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.
I. The Collective-Bargaining Agreement
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, 791 A.2d 1169, 1174 (Pa. 2002). The United States Supreme Court has recognized that the “fundamental premise” of the NLRA is private bargaining without any official compulsion over the actual terms of the contract, but with governmental supervision of only the bargaining procedure. H.K. Porter Co. v. National Labor Relations Board, 397 U.S. 99, 108 (1970).11 Indeed, federal labor law is chiefly designed to promote the formation of the collective-bargaining agreement and the private settlement of disputes under it. Mulvihill v. Top-Flite Golf Co., 335 E3d 15, 24 (1st Cir. 2003); United Telegraph Workers v. Western Union Corp., 771 F.2d 699, 704 (3d Cir. 1985).
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 (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, 550 N.W2d 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, 908 A.2d 790, 794 (N.H. 2006) (same; holding that school district violated collective-bargaining agreement regarding teacher evaluation procedures). Therefore, where “a collective bargaining agreement is in place, representation rights must be based upon, and may be limited by, that pact.” Landers v. National R.R. Passenger Corp., 814 F.2d 41, 47 (1st Cir. 1987), aff'd, 485 U.S. 652 (1988).
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. 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:
“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.” 242 Ill. 2d at 121-22.
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 (Freeman, J., dissenting, joined by Theis, J.). Significantly, the majority cited only part of section 3 — 8F of the collective-bargaining agreement. That entire section reads as follows, with the part omitted from the majority opinion italicized: “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.) Further, my colleagues in the majority omit entirely section 7H of the employee handbook, which 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.) Also, section 3 — 10A provides that a teacher is entitled to union representation for disciplinary matters. These provisions supplied the context and justification for Warning’s actions.
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.12
II. Protected Union Activity
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 131-32 (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 clearly entitled to union representation at the meetings during the 2004-05 school year. The collective-bargaining agreement entitled Warning to union assistance insofar as she: (1) questioned her evaluative procedure; (2) responded to the December 2004 disciplinary matter; and (3) was reasonably confused by Runyan’s express intermingling of remediation and disciplinary issues. See 242 Ill. 2d at 144 (Freeman, J., dissenting, joined by Theis, J.). Rehearing is necessary in order to provide an analysis that takes into account these undisputed facts.
III. Pejorative Remarks
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 104. In concluding their analysis, my colleagues again decried Warning as follows:
“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.” (Emphasis added.) 242 Ill. 2d at 122.
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 (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 F. App’x 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 U.S. Dist. LEXIS 48193 (E.D. Ark. June 23, 2008) (other employees “talked back” to supervisor, while plaintiff-employee fired for “insubordination”); Fulmore v. Home Depot, U.S.A., Inc., No. 1:03 — cv—0797—DFH—VSS, 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.
Regrettably, my colleagues in the majority publicly deprecated Warning for exercising her legal right to question her evaluative procedure, and expressly chastised her for exercising her right. I believe that rehearing is warranted to remedy this.
IV Conclusion
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.13
For the foregoing reasons, I dissent from the court’s denial of the petition for rehearing.
This court overlooked the settled legal principle that federal interpretation of the National Labor Relations Act (NLRA) is persuasive authority in construing the Illinois Educational Labor Relations Act (IELRA). 242 Ill. 2d at 135-37 (Freeman, J., dissenting, joined by Theis, J.) (collecting cases).
Indeed, another small example of the court’s oversight is found in the court’s erroneous citation to section 34 — 84 of the School Code (105 ILCS 5/34 — 84 (West 2004)). 242 Ill. 2d at 100 n.2; 242 Ill. 2d at 127 n.6 (Freeman, J., dissenting, joined by Theis, J.). In the petition for rehearing, petitioners note: “All parties agree that [section 24 — 11] is the applicable School Code provision.” Rehearing provides an opportunity to correct this.
Petitioners contend that the Board’s award of tenure to Warning was the appropriate remedy. However, I continue to believe that the appropriate remedy would have been to restore Warning to a final probationary year.