dissenting:
The majority has concluded that the procedural violations claimed by the Union are not violations of the collective bargaining agreement (CBA), there is nothing to arbitrate, and the cause is remanded to the IELRB with directions to dismiss the complaint against the District.
What the majority is actually concluding in its opinion is that a procedural grievance of a probationary teacher who has not been renewed cannot be in violation of the CBA.
I. Arbitrability Finding
In the instant case, the IELRB determined that the District violated section 14(a)(1) of the Act based on its finding that the District refused to arbitrate the teachers’ grievances that there were no teacher performance evaluations and proper personnel files maintained.
The District contends that the issue before the IELRB was whether its dismissal of the nontenured teachers was arbitrable based on the CBA. The District maintains that the grievances were not arbitrable because they concerned the District’s failure to renew the contacts of probationary teachers, which is not arbitrable under article IV, section 9, of the CBA. The majority adopts the District’s position. The majority and the District claim that the language employed in the grievances makes it clear that the Union was grieving the dismissal of probationary teachers. The IELRB chose to find in the four corners of the grievances language that there was a claim of procedural violations of the CBA by the District failing to maintain personnel files on the teachers and that these procedural violations are separate and distinct from the issue of dismissals.
The majority agrees that improper record keeping can be decided in an arbitration forum for the reasons and cases cited in the IELRB order and then reverses the IELRB and remands the case with directions to dismiss the complaint against the District. This makes no sense.
The IELRB and the Union contend that the issue before the IELRB was whether there were procedural irregularities in the evaluations of the teachers and their personnel files, not the issue of the nonrenewal of the teachers’ contracts. The IELRB found that there was no dispute that arbitration of grievances based on the procedural irregularities is required.
Article IV of the CBA set forth the procedural requirements for the evaluation of teachers, requiring that the evaluations be based on objective measures within one week of their observation and that the teacher be given specific recommendations for improvement.
Article V established procedural requirements for maintaining teachers’ personnel files requiring that each file include all documents related to the teachers’ performance.
Pursuant to section 14(a)(1) of the Act, an unfair labor practice can be found where an educational employer interferes with, restrains, or coerces an employee in the exercise of the rights guaranteed to him under the Act. 115 ILCS 5/14(a)(1) (West 2004). An employer’s refusal to arbitrate a grievance considered arbitrable under a collective bargaining agreement or the law constitutes an unfair labor practice. Board of Trustees, Prairie State College v. Illinois Educational Labor Relations Board, 173 Ill. App. 3d 395, 408-09 (1988). An employer may raise the defense that a grievance is not arbitrable under the collective bargaining agreement or under the law. Staunton Community Unit School District No. 6 v. Illinois Educational Labor Relations Board, 200 Ill. App. 3d 370, 374-76 (1990). When this defense is raised, the IELRB makes the initial determination as to whether the grievance is subject to arbitration “by looking at whether the grievance falls within the terms of the collective-bargaining agreement.” Staunton, 200 Ill. App. 3d at 376. If the IELRB determines that the grievance is subject to arbitration, the parties must arbitrate the grievance. Staunton, 200 Ill. App. 3d at 376. During the arbitration process, an employer may again raise the defense that the grievance is not subject to arbitration, as well as any affirmative defenses regarding procedural defects in the grievance and its merits. Staunton, 200 Ill. App. 3d at 376. The arbitrator will then have the opportunity to make a finding as to whether the issue is subject to arbitration.
An agreement to arbitrate is a matter of contract. Salsitz v. Kreiss, 198 Ill. 2d 1 (2001). In fact, the United States Supreme Court has determined that “arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed to submit.” United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 4 L. Ed. 2d 1409, 1417, 80 S. Ct. 1347, 1353 (1960).
The provisions of the CBA relied on by the Union as the teachers’ grievances were as follows: article IV entitled “Evaluation of Teachers and Supervisory Procedures,” section 1, entitled “Criteria and Procedures-General,” and section 2, entitled “Notification of Deficiencies,” which set forth the procedural requirements for the evaluation of teachers. The procedures included requiring that the evaluations be based on objective measures, the teacher be given notice of performance deficiencies, and the teacher be given specific recommendations for improvement. Article Y, entitled “Teacher Personnel Files,” section 1, entitled “Official Board File,” section 2, entitled “File Defined,” section 6, entitled “Right of Fair Record,” and section 8, entitled “Right of Addition and Attachment,” established the procedural requirements for maintaining a teacher’s personnel file. This included the requirement that each file contain all documents related to the teacher’s performance.
In each of the three grievances, the Union first stated the District and it were in accord that “evaluation of a teacher’s performance *** and professional duties” are to be measured by the criteria agreed upon by the District and Union. Following this, the Union stated that the District must have had some reason to dismiss the named teacher, but this was not apparent or supported by an evaluation. The Union also stated that the firing of the named teachers constituted a serious breach of the CBA. According to the Union, the reasons for the dismissal were nowhere documented and the District was keeping or accessing another file related to the “nature and quality” of the teacher’s service. The Union concluded that this was a violation of sections 1 and 2 of article IV and such a violation negated a teachers’ right under article V sections 6 and 8. As a remedy, the Union stated that should reinstatement be legally unavailable, it sought damages or other relief to make the named teacher whole “for the harm caused by the contract violation.”
While grievances refer to the teachers’ firing and their contracts, the basis for these matters are clearly the procedural violations in the teachers’ evaluations and personnel files. There simply is no language in the grievances to conclude that the Union was attacking only the merits of the firings. Instead, the grievances simply alleged that some reason must have existed, which was not included in the teachers’ personnel files, in violation of the provisions of the CBA. In fact, on page 3 of the District’s brief, it agrees that “only a grievance concerning evaluation procedures could possibly have been arbitrable in the instant case.”
The fact that the grievances identified the subject “Re: Board level grievance of dismissal of [the named teacher],” as argued by the District in support of its position that the Union was solely challenging its dismissal of the nontenured teachers, puts form over substance. As the IELRB’s decision reflects, the line identifying the subject of the grievance was not dispositive of its nature. The plain text of the grievances specifically identified which sections of the CBA were allegedly violated. Those sections pertained to procedures with regard to teachers’ evaluations and files. Article IX section 11, of the CBA expressly provides that grievances of this nature are subject to arbitration.
The majority agrees that grievances by nontenured teachers that address the administration or interpretation of the CBA are subject to binding arbitration (115 ILCS 5/10(c) (West 2004)); however, it finds that the grievances filed in the case at bar do not address the administration or interpretation of the CBA, only the firing of the teachers. I agree that the decision to dismiss the nontenured teachers is not subject to arbitration, but the grievance concerning the evaluation procedures and maintenance of personnel files concerning the teachers is arbitrable. To hold otherwise would mean that when a grievance contains matters that are subject to arbitration and other matters that are not subject to arbitration, the grievance fails and the employee does not have the right to arbitration.
II. Remedy
The majority has not considered the remedy ordered by the IELRB because it found that the grievances were not subject to arbitration and as a result there was no unfair labor practice.
The District contends that the IELRB lacked authority to impose a remedy. The District argues that only an arbitrator has such authority if it finds a violation of the parties’ contract. The District further argues that the remedy providing for loss of pay and benefits to the teachers, with 7% interest, “was to be made irregardless of the arbitrator’s ultimate finding as to whether there was a violation of the CBA.” The Union and the IELRB contend that, pursuant to the IELRB’s decision, any monetary award to compensate the teachers for the delay in arbitration would only be realized if the arbitrator found a violation of the CBA.
A remedy ordered by the IELRB for commission of any unfair labor practice is reviewed under the abuse of discretion standard. Paxton-Buckley-Loda Educational Ass’n v. Illinois Educational Labor Relations Board, 304 Ill. App. 3d 343, 353 (1999) (Paxton). The IELRB’s remedial authority is broad and flexible, and it must attempt to fashion a make-whole remedy based on the evidence to place the parties in the same position they would have been in had the unfair labor practice not been committed. Paxton, 304 Ill. App. 3d at 353. However, the issue of damages in this case should be decided by an evidentiary hearing and the remedy to be imposed is a matter for the arbitrator, since it would be premature for the IELRB to anticipate what the arbitration proceedings will disclose.
I believe that the IELRB did abuse its discretion in imposing a remedy. The remedy the District challenges on appeal is loss of pay and benefits, with 7% interest, to the teachers. The District maintains that this remedy is premature and I agree. Even though the IELRB made it clear that “whether there will be any loss resulting from the delay and the amount of the loss will be determined by the findings of the arbitrator,” an evidentiary hearing would better serve the question of damages.
CONCLUSION
For the reasons stated, I believe the judgment of the IELRB should be affirmed in part and reversed in part.