumstantial evidence of employment discrimination. See, e.g., Coburn v. PN II, Inc., 372 Fed.Appx. 796, 801 (9th Cir.2010) (unpublished opinion) (employer's comment to employee "you don't talk back"); Jones v. Forrest City Grocery Inc., No. 4:06cv00944, 2008 WL 2539851, 2008 U.S. Dist. LEXIS 48193 (E.D. Ark. June 23, 2008) (other employees "talked back" to supervisor, while plaintiffemployee fired for "insubordination"); Fulmore v. Home Depot, U.S.A., Inc., No. l:03-cv-0797-DFH-VSS, 2006 WL 839460, 2006 U.S. Dist. LEXIS 22909 (S.D.Ind. Mar. 30, 2006) (same). This court surely could not have intended to condone potentially discriminatory conduct.
Litigants expect a court to fairly construe and apply a collective-bargaining agreement as any other contract. In the present case, however, this court did not fulfill these obligations. To the contrary, a public school teacher's livelihood and reputation were harmed because she exercised her legal, fairly-bargained-for right to union representation.
For the foregoing reasons, I dissent from the court's denial of the petition for rehearing.
