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), 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.
I. BACKGROUND
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).6
A. Employment Documents
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 a complete copy of the evaluation instrument.” Subsection B further provides that the evaluation of all teachers shall be completed by March 1.
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 with a 12-month period to correct the behavior.
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.
B. Warning’s Meetings With District Personnel
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:
“On Friday, December 3, 2004, a substitute paraprofessional reported to me that you had used inappropriate language with her prior to the Holiday break. I discussed the incident with you while the substitute was present and you stated that you did use the language but it was in the context of ‘joking.’ After further investigation, a paraprofessional present during the incident confirmed that inappropriate language was used. She stated that she did not feel that the language was directed towards anyone or meant to be derogatory. However, as Mr. Runyan and I discussed with you in the presence of Beth Wierzbicki (Union representative), inappropriate language should not be used in the classroom setting regardless of the context. Furthermore, this is the second incident during your employment with [the District] in which a substitute paraprofessional expressed concerns about the use of inappropriate language. As Mr. Runyan and I discussed with you, this behavior is unacceptable and must be corrected immediately. Your interaction with all staff must be professional and appropriate for the school setting. The following are expectations of you in the future:
• You will refrain from using inappropriate language in the classroom. Another report could result in disciplinary action up to dismissal.
• You will be responsible for selecting and participating in training focusing on building your skills in interacting with adults in the school setting. You must receive approval from Mr. Runyan prior to participating.
• You will meet with Mr. Runyan and I prior to the end of the school year to discuss your progress.
*This memo will remain in your personnel file for the duration of your employment with [the District].” (Emphases added.)
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:
“Warning had a meeting with Principal Runyan to discuss Runyan’s recent observation of Warning’s class. Warning requested Union representation at this meeting and was accompanied by Wierzbicki. At this meeting, Runyan provided Warning with a summative evaluation in which he gave Warning unsatisfactory rating[s] in instructional planning and development, management of instructional time, instructional presentation and feedback, [and] communication and professional responsibilities. Runyan stated in his evaluation of Warning that due to the overall summative rating of unsatisfactory, it was his recommendation that Warning be placed on a plan to correct her deficiencies. Runyan attached a corrective deficiency plan to his evaluation and stated that *** Warning must take corrective actions by May 1, 2005, or Runyan would recommend her termination. At the meeting, Warning asked that Mr. Runyan separately rate each objective cited in her evaluation. Runyan denied Warning’s request, stating that he would not separately rate each objective, that he was not required to do so and that he had never done so in the past. Wierzbicki responded that Runyan had rated each of the objectives in her [Wierzbicki’s] evaluation separately. Wierzbicki was evaluated using a different instrument than Warning. At the conclusion of the meeting, Runyan stated that Wierzbicki would not be needed at any further meetings. Warning responded that she wanted Union representation. Runyan stated that ‘having the Union involved just makes the situation more complicated, I would rather just go through giving you instructions.’ ”
Warning and Wierzbicki each testified at the administrative hearing. According to their testimony, Principal Runyan’s evaluative procedures did not conform to the format prescribed by the employee handbook. Warning brought the handbook to the meeting, where she and Wierzbicki pointed to the prescribed evaluation format that Runyan should have used. As the meeting progressed, Runyan’s demeanor was described as growing increasingly “nervous,” “agitated,” “impatient,” and “angry.”
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:
“During the school year we had one identified incident that was discuss[ed] with Dr. [Clasberry] (Director of Human Resource[s]) and myself. During our meeting it was brought to my attention that this was the second incident within one calendar year related to inappropriate comments directed towards a paraprofessional supporting you in the classroom. I shared with you during the year that some support staff members have felt intimidated in your classroom setting. As a classroom instructor you have the responsibility of setting the tone and climate in modeling appropriate communications/actions with all students and staff members within classroom and building setting [sic].”
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. 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. Additional pertinent background will be discussed in the context of my analysis of the issues.
II. ANALYSIS
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)(l), (a)(3) (West 2004)). If so, the next question is whether the grant of tenure to Warning was the appropriate remedy.
A. Unfair Labor Practice
The primary issue in this case is simple: Was Warning engaged in a protected union activity when she insisted on having Wierzbicki attend the meetings at issue during the 2004-05 school year? The court holds that she was not. I disagree with this conclusion because the collective-bargaining agreement allowed for such representation. Having concluded that Warning was legally entitled to have Wierzbicki present at the meetings, I have no trouble accepting the Board’s finding that the District terminated Warning because she had engaged in protected union activity.
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)(l), (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 (2005); City of Burbank v. Illinois State Labor Relations Board, 128 Ill. 2d 335, 345 (1989); Wapella Education Ass’n v. Illinois Educational Labor Relations Board, 177 Ill. App. 3d 153, 161 (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 (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 at 957; Georgetown-Ridge Farm Community Unit School District No. 4 v. Illinois Educational Labor Relations Board, 239 Ill. App. 3d 428, 464 (1992). Because the test of discrimination under section 14(a)(3) turns on motive and because motive is a question of fact (City of Burbank, 128 Ill. 2d at 345), this court is limited to ascertaining whether the Board’s findings are against the manifest weight of the evidence. “An administrative agency’s factual determinations are contrary to the manifest weight of the evidence where the opposite conclusion is clearly evident.” City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 204 (1998). The District contends that Warning failed to establish the first and third elements of her prima facie case.7
1. Protected Union Activity
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; Abuzir, 22 PERI H143 (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), “postevaluation meetings” (see 242 Ill. 2d at 111), “evaluation conference” (see 242 Ill. 2d at 104, 119, 122), “postobservation remediation meetings” (see 242 Ill. 2d at 119), and a meeting that involved potential “discipline” (see 242 Ill. 2d at 102). 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.
During the 2004-05 school year, Warning’s fourth and final probationary year, her first confrontation with the District is memorialized in the December 8, 2004, memorandum from Dr. Clasberry, the District’s human resources director. Union representative Wierzbicki accompanied Warning at the meeting. The memorandum expressly referred to “disciplinary action up to dismissal,” and directed Warning to meet with Dr. Clasberry and Principal Runyan prior to the end of the school year to discuss the matter. Further, the memorandum stated that it would remain in her personnel file for the duration of her employment with the District. This matter was indisputably treated as employee discipline pursuant to section 3 — 10 of the collective-bargaining agreement.
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 (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. 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; (2) the right arises only in situations where the employee requests representation; (3) the employee must reasonably believe the investigation will result in disciplinary action; (4) exercise of the right may not interfere with legitimate employer prerogatives. In other words, the employer is free to continue the investigation without interviewing the employee, and thereby leave to the employee the choice between having an interview unaccompanied by the representative, or having no interview and forgoing any benefits that might be derived therefrom; (5) the employer has no duty to bargain with any union representative who may be permitted to attend the investigatory interview. Id. at 256-60.
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; 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.
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 1Í1009 (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.8
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 conferences of tenured teachers under remediation, based on the provisions of the Education Reform Act of 1985, which added article 24A to the School Code. Pub. Act 84 — 126 (eff. Aug. 1, 1985); Pub. Act 84 — 972 (eff. Sept. 25, 1985) (adding 105 ILCS 5/art. 24A). The Board observed that section 24A sets forth the minimum role of the union in the evaluation process, subject to supplementation of that role through collective bargaining. The Board in Summit Hill further observed that the collective-bargaining agreement in that case did not provide for union representation at postevaluation conferences. Consequently, the Board in Summit Hill found that the school district did not violate the IELBA by refusing the teacher’s request for union representation during a postobservation conference.
In the present case, while the Board found it unnecessary to apply Weingarten and Summit Hill in this case,9 I agree with the ALJ that the Summit Hill limitation of Weingarten rights does not apply to nontenured teachers. As the ALJ correctly noted, the remediation process for a nontenured teacher is notably different from the process that article 24 of the School Code prescribes for tenured teachers. For example, where a tenured-teacher evaluation results in an unsatisfactory rating, participants in the remediation plan include not only the teacher and administrator, but also a “consulting teacher,” who must be a bargaining unit employee. The union is permitted to supply a roster of teachers qualified to serve as consulting teachers, and a school district must select a consulting teacher from that list. The consulting teacher helps to develop the remediation plan, and then advises the tenured teacher in remediation on how to improve his or her teaching skills. See 23 Ill. Adm. Code 25.875. No similar provisions exist in the School Code and supporting regulations for nontenured teachers. In the absence of such provisions, the remediation process for a nontenured teacher is governed by the collective-bargaining agreement.
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. Because Warning did seek union assistance during the 2004-05 meetings with the District, I would hold that Warning engaged in protected union activity, satisfying the first element of her prima facie case.
2. Antiunion Motivation
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. 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 (quoting National Labor Relations Board v. Transportation Management Corp., 462 U.S. 393, 401 (1983)). Surveying federal labor law decisions, this court explained:
“Antiunion motivation may reasonably be inferred from a variety of factors, such as an employer’s expressed hostility towards unionization, together with knowledge of the employee’s union activities [citation], proximity in time between the employees’ union activities and their discharge [citation], disparate treatment of employees or a pattern of conduct which targets union supporters for adverse employment action [citations], inconsistencies between the proffered reason for discharge and other actions of the employer [citation], and shifting explanations for the discharge [citations].” City of Burbank, 128 Ill. 2d at 346.
Since motive is a question of fact, the Board may infer discriminatory motive from either direct or circumstantial evidence. Id. at 345.
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:
“You received an unsatisfactory rating in two main areas: Instructional Presentation and Professional Communication/Responsibilities. *** There has been some demonstrated improvement in the area of instruction. You have taken steps to align your instruction to state standards in design and implementation.
[While] you were working on the plan to correct deficiencies more concerns were raised due to your lack of ability to communicate. You made the choice to be late for several scheduled meetings and failed to participate in a process that enabled you and me to communicate freely. Your actions have created barriers in our ability to effectively communicate. The process was tension driven and failed to honestly develop to a relationship to move forward in this area.
*** You failed to consistently provide prepared evidence when requested and seemed inadequately prepared for our meetings. We were unable to get into open dialog during our meeting time. During the conversations you failed to see your role in the breakdown of communications. The corrective process became cumbersome and chaotic due to the choices you made.
By the time this process was over there appeared to be little growth in the area of improved communication. Therefore it is my assessment that you have not met the terms of the plan to correct deficiencies. It will be my recommendation to [the District] that you be terminated.” (Emphases added.)
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.
3. District’s Affirmative Defense
Once a complainant establishes a prima facie case:
“the employer can avoid a finding that it violated the statute by demonstrating that the discharged employee would have been fired for a legitimate business reason notwithstanding the employer’s antiunion animus. [Citations.] Merely proffering a legitimate business reason for the adverse employment action does not end the inquiry, for it must be determined whether the reasons advanced are bona fide or pretextual. If the suggested reasons are a mere litigation figment or were not relied upon, then the determination of pretext concludes the inquiry. [Citation.] However, where the employer advances legitimate reasons for the discharge and is found to have relied upon them in part, then the case is characterized as one of ‘dual motive’ and the employer must demonstrate by a preponderance of the evidence that the employee would have been terminated notwithstanding his union involvement.” City of Burbank, 128 Ill. 2d at 346-47.
Accord Bloom Township, 312 Ill. App. 3d at 960; Georgetown-Ridge, 239 Ill. App. 3d at 464. This burden shifting has been characterized as an affirmative defense for the employer. See Transportation Management Corp., 462 U.S. at 400.
The Board concluded that this was a “pretext case.” The Board noted the District’s asserted reasons for non-renewing Warning’s contract — her alleged failure to re-mediate concerning professional communications and her allegedly inadequate teaching abilities. The Board found that Runyan’s April 22, 2005, evaluation of Warning evinced the pretextual nature of the District’s asserted reasons. The evaluation indicated that the District was not discharging Warning based on her allegedly inadequate teaching abilities, because Runyan stated in the evaluation that Warning had shown “demonstrated improvement” in the area of instruction. The Board observed that the evaluation also contained “veiled references” to Warning’s insistence that she be represented by Wierzbicki. Moreover, according to the Board, “Runyan inaccurately stated in the memorandum that Warning was late for several scheduled meetings and failed to provide ‘prepared evidence when requested.’ The inaccuracy of these statements demonstrates their pretextual nature.”
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.10 This employee was not dismissed. The Board found that the District objected particularly to “Wierzbicki’s assertiveness in representing Warning.”
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; Bloom Township, 312 Ill. App. 3d at 957; Georgetown-Ridge, 239 Ill. App. 3d at 465. 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 (2006); Jackson v. Board of Review of the Department of Labor, 105 Ill. 2d 501, 513 (1985); Board of Regents of Regency Universities v. Illinois Educational Labor Relations Board, 208 Ill. App. 3d 220, 230 (1991). Here, the evidence supports the Board’s finding that the District’s stated reasons for non-renewing 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, which clearly allows for union representation. The second alleged deficiency was Warning’s “instructional presentation,” which, as the Board observed, Runyan concluded that Warning had “demonstrated improvement.” Warning had the right, with the assistance of Wierzbicki, to question in good faith whether the format of Warning’s evaluation constituted a “violation, misinterpretation, or misapplication” of the collective-bargaining agreement. The manifest weight of the evidence supports the Board’s findings that Warning established a prima facie case of a violation of section 14(a)(3) of the IELRA, and that the District’s proffered reasons for nonrenewing Warning’s contract were pretextual. Consequently, I would uphold the Board’s determination that the District committed an unfair labor practice as not clearly erroneous.
B. Remedy
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.
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 (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.
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:
“[T]he Board [NLRB] has not been commissioned to effectuate the policies of the [NLRA] so single-mindedly that it may wholly ignore other and equally important Congressional objectives. Frequently the entire scope of Congressional purpose calls for careful accommodation of one statutory scheme to another, and it is not too much to demand of an administrative body that it undertake this accommodation without excessive emphasis upon its immediate task.” Southern S.S. Co. v. National Labor Relations Board, 316 U.S. 31, 47 (1942).
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 (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 (1975). This court has explained the significance of teacher tenure as follows:
“The dispositive factor in our consideration is a determination of the intent of the legislature in enacting sections 24 — 11 and 24 — 12 of the School Code. One objective of teacher tenure is ‘to assure continuous service on the part of teachers of ability and experience.’ [Citation.] The tenure system is, we believe, intended to provide continuity and stability for students; provide some degree of job security, thus affording teachers the ability to pursue a career free from arbitrary hiring and firing; attract teachers of high quality; and retain experienced teachers. Since, however, the statutes create liabilities where none would otherwise exist, they must be strictly construed in order not to unduly interfere with the responsibility of local boards to efficiently operate the educational systems.” Johnson v. Board of Education of Decatur School District No. 61, 85 Ill. 2d 338, 344 (1981).
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:
“The proper remedy in this case would be to reinstate Warning for another final probationary year and order that she be evaluated by someone other than Principal Benoit or Dr. Betty Pointer. *** This remedy, rather than reinstatement with tenure, would place Warning in ‘the position that would have obtained had the illegal conduct not occurred.’ [Paxton-Buckley-Loda, 304 Ill. App. 3d at 353.] If Warning had not been non-renewed on the basis of her union activity, there would have been an assessment by [the District] as to whether tenure was appropriate on other grounds. Putting Warning in the position in which she would have been if a decision had not been made to non-renew her on the basis of her union activity includes allowing such an assessment.”
I agree and would so hold. Courts must uphold and enforce the rights granted by collective-bargaining agreements. In fulfilling this duty, however, courts must be vigilant not to intrude upon the province of educational employers as provided by the School Code.
III. CONCLUSION
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.
Dissenting Opinions Upon Denial of Rehearing
This court cites section 34 — 84 of the School Code (105 ILCS 5/34 — 84 (West 2004)) for this four-year probationary period. 242 Ill. 2d at 100 n.2. This section provides specifically for appointments and promotions of teachers in cities having a population exceeding 500,000 persons. However, section 24 — 11 expressly states: “The employment of any teacher in a program of a special education joint agreement *** shall be under this and succeeding Sections of this Article.” 105 ILCS 5/24 — 11 (West 2004).
The District concedes that Warning established the second element of her prima facie case. The District indisputably knew of Warning’s union activity. On multiple occasions during the 2004-05 school year, Principal Runyan met personally with Warning and her union representative, Wierzbicki. Also, Runyan continually referred to Warning “having the Union involved,” and directed Warning not to bring union representation with her to their meetings.
Therefore, this court’s characterization of Warning as “taking an assertive and confrontational stance with regard to her evaluation” (242 Ill. 2d at 122) is not only erroneously pejorative, but also contrary to this express Board recognition.
The Board reasoned: “In this case it is not alleged that the District violated the [IELRA] by denying Warning union representation, but rather that it retaliated against her for having union representation. ’ ’
The fact that other employees had union representation during meetings with District personnel underscores my belief that the collective-bargaining agreement entitled Warning to such assistance.