Bd. of Educ. of Chi. v. Ill. Educ. Labor Relations Bd.
| Decision Date | 27 June 2014 |
| Docket Number | No. 1–13–0285.,1–13–0285. |
| Parties | The BOARD OF EDUCATION OF THE CITY OF CHICAGO, Petitioner, v. The ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD, Lynne O. Sered, IELRB Chairman; Ronald F. Ettinder, Gilbert O'Brien, Michael H. Prueter, Michael K. Smith, Board Members; and Chicago Teachers Union, Respondents. |
| Court | United States Appellate Court of Illinois |
James L. Bebley, Lee Ann Lowder, and Sabrina Haake, all of Chicago Board of Education Law Department, of Chicago, for petitioner.
Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro, Solicitor General, and Sharon A. Purcell, Assistant Attorney General, of counsel), for respondent Illinois Educational Labor Relations Board.
Kurtis Hale, of Poltrock & Giampietro, and Thaddeus Goodchild and Graham Hill, both of Chicago Teachers Union, both of Chicago, for respondent Chicago Teachers Union.
¶ 1 Petitioner, the Board of Education of the City of Chicago (the Board), argues that respondent Illinois Educational Labor Relations Board (IELRB) erred in finding that petitioner was required to arbitrate grievances filed by respondent Chicago Teachers Union (Union), after “Do Not Hire” (DNH) designations were placed in the personnel files of certain nonrenewed probationary appointed teachers because the grievances concerned “its inherent managerial right to choose whom to hire.”
¶ 2 The facts in the instant case are undisputed; the parties filed a stipulated record in lieu of a hearing before an administrative law judge.
¶ 3 The Union and the Board are parties to a collective bargaining agreement (CBA) with a term from 2007 to 2012. The Board alleges that on May 25, 2010, it verbally informed then-Union president Marilyn Stewart that the Board's human capital department was going to implement a new policy of designating probationary appointed teachers who have been nonrenewed twice or given an unsatisfactory performance rating as ineligible for rehire by the Board with a DNH designation placed in their personnel file. On June 3, 2010, the Board sent the Union a letter conveying this information. At the end of the 2009–10 school year, the Board began implementing its policy.
¶ 4 The Union timely filed grievances and demanded arbitration of the Board's decision in at least four grievances—three on behalf of individual probationary teachers and one on behalf of all probationary appointed teachers. All of the individual probationary appointed teachers received notice that they were being nonrenewed for the following school year with the Chicago Public Schools, but were not informed that a DNH designation had been placed in their personnel file with the Board, preventing them from being hired within the district.
The first was filed on behalf of Venita Abrams under articles 3 and 24 of the CBA and past practice of the current CBA. The grievance stated that Abrams received notification on May 7, 2010, that she was being nonrenewed for her position at Ward School. She later learned that a DNH had been placed on her personnel file and “she received no notification of the ‘DNH’ nor was she given a reason why she has a ‘DNH’ placed on her file.” The Union sought findings that the Board violated the CBA and past practice when it began placing DNH designations in members' files after two nonrenewals and that the Board violated the CBA and past practice when it used this practice to terminate current members who were unaware that practice was a condition of employment. The grievance noted that the Board did not cite article 34–4 regarding the placement and notification of derogatory statements in the member's personnel file and compliance with that article “did not happen.” The Union requested that to resolve the grievance, the Board remove the DNH on Abrams' file, allow Abrams to look for employment or a position she qualifies for within the Chicago Public Schools, cease the practice of placing DNH on probationary teachers' files, allow all probationary teachers affected such as Abrams to look for qualified employment within the Chicago Public Schools, and discuss any and all changes that affect working conditions and employment status with bargaining members of the Union.
¶ 6 The second grievance was filed on behalf of Carmela Rago, challenging the DNH policy as “a misapplication of and a deviation from past practice of the Board–Union Agreement.” The grievance stated that on May 7, 2010, Rago received notification that she was not being reappointed as a teacher at the Schmid School for the next school year. The letter did not state that a DNH had been placed in her file. Rago asserted that the DNH “implies that she committed some hideous act of misconduct.” She stated that the DNH policy was adopted over a month after she had received her termination letter, and therefore, the Board erred and she should be allowed to continue her employment with the Chicago Public Schools. The Union requested that Rago be immediately restored to a teaching position at Schmid School, including whatever relief is necessary to make Rago whole, and cease and desist from creating policies that violate the CBA.
¶ 7 The third individual grievance was filed on behalf of Gregory Bess and contended that the Board violated articles 3, 23, 36, 38, 39, and 42 of the CBA. The grievance stated that Bess “was not reassigned and a[DNH] was placed in his personnel file.” The Union requested that Bess be restored to his teaching position at Hirsch High School and he be made whole by being paid any lost salary and monies spent to keep his benefits.
¶ 8 The final grievance was filed by the Union on behalf of all affected probationary teachers based on articles 3, 23–2.1, 38–4 of the CBA, the Illinois School Code (105 ILCS 5/34–84 (West 2010) ), and a deviation from past practice and policy. “The grievance is in regard to placing a[DNH] label in bargaining unit members personnel files and records which indicates that they should not be rehired into the system.” The Union contended that “in some instances, when principals have attempted to reinstate a member at their school, they were told by the Chicago Public Schools that they can not hire the member because the member is on a[DNH] list.” As in Abrams' grievance, the Union noted that the Board did not cite article 34–4 regarding the placement of derogatory statements in the member's personnel file and compliance with that article “did not happen.”
¶ 9 Also similar to Abrams' grievance, the Union sought findings that the Board violated the CBA, the Illinois School Code, and past practice when it placed DNH designations on member's files when they clearly were offered positions by the principal and that the Chicago Public Schools violated the CBA, the Illinois School Code, and past practice when it used this process to terminate members who were currently in the system and unaware that this practice was a condition of employment. The Union requested that the Board cease the practice of placing DNH designations on members if the termination was not for cause, remove members from the DNH list, notify all members in writing that they have received a DNH designation, give the Union a list of all members on the DNH list, allow all affected bargaining members to seek employment within the Chicago Public Schools, and discuss any and all changes that affect the working conditions and employment status of bargaining members with the Union.
¶ 10 In March 2011, the Board notified the Union in writing that it refused to arbitrate the grievances, stating that “it [was] convinced that the subject matter [was] excluded from arbitration.” In response, the Union filed an unfair labor practice charge against the Board, alleging that the Board had violated section 14(a)(1) of the Illinois Educational Labor Relations Act (the Act), which prohibited the Board from “[i]nterfering, restraining or coercing employees in the exercise of the rights guaranteed under” the Act. 115 ILCS 5/14(a)(1) (West 2010).
¶ 11 In December 2011, following an investigation, the Executive Director of the Illinois Educational Labor Relations Board issued a complaint. In its answer, the Board raised as a defense that “the relief requested makes it clear that the Union is attempting to require the Board to hire non-employees whom the Board does not believe it should hire,” which was a violation of section 4 of the Act and article 48 of the CBA, both of which “make it clear that the Board's hiring decisions are exclusive management rights over which the Board does not have to bargain or arbitrate.”
¶ 12 In March 2012, the parties filed a stipulated record in lieu of a hearing before an administrative law judge. In April 2012, the administrative law judge certified that there were no determinative issues of fact requiring an administrative law judge's recommended decision and ordered the case removed to the IELRB. In December 2012, the IELRB issued a written opinion and order in which it found that the Board had violated section 14(a)(1) of the Act.
¶ 13 Under the CBA, the grievance procedure is outlined in article 3 and defines “grievance” as “a complaint involving a work situation; a complaint that there has been a deviation from, misinterpretation of or misapplication of a practice or policy; or a complaint that there has been a violation, misinterpretation or misapplication of any provisions of this Agreement.” Article 3–5 of the CBA provides for binding arbitration as part of the grievance procedure.
¶ 14 Article 34–4 concerns personnel files and provides:
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