Speed District 802 v. Warning

JUSTICE GARCIA,

dissenting:

I am persuaded by Speed District 802’s arguments that the decision of the Illinois Educational Labor Relations Board (IELRB) contravenes the holdings in three cases: (1) Ehlers v. Jackson County Sheriff’s Merit Comm’n, 183 Ill. 2d 83, 93, 697 N.E.2d 717 (1998), where the supreme court held that a collective bargaining agreement that provides union representation only in certain circumstances waives union representation in situations outside those circumstances; (2) Board of Education of Schaumburg Community Consolidated School District No. 54 v. Illinois Educational Labor Relations Board, 247 Ill. App. 3d 439, 457, 616 N.E.2d 1281 (1993), where Justice Cousins found the claimed activity serving as one of the bases of the unlawful labor practices under section 14(a)(1) of the Illinois Educational Labor Relations Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 1714(a)(1) (now see 115 ILCS 5/14(a)(l) (West 2006))) was “personal in nature”; and (3) Midwest Central Education Ass’n v. Illinois Educational Labor Relations Board, 277 Ill. App. 3d 440, 446, 660 N.E.2d 151 (1995), where Justice Hoffman concluded that the School Code (105 ILCS 5/1 — 1 et seq. (West 1992)) grants to a school board only the discretion to grant tenure to a probationary teacher. Each case, for differing reasons, dictates that the IELRB erred in its decision before us.

In Ehlers, in reversing the appellate court, our supreme court found that the collective bargaining agreement waived any right of the union member, a sergeant with the Jackson County sheriff’s department, to have union representation at a meeting with the sheriff to discuss “rumors of misconduct [that] had come to the sheriff’s attention, *** [where] the meeting’s purpose was to discuss the facts to determine whether a formal investigation of Ehlers was necessary.” Ehlers, 183 Ill. 2d at 96-97. The supreme court examined the collective bargaining agreement between the local union and the sheriff s department and found that the union had waived union representation at informal hearings in favor of union representation at formal proceedings where only formal proceedings “ ‘could lead to disciplinary action, or dismissal.’ ” Ehlers, 183 Ill. 2d at 94 (quoting Ehlers’s collective bargaining agreement). The collective bargaining agreement mandated union representation only at the “ ‘the questioning of an officer pursuant to the formal investigation procedures’ but not ‘questioning *** as part of an informal inquiry.’ ” Ehlers, 183 Ill. 2d at 95, quoting 50 ILCS 725/2(d) (West 1992). Based on its finding of waiver, the supreme court left unresolved the sheriff’s contention “that Weingarten-type rights should not be extended to public employees such as Ehlers.” Ehlers, 183 Ill. 2d at 92. “Even assuming, arguendo, that Ehlers had Weingarten-type rights, her own collective bargaining agreement expressly waived those rights here.” Ehlers, 183 Ill. 2d at 93. The supreme court affirmed the firing of Sergeant Ehlers, who was also a member of the collective bargaining unit represented by the Illinois Fraternal Order of Police Labor Council. Ehlers, 183 Ill. 2d at 84.

Here, the IELRB impliedly concedes that no provision in the collective bargaining agreement mandates union representation at the postevaluation meetings aimed at addressing the remediation that Speed District 802 concluded Ms. Warning needed: “It is unnecessary for us to decide whether denying Warning union representation at the postevaluation 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 [43 L. Ed. 2d 171, 95 S. Ct. 959] (1975).” The IELRB seeks to skirt Ehlers’s reference to the Weingarten-type rights: “In this case it is not alleged that the District violated the Act by denying Warning union representation, but rather that it retaliated against her for having union representation.” This nice distinction makes no difference in the case before us. Either Ms. Warning had the right to have union representation at the postevaluation meetings or she did not. If she did not, Speed District 802 was well within its “supervisory authority” to restrict union representation at the postevaluation meetings to a nonactive role. See Schaumburg Community, 247 Ill. App. 3d at 455 (IELRB’s interpretation of section 3 of the Illinois Educational Labor Relations Act (now 115 ILCS 5/3 (West 2006)) rejected because it would make “the exercise of supervisory authority impossible”).

I read Ehlers to bar the IELRB from transforming Ms. Warning’s desire to have union representation at the postevaluation meetings into union activity when no such right exists in the collective bargaining agreement between Speed District 802 and Speed Education Association, Ms. Warning’s union. Similar to the one at issue in Ehlers, the collective bargaining agreement here provides: “A bargaining unit member shall be entitled to have present a representative of the Association during any meeting which leads to disciplinary action. *** [However,] [disciplinary action is not performance based.” The postevaluation meetings, central to the IELRB’s finding, were indisputably about Ms. Warning’s performance under the collective bargaining agreement. “Remediation of staff for performance based reasons shall not be subject to grievance and/or arbitration.” That Ms. Warning’s performance, as a probationary teacher in her last year of probation, could have resulted in the nonrenewal of her contract does not transform the performance-based meeting into one that “leads to disciplinary action.” The IELRB’s claim in its brief that Ehlers is distinguishable because Ehlers addressed a discharge for “ ‘cause’ ” and the instant case is about “retaliation” is simply unpersuasive as it fails to address Ehlers’s true holding.

Nor is the IELRB’s claim that Ms. Warning engaged in “union activity” by having a union representative present with her at the postevaluation meetings any more persuasive. Ms. Warning stands alone in her claim that she was retaliated against by Speed District 802 based on her insistence of having a union representative present at the postevaluation meetings. In its order, the IELRB acknowledges that another member of Speed Education Association successfully completed the remediation process with a union representative present before Speed District 802. The IELRB seeks to limit the significance of this by observing that this probationary teacher was “represented by a union representative other than Wierzbicki” and “the District apparently did not dismiss” this other probationary teacher. (Emphasis added.) The IELRB concludes that “it was in particular to Wierzbicki’s [the union representative] assertiveness in representing Warning that the District objected.” I agree. There is no question but that Ms. Wierzbicki’s assertiveness transformed the postevaluation meetings into adversarial proceedings, with Ms. Wierzbicki acting as Ms. Warning’s advocate, causing the initial aim of the postevaluation meetings of developing a plan to improve Ms. Warning’s teaching skills to be lost.

The IELRB’s order makes note of Ms. Wierzbicki’s assertiveness in arriving at its conclusion that the nonrenewal of Ms. Warning was a “pretext” for antiunion animus. This finding that Ms. Wierzbicki took on a major role in the postevaluation meetings, I submit, makes this case indistinguishable from Schaumburg Community. There the record, like the record here, “is void of any conclusion that [the union member school teacher’s] activity was anything but personal in nature.” Schaumburg Community, 247 Ill. App. 3d at 457. The rule of law is “that the National Labor Relations Act protects individual employees who invoke contractual rights because their activity is a direct extension of the collective bargaining process.” Schaumburg Community, 247 Ill. App. 3d at 458, citing National Labor Relations Board v. City Disposal Systems, Inc., 465 U.S. 822, 79 L. Ed. 2d 839, 104 S. Ct. 1505 (1984). However, “[t]he right to challenge the content of evaluations was excluded from the collective bargaining agreement.” Schaumburg Community, 247 Ill. App. 3d at 458. In Schaumburg Community, consistent with the holding in Ehlers, we concluded that this explicit right to challenge was excluded not because it was enumerated under a provision dealing with “excluded rights” but because it was not expressly contained within the collective bargaining agreement as a right that each member had under the agreement. “Individual employees do not have the right to insist on terms and conditions in addition to or different from what has been negotiated by their exclusive representative. The Act does not protect employees who demand ‘rights’ [that] are excluded from the collective bargaining agreement [by their very absence].” Schaumburg Community, 247 Ill. App. 3d at 458.

I find the conduct engaged in at the postevaluation meetings by Ms. Wierzbicki, as Ms. Warning’s advocate, to be no different from the conduct we found to be “rude and unprofessional” in Schaumburg Community. Schaumburg Community, 247 Ill. App. 3d at 458. Faced with such conduct, Speed District 802 was justified in not renewing Ms. Warning’s contract.

Finally, even if the IELRB’s conclusion that “the District violated Section 14(a)(3) and, derivatively, Section 14(a)(1) of the Act by nonrenewing Warning” were well grounded in the record, Illinois law grants exclusively to a school board the discretion to grant tenure to a probationary teacher. Midwest Central, 277 Ill. App. 3d at 446. In Midwest Central, the IELRB recognized and accepted that “the power to renew a nontenured teacher was reserved exclusively to the [School] District’s discretion” where the remedy was ordered by an administrative law judge in upholding an arbitrator’s ruling. Midwest Central, 277 Ill. App. 3d at 443-44. The IELRB now contends it, too, has the authority to grant tenure. The IELRB arrogates such authority based, in part, on an opinion issued by “the California Court of Appeal.” Whatever the law may be in California, Illinois law has been declared by this court in Midwest Central that under the School Code, only a local school board has that authority. I am unpersuaded by the arguments the IELRB makes for its newly staked position that it stands in equal footing with a local school board to grant tenure. What the IELRB fails to address in the remedy it awards to Ms. Warning is Speed District 802’s conclusion that Ms. Warning was in need of remediation to remain a teacher within the district. Whatever remedy Ms. Warning may be entitled to for the claimed unfair labor practice, it is not lifetime tenure.

I dissent.