                                  Illinois Official Reports

                                          Appellate Court



   Board of Education of the City of Chicago v. Illinois Educational Labor Relations Board,
                                  2013 IL App (1st) 122447




Appellate Court              THE BOARD OF EDUCATION OF THE CITY OF CHICAGO,
Caption                      Petitioner, v. ILLINOIS EDUCATIONAL LABOR RELATIONS
                             BOARD, LYNNE O. SERED, IELRB Chairman; IELRB Members,
                             RONALD F. ETTINGER, GILBERT O’BRIEN, MICHAEL H.
                             PRUETER, MICHAEL K. SMITH, and SERVICE EMPLOYEES
                             INTERNATIONAL UNION LOCAL 73, CLC, CTW, Respondents.


District & No.               First District, Third Division
                             Docket No. 1-12-2447


Filed                        December 18, 2013


Held                         In an action arising from the termination of a school security officer as
(Note: This syllabus         a result of an altercation with two students, the finding of the Illinois
constitutes no part of the   Educational Labor Relations Board that the school board committed
opinion of the court but     an unfair labor practice by refusing to turn over the disciplinary
has been prepared by the     records of the students pursuant to a subpoena issued by the arbitrator
Reporter of Decisions        at the request of the officer’s union in his grievance proceeding was
for the convenience of       reversed, since the disclosure of the records was prohibited by the
the reader.)                 Student Records Act in the absence of a court order, and although the
                             arbitrator’s subpoena was not a court order, the clear relevance of the
                             records would indicate that an actual court order could be easily
                             obtained.


Decision Under               Petition for review of order of Illinois Educational Labor Relations
Review                       Board, No. 2011-CA-0088-C.



Judgment                     Reversed.
     Counsel on               James L. Bebley and Lee Ann Lowder, both of Board of Education,
     Appeal                   Chicago, for petitioner.

                              Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
                              Solicitor General, and Sharon Purcell, Assistant Attorney General, of
                              counsel), for respondent Illinois Educational Labor Relations Board.

                              Tyson B. Roan, of Service Employees International Union, Local 73,
                              of Chicago, for respondent Service Employees International Union,
                              Local 73.

                              Dowd Bloch & Bennet, of Chicago (Robert E. Bloch and Josiah A.
                              Groff, of counsel), for amicus curiae Chicago Teachers Union.



     Panel                    JUSTICE MASON delivered the judgment of the court, with opinion.
                              Presiding Justice Hyman and Justice Neville concurred in the
                              judgment and opinion.


                                             OPINION

¶1          Petitioner Board of Education of the City of Chicago (Board) seeks direct administrative
       review of the finding of the Illinois Educational Labor Relations Board (IELRB) that it
       committed an unfair labor practice when it refused to release student records during a
       grievance proceeding arising out of the Board’s termination of a member of the Service
       Employees International Union, Local 73 (Union). On direct appeal to this court pursuant to
       Illinois Supreme Court Rule 335 (eff. Feb. 1, 1994) and section 3-115 of the Code of Civil
       Procedure (735 ILCS 5/3-113 (West 2010)), the Board argues that section 6 of the Illinois
       School Student Records Act (105 ILCS 10/6 (West 2010)) (Student Records Act), prohibited it
       from releasing student records without a court order, notwithstanding the Union’s willingness
       to accept a redacted version of the records. The Board further contends that its one-time refusal
       to provide the records did not constitute an unfair labor practice. For the reasons that follow,
       we reverse.

¶2                                           BACKGROUND
¶3          This case arises out of the February 2010 termination of Clinton Cooper, a school security
       officer at Emil G. Hirsch High School. The Board discharged Cooper, a union member, on the
       grounds that he initiated physical altercations with two students, D.E. and R.G. The Union
       initiated a grievance proceeding stemming from this discharge. As a basis for challenging
                                                   -2-
     Cooper’s termination, the Union contended that the altercation with R.G. never occurred and
     the second altercation was initiated by D.E. Specifically, the Union believed both students had
     been disciplined for lying and that D.E. had a history of violence and was expelled following
     Cooper’s termination as a result of a fight with school staff.
¶4       After exhausting the initial steps of the grievance procedure outlined in the parties’
     collective bargaining agreement (CBA), the Union proceeded to arbitration. In preparation for
     the arbitration, the Union propounded document requests on the Board in September 2010. The
     Board turned over most of the requested records, but declined to produce the disciplinary
     records of D.E. and R.G. on the grounds that the records were confidential. In response, the
     Union indicated its willingness to accept redacted files omitting the students’ surnames. The
     Union also assured the Board that the documents would remain confidential pursuant to
     section 3-5.3 of the CBA, which requires all grievances to be processed confidentially.
¶5       When the Board still declined to turn over the records, the Union moved before the
     arbitrator for execution of a subpoena duces tecum for the disciplinary files of the two students.
     In its motion for execution of the subpoena, the Union stated it would accept versions of the
     records referring to the students only by their initials. On February 18, 2011, the arbitrator
     executed the subpoena, but the Board persisted in its refusal to provide the documents.
     However, the Board indicated that it would comply if an order was issued by a court.
¶6       The Union declined to seek an order from the court and instead filed an unfair labor
     practice charge against the Board on March 18, 2011. The Union also went forward with the
     arbitration on April 4, 2011, and on May 11, 2011, the arbitrator ordered that Cooper be
     reinstated.
¶7       In its charge of unfair labor practices, the Union alleged that the Board’s decision to
     withhold the students’ records violated section 14(a)(5) of the Illinois Educational Labor
     Relations Act (115 ILCS 5/14(a)(5) (West 2010)) (the Labor Relations Act), which requires an
     employer to bargain collectively in good faith with an employee representative. In its answer to
     the charge, the Board argued that under the Student Records Act it was prohibited from
     releasing student disciplinary records without a court order. The Board further argued that the
     controversy was moot in light of the arbitrator’s decision reinstating Cooper. The parties
     agreed to proceed on a stipulated record in lieu of a hearing and submitted posthearing briefs to
     the administrative law judge (ALJ). After finding no issues of fact, the ALJ referred the case to
     the IELRB for decision.
¶8       The IELRB determined that the Board’s confidentiality concerns were mitigated in light of
     the Union’s agreement to accept redacted records and keep the contents of those records
     confidential. Accordingly, the IELRB found that the Board committed an unfair labor practice
     and ordered the Board to turn over D.E. and R.G.’s records to the Union and to post a notice to
     employees informing them of their rights. In addition, the IELRB found that the matter was not
     moot, citing Grand Rapids Press, 331 N.L.R.B. 296, 300 (2000), where the National Labor
     Relations Board held that an evaluation of a union’s right to requested information must be
     based on the situation which existed at the time the request was made, rather than the situation
     which exists at the time that right is vindicated.

                                                 -3-
¶9        The Board filed a timely petition for review of the order. The Chicago Teachers Union was
       permitted to file an amicus curiae brief in support of the IELRB and the Union.

¶ 10                                           ANALYSIS
¶ 11        The overarching issue on appeal is whether student disciplinary records are protected from
       disclosure under the Student Records Act during grievance proceedings before the IELRB. 1
       Resolution of this question necessarily requires interpretation of the Student Records Act.
       Ordinarily, such questions of law are subject to de novo review. City of Belvidere v. Illinois
       State Labor Relations Board, 181 Ill. 2d 191, 204-05 (1998); see also County of Du Page v.
       Illinois Labor Relations Board, 231 Ill. 2d 593, 603 (2008) (statutory interpretation subject to
       de novo review). However, both the IELRB and the Union (collectively, respondents) argue
       that a more deferential standard of review is appropriate.
¶ 12        To begin, the IELRB contends that its decision is entitled to “substantial deference” where
       it interprets ambiguous statutes that it is tasked with administering and enforcing. But these are
       not the circumstances presented here. This case does not involve construction of the Labor
       Relations Act, which we can reasonably conclude the IELRB is responsible for enforcing, but
       the Student Records Act, which is enforced by the Illinois State Board of Education (105 ILCS
       10/3(a) (West 2010)). As such, this case is distinguishable from County of Du Page, where the
       supreme court deferred to the Illinois Labor Relation Board’s (ILRB) interpretation of section
       9(a-5) of the Illinois Public Labor Relations Act (5 ILCS 315/9(a-5) (West 2004)), which the
       ILRB was charged with administering. County of Du Page, 231 Ill. 2d at 608-09.
¶ 13        The argument advanced by the Union is no more persuasive. The Union cites several cases
       in which a reviewing court applied a clearly erroneous standard of review to a decision of the
       IELRB (see, e.g., Speed District 802 v. Warning, 242 Ill. 2d 92, 110-11 (2011); Board of
       Education v. Sered, 366 Ill. App. 3d 330, 336 (2006); Chicago School Reform Board of
       Trustees v. Illinois Educational Labor Relations Board, 315 Ill. App. 3d 522, 528 (2000)), but
       none of these cases involved an affirmative defense to compliance with the Labor Relations
       Act based on the operation of a separate statute. For example, in Chicago School Reform Board
       of Trustees, the board refused to turn over certain documents to the union on the basis that
       these documents were not relevant to the union’s performance of its responsibilities to bargain
       and administer the parties’ collective bargaining agreement. Chicago School Reform Board of
       Trustees, 315 Ill. App. 3d at 528-29. Thus, the only issue was the relevance of the undisclosed
       documents, a mixed question of law and fact subject to the clearly erroneous standard of
       review. Id. at 528.
¶ 14        In contrast, here, the Board does not dispute that the student disciplinary records were
       relevant to the grievance proceedings. Rather, the Board’s argument turns on whether the
       Student Records Act prohibits disclosure of the records notwithstanding their relevancy. This
       is a pure question of law subject to de novo review. See City of Belvidere, 181 Ill. 2d at 204-05.
¶ 15        Before turning to an examination of whether the provisions of the Student Records Act
       operate to bar disclosure of student records in this case, it is helpful to begin by setting forth the
           1
            On appeal, the Board abandons its contention that this issue is moot.
                                                      -4-
       basis of an educational employer’s general duty to disclose information to a bargaining unit.
       This duty stems from section 14(a)(5) of the Labor Relations Act, which reads, in relevant part:
                    “(a) Educational employers, their agents or representatives are prohibited from:
                                                   ***
                        (5) Refusing to bargain collectively in good faith with an employee
                    representative which is the exclusive representative of employees in an appropriate
                    unit, including but not limited to the discussing of grievances with the exclusive
                    representative ***.” 115 ILCS 5/14(a)(5) (West 2010).
       Bargaining in good faith includes an obligation on the part of the employer to provide the
       union with information upon request. Chicago School Reform Board of Trustees, 315 Ill. App.
       3d at 528 (citing National Labor Relations Board v. Acme Industrial Co., 385 U.S. 432, 435-36
       (1967) (“[t]here can be no question of the general obligation of an employer to provide
       information that is needed by the bargaining representative for the proper performance of its
       duties”)).
¶ 16       However, this duty to provide information is not absolute. The information must be
       relevant to the proceedings and reasonably necessary to the union’s performance of its
       responsibilities. Allied Mechanical Services, Inc., 332 N.L.R.B. 1600 (2001); 2 see also
       Chicago School Reform Board of Trustees, 315 Ill. App. 3d at 529. Relevancy is determined
       pursuant to a broad, discovery-based standard. Dupo Federation of Teachers, Local 1732, 13
       PERI ¶ 1044 (IELRB 1997). 3 That is, information is relevant if it “would be of use to the union
       in carrying out its statutory duties and responsibilities.” Acme Industrial, 385 U.S. at 437.
¶ 17       Moreover, as the IELRB acknowledges, even relevant information may be withheld where
       an employer asserts an affirmative defense to production, such as confidentiality concerns or
       the need for employee privacy. See Detroit Edison Co. v. National Labor Relations Board, 440
       U.S. 301, 314-15 (1979). While employers’ assertions of such defenses have not always met
       with success (see, e.g., Alton Education Ass’n, 21 PERI ¶ 79 (IELRB 2005); Chicago Fire
       Fighters Union, Local 2, 12 PERI ¶ 3015 (ILLRB 1996)), no Illinois court has evaluated the
       merits of a statutory defense to production in a published decision. Thus, the scenario
       presented in this case is one of first impression.
¶ 18       Initially, the parties dispute whether the disciplinary files of D.E. and R.G. are student
       records within the meaning of the Student Records Act, which defines “school student record”
       as “any writing or other recorded information concerning a student and by which a student may

           2
           Rulings of the NLRB and federal courts construing labor relations acts are persuasive authority
       when analyzing similar provisions in Illinois acts. See American Federation of State, County &
       Municipal Employees v. Illinois State Labor Relations Board, 190 Ill. App. 3d 259, 264 (1989).

           3
            While decisions of the IELRB have no precedential value, they are instructive on certain issues.
       See, e.g., Chicago School Reform Board of Trustees, 315 Ill. App. 3d at 529 n.3; see also Central
       Community Unit School District No. 4 v. Illinois Educational Labor Relations Board, 388 Ill. App. 3d
       1060, 1066 (2009) (citing IELRB decision for factors to consider when determining when an arbitration
       award is binding).
                                                     -5-
       be individually identified, maintained by a school or at its direction or by an employee of a
       school.” 105 ILCS 10/2(d) (West 2010). Respondents contend that the Union’s willingness to
       accept redacted version of the records with the students named only by their initials renders the
       students unable to be individually identified and removes their records from the protection of
       the Student Records Act. We disagree.
¶ 19       In support of their argument, respondents cite to cases holding that “masked” student
       records do not fall within the Student Records Act’s scope. 4 See, e.g., Bowie v. Evanston
       Community Consolidated School District No. 65, 128 Ill. 2d 373, 379 (1989); Human Rights
       Authority of the State of Illinois Guardianship & Advocacy Comm’n v. Miller, 124 Ill. App. 3d
       701, 704 (1984). A “masked” record is one where any information identifying a student has
       been deleted and the record is released for the purpose of research, statistical reporting, or
       planning. Garlick v. Oak Park & River Forest High School District No. 200, 389 Ill. App. 3d
       306, 312-13 (2009) (citing Bowie, 128 Ill. 2d at 379, and Miller, 124 Ill. App. 3d at 704).
¶ 20       In both Bowie and Miller, the petitioners sought the records of a large group of students.
       Bowie, 128 Ill. 2d at 376 (seeking release of 1982-1986 California Achievement Test scores
       for students in grades 2, 3, 5, 6, and 8 from 12 schools within the district); Miller, 124 Ill. App.
       3d at 702 (seeking release of school district’s disabled students’ educational program records).
       Neither the Bowie nor the Miller petitioners were concerned with the record of any individual
       student, but with the records in the aggregate. Additionally, the purpose of the petitioners’
       request was to investigate and conduct research. In Miller, for example, the Human Rights
       Authority requested the educational program records in response to a complaint that the
       Galesburg School District was not providing state-mandated occupational and physical
       therapy for its students. Miller, 124 Ill. App. 3d at 702.
¶ 21       Here, in contrast, the Union did not seek the release of disciplinary records in the aggregate
       for purposes of research or investigation. Rather, the Union sought the records of two specific
       students for the purpose of discovering their individual disciplinary history. The only way in
       which the two sets of records would have been useful to the Union is if they could both be
       linked to a student involved in the alleged altercations with Cooper. For these reasons, the mere
       redaction of the students’ surnames or reference to the students by their initials does not render
       the records “masked” as that term has been defined in Garlick. Accordingly, we find that the
       disciplinary records sought by the Union are “school student records” pursuant to section 2(d)
       of the Student Records Act.


           4
            The Union also cites cases from foreign jurisdictions holding that redacted disciplinary records do
       not fall within the ambit of the Family Educational Rights and Privacy Act, which limits the release of
       “information directly related to a student.” 20 U.S.C. § 1232g(4)(A)(i) (2006); see Board of Trustees,
       Cut Bank Public Schools v. Cut Bank Pioneer Press, 160 P.3d 482, 488 (Mont. 2007); State ex rel. The
       Miami Student v. Miami University, 680 N.E.2d 956, 959 (Ohio 1997). We do not find these cases
       persuasive where there is Illinois authority interpreting the specific language of the Student Records
       Act that is at issue in this case. See Allstate Insurance Co. v. Lane, 345 Ill. App. 3d 547, 552 (2003)
       (“[o]nly in the absence of Illinois authority on the point of law in question are we to look to other
       jurisdictions for persuasive authority”).
                                                      -6-
¶ 22        It is undisputed that the Student Records Act prohibits the release, transfer, disclosure or
       dissemination of school student records except under certain circumstances. 105 ILCS 10/6
       (West 2010). Respondents suggest that this prohibition gives rise to a conflict with the Labor
       Relations Act, which, as discussed supra, generally requires an educational employer to
       provide a bargaining representative with relevant information upon request. As a means of
       resolving this conflict, respondents point to section 17 of the Labor Relations Act, which
       provides: “In case of any conflict between the provisions of this Act and any other law,
       executive order or administrative regulation, the provisions of this Act shall prevail and
       control.” 115 ILCS 5/17 (West 2010). Respondents contend that this section operates to allow
       release of the records notwithstanding the Student Record Act’s provisions limiting their
       release. But this argument begins from a false premise, namely, that the Labor Relations Act
       and the Student Records Act are in conflict. We agree with the Board that no conflict exists.
¶ 23        Significantly, the Student Records Act does not categorically prohibit the release of school
       student records. Rather, the Student Records Act allows release of records in certain
       circumstances, including pursuant to a court order. 105 ILCS 10/6(a)(5) (West 2010). It is this
       exception that a union may invoke when seeking disclosure. Specifically, if after receiving a
       subpoena issued by an arbitrator, a school board refuses to turn over student records, a union
       may apply to the court to have the subpoena enforced. 710 ILCS 5/7(a) (West 2010). In this
       way, the interests of an educational employer in protecting the confidentiality of sensitive
       student records are neatly balanced with the interests of a bargaining representative in
       obtaining all relevant information to perform its duties: neither must give way to the other.
¶ 24        Respondents and amicus argue against this result, contending that section 6(a)(6) of the
       Student Records Act permits disclosure in the absence of a court order. This section allows
       release of school student records “[t]o any person as specifically required by State or federal
       law.” 105 ILCS 10/6(a)(6) (West 2010). According to respondents and amicus, the state law
       “specifically” requiring disclosure is the Labor Relations Act, which requires educational
       employers to bargain in good faith with employee representatives. 115 ILCS 5/14(a)(5) (West
       2010). We do not agree that this state law is sufficiently specific so as to require disclosure of
       student records under the Student Records Act.
¶ 25        Aufox v. Board of Education of Township High School District No. 113, 225 Ill. App. 3d
       444 (1992), is instructive in this regard. There, petitioners challenged the release to the circuit
       court of the hearing officer’s finding approving the school district’s placement of their son.
       Aufox, 225 Ill. App. 3d at 446-47. The parties agreed that the findings of the hearing officer
       were a school student record under the Student Records Act (and thus subject to disclosure
       only under certain limited circumstances), but the school board argued that release was
       required by section 14-8.02(j) of the School Code (Ill. Rev. Stat. 1989, ch. 122, ¶ 14-8.02(j)).
       Aufox, 225 Ill. App. 3d at 448-49. Section 14-8.02(j) provided that where a party files an action
       in circuit court challenging the decision in a hearing “ ‘The court shall receive the records of
       the administrative proceedings.’ ” Id. at 449 (quoting Ill. Rev. Stat. 1989, ch. 122,
       ¶ 14-8.02(j)). The court in Aufox concluded that “shall” represented a mandatory obligation,
       and thus agreed with the school board that section 6(a)(6) of the Student Records Act allowed
       it to release the findings of the hearing officer. Id.
                                                    -7-
¶ 26       Here, the state law at issue is not nearly so specific. Significantly, section 14(a)(5) of the
       Labor Relations Act does not expressly order disclosure of records. Instead, that requirement is
       derived from case law, which, unlike the School Code discussed in Aufox, does not impose an
       unconditional and mandatory obligation on an employer to turn over a specific category of
       documents to a union upon request. Rather, the duty to disclose is limited to relevant
       documents that would assist the union in the performance of its collective bargaining
       responsibilities. In addition, the duty may be circumscribed by any bona fide confidentiality
       concerns articulated by the employer. Because this is far from a specific requirement for an
       employer to turn over student records to a bargaining unit, we conclude that section 6(a)(6)
       does not permit disclosure here.
¶ 27       Respondents and amicus suggest that the union’s agreement to accept redacted records and
       to hold them in confidence alleviates any concern the Board may assert in releasing them. But
       these parties do not address the right afforded parents under the Student Records Act to prior
       notice and the opportunity to challenge the release of student records. 105 ILCS 10/6, 7 (West
       2010). While the union and the Board could agree on procedures for the release and handling
       of student records relevant to grievance proceedings, they cannot by agreement abrogate the
       statutory right of parents to challenge, prior to their release, the “accuracy, relevance or
       propriety of any entry in the school student records.” 105 ILCS 10/7 (West 2010). We see no
       basis upon which to conclude that the union’s need for student records, under any and all
       circumstances, takes precedence over the right of parents to notice and the opportunity to
       challenge the release of their child’s records.
¶ 28       Amicus, citing timeliness concerns stemming from requiring parties to proceed to court for
       enforcement of an arbitral subpoena, then urges us to find, in the alternative, that a subpoena
       issued by an arbitrator is tantamount to a “court order” for purposes of section 6(a)(5) of the
       Student Records Act. However, the language of the Uniform Arbitration Act (710 ILCS 5/1
       et seq. (West 2010)) (the Arbitration Act) points us to the opposite conclusion. 5
¶ 29       To be sure, arbitrations are quasi-judicial in nature. Bushell v. Caterpillar, Inc., 291 Ill.
       App. 3d 559, 563 (1997). Indeed, section 7(a) of the Arbitration Act allows arbitrators to issue
       subpoenas for the attendance of witnesses and the production of documents, much the way a
       court does. 710 ILCS 5/7(a) (West 2010). However, that section goes on to state that parties
       may apply to a court for enforcement of a subpoena so issued “in the manner provided by law
       for the service and enforcement of subpoenas in civil cases.” Id. This language suggests that
       notwithstanding their quasi-judicial powers, arbitrators must ultimately turn to courts to
       achieve compliance with certain orders. In other words, arbitral subpoenas themselves are not
       court orders. Were we to hold otherwise, we would effectively nullify the enforcement
       language of section 7(a), a result that is at odds with one of the cardinal principles of statutory
       construction–that statutes should be construed so as to render no language or portion
       meaningless. See Blum v. Koster, 235 Ill. 2d 21, 29 (2009). Simply stated, if the legislature
       intended that arbitral subpoenas should be treated as court orders, it would not have been

           5
           The Arbitration Act governed the arbitration between the Union and the Board given that there
       was no agreement to the contrary. See Bushell v. Caterpillar, Inc., 291 Ill. App. 3d 559, 563 (1997).
                                                     -8-
       necessary to specify that parties could apply to a court for their enforcement. For these reasons,
       we decline to accept amicus’s position equating arbitral subpoenas with court orders for
       purposes of section 6(a)(5) of the Student Records Act.
¶ 30        In reaching this conclusion, we are not unmindful of the delays that may ensue as a result of
       proceeding with an enforcement action in the circuit court. See North Shore Sanitary District
       v. Illinois State Labor Relations Board, 262 Ill. App. 3d 279, 285 (1994) (proceedings before
       hearing officer delayed over one year while ILRB awaited outcome of administrative
       subpoena enforcement action); Vaughn, 6 PERI ¶ 2021 n.2 (ISLRB 1990) (same). However,
       we believe that such lengthy delays are the exception rather than the rule. Where, as here, there
       is no dispute as to the documents’ relevance to the proceedings, the enforcement action can be
       resolved expeditiously. 6
¶ 31        Finally, because we agree with the Board’s contention that section 6 of the Student Records
       Act bars disclosure of student disciplinary records without a court order, we need not consider
       whether the Family Educational Rights and Privacy Act also prohibits disclosure.

¶ 32                                       CONCLUSION
¶ 33       For the reasons stated, we reverse the decision of the IELRB.

¶ 34       Reversed.




           6
            If relevance is at issue, then delay would result irrespective of the avenue the union pursues to
       obtain records.
                                                     -9-
