                                     2015 IL 118043



                                        IN THE
                               SUPREME COURT
                                           OF
                         THE STATE OF ILLINOIS



                           (Docket Nos. 118043, 118072 cons.)

        THE BOARD OF EDUCATION OF THE CITY OF CHICAGO, Appellee,
        v. THE ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD et al.,
                                Appellants.


                             Opinion filed December 17, 2015.



        JUSTICE FREEMAN delivered the judgment of the court, with opinion.

        Chief Justice Garman and Justices Thomas, Karmeier, Burke, and Theis
     concurred in the judgment and opinion.

        Justice Kilbride dissented, with opinion.



                                        OPINION

¶1       The Chicago Teachers Union, Local 1, IFT-AFT, AFL-CIO (Union) filed an
     unfair labor practice charge with the Illinois Educational Labor Relations Board
     (IELRB) against the Board of Education of the City of Chicago (Board). The Union
     alleged that the Board violated section 14(a)(1) of the Illinois Educational Labor
     Relations Act (Act) (115 ILCS 5/14(a)(1) (West 2010)) by refusing to arbitrate
     grievances. The IELRB found that the Board had violated the Act. On direct
     administrative review, a divided panel of the appellate court reversed the IELRB’s
     decision. 2014 IL App (1st) 130285.
¶2       This court allowed the Union’s and the IELRB’s separate petitions for leave to
     appeal (Ill. S. Ct. R. 315 (eff. Jan. 1, 2015)), and consolidated the causes for review.
     We now affirm the judgment of the appellate court, and remand to the IELRB for
     further proceedings.



¶3                                    I. BACKGROUND

¶4       The appellate court adequately recited the stipulated facts. We need not repeat
     those details here. As defined in the Act, the Board is an educational employer (115
     ILCS 5/2(a) (West 2010)), and the Union is an employee organization (115 ILCS
     5/2(c) (West 2010)) that is an exclusive representative (115 ILCS 5/2(d) (West
     2010)) of a bargaining unit of the Board’s employees that includes teachers. The
     Board and the Union were parties to a collective bargaining agreement (CBA) in
     effect from 2007 to 2012. The CBA established a grievance procedure that
     culminated in final and binding arbitration.

¶5       In June 2010, the Board notified the Union of a new policy. The Board was
     going to designate as ineligible for rehire nonrenewed probationary appointed
     teachers (PATs) who have been nonrenewed twice, or who have been given an
     unsatisfactory performance rating. At the end of the 2009-10 school year, the Board
     began implementing this policy by placing in the personnel files of such PATs a
     “Do Not Hire” (DNH) designation.

¶6       The Union timely presented to the Board four grievances and demanded
     arbitration. Three of the grievances were on behalf of individual PATs and one was
     on behalf of all PATs. The Board had notified all of the individual PATs that they
     were being nonrenewed with the Chicago Public Schools for the following school
     year, but did not inform them that it had placed a DNH designation in their
     personnel files. The grievances alleged that the Board’s DNH policy violated
     various sections of the CBA.

¶7       In the individual grievances, the Union requested the Board, respectively, to
     restore two grievants to their teaching positions at particular schools, and to allow
     the third grievant to seek a Chicago Public Schools position for which she qualifies.
     In the collective grievance, the Union requested that the Board: cease the practice
     of placing DNH designations in union members’ files if the terminations were not
     for cause; remove union members from the DNH list; notify all union members in

                                              -2-
       writing who have received a DNH designation; give the Union a list of all Union
       members on the DNH list; allow all Union members to seek employment within the
       Chicago Public Schools; and “[d]iscuss any and all changes that affect the working
       conditions and employment status” of union members with the Union.

¶8         The Board notified the Union that it refused to arbitrate the grievances, which
       the Board viewed as an attempt by the Union to require the Board to hire persons
       whom the Board did not believe it should hire. The Board claimed that the subject
       matter of the grievances was excluded from arbitration because Board hiring
       decisions were exclusive management rights.

¶9         The Union filed an unfair labor practice charge with the IELRB against the
       Board. The Union alleged that the Board violated section 14(a)(1) of the Act by
       refusing to arbitrate the grievances. The executive director of the IELRB
       investigated the Union’s charge and issued a complaint. See 115 ILCS 5/15 (West
       2010). In lieu of a hearing before an administrative law judge (ALJ), the parties
       filed a stipulated record. An ALJ ordered that the case be removed to the IELRB
       based on her certification that there were no determinative issues of fact requiring
       an ALJ’s recommended decision. In a written opinion and order, the IELRB found
       that, pursuant to the Act and the CBA, the Board had a duty, upon the Union’s
       request, to arbitrate the DNH grievances and, by refusing to do so, the Board
       violated section 14(a)(1) of the Act. The IELRB ordered the Board to arbitrate the
       grievances and to grant other relief requested by the Union.

¶ 10       On direct administrative review, a divided panel of the appellate court reversed
       the IELRB’s decision. 2014 IL App (1st) 130285. Reviewing the IELRB’s decision
       de novo, the appellate court concluded that the Board was contractually and
       statutorily not obligated to arbitrate the grievances and, therefore, held that the
       IELRB erred in finding that the Board violated section 14(a)(1) of the Act. Id. ¶ 44.
       The dissenting justice would have confirmed the IELRB’s decision, concluding
       that the grievances were arbitrable. Id. ¶ 69 (Gordon, P.J., dissenting). The Union
       and the IELRB each appeals to this court.



¶ 11                                     II. ANALYSIS

¶ 12      Before this court, the Union and the IELRB contend that the Board is obligated
       under the CBA to arbitrate the grievances. The Board contends that it has a

                                               -3-
       managerial right over hiring decisions that is contractually and statutorily excluded
       from arbitration.



¶ 13                                  A. Standard of Review

¶ 14       At the outset, the parties disagree on the appropriate standard of review. On
       administrative review, our role is to review the decision of the administrative
       agency, here the IELRB, and not the determination of the appellate court. See Wade
       v. City of North Chicago Police Pension Board, 226 Ill. 2d 485, 504 (2007). The
       Act provides that a final order of the Board is subject to judicial review pursuant to
       the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2010)), taken
       directly to the appellate court. 115 ILCS 5/16(a) (West 2010). Under the
       Administrative Review Law, the scope of judicial review extends to all questions of
       law and fact presented by the record before the court. 735 ILCS 5/3-110 (West
       2010). The applicable standard of review, which determines the degree of
       deference given to the agency’s decision, depends on whether the issue presented is
       a question of law, fact, or a mixed question of law and fact. AFM Messenger
       Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 390 (2001).

¶ 15       An agency’s conclusion on a question of law is reviewed de novo. A reviewing
       court is not bound by an agency’s interpretation of a statute. Cinkus v. Village of
       Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 210-11 (2008).
       However, the agency’s interpretation remains relevant where there is a reasonable
       debate about the meaning of the statute. Harrisonville Telephone Co. v. Illinois
       Commerce Comm’n, 212 Ill. 2d 237, 247 (2004). In contrast, “The findings and
       conclusions of the administrative agency on questions of fact shall be held to be
       prima facie true and correct.” 735 ILCS 5/3-110 (West 2010). Accordingly, when a
       court reviews an agency’s factual findings, the court will not reweigh the evidence,
       or substitute its judgment for that of the agency. Rather, the court simply
       determines whether the findings of fact are against the manifest weight of the
       evidence. American Federation of State, County & Municipal Employees, Council
       31 v. Illinois State Labor Relations Board, State Panel, 216 Ill. 2d 569, 577 (2005).

¶ 16       A mixed question of law and fact asks the legal effect of a given set of facts. In
       resolving a mixed question of law and fact, a reviewing court must determine
       whether established facts satisfy applicable legal rules. An agency’s conclusion on
       a mixed question of law and fact is reviewed for clear error. A decision is “clearly
                                               -4-
       erroneous” when the reviewing court is left with the definite and firm conviction
       that a mistake has been committed. AFM Messenger, 198 Ill. 2d at 391-95.

¶ 17       Before this court, the Union and the Board agree that the appropriate standard
       of review is de novo because there are no determinative issues of fact and the
       IELRB only considered legal issues. For this reason, the appellate court reviewed
       the IELRB’s decision de novo. 2014 IL App (1st) 130285, ¶ 19. However, the
       IELRB contends that the clearly erroneous standard of review is appropriate
       because this case presents mixed questions of law and fact.

¶ 18        We agree with the IELRB that the clearly erroneous standard of review is
       appropriate. The written order of the ALJ found that there were no questions of
       fact, and the IELRB decided the Union’s complaint solely on the legal issues
       presented. However, mixed questions of fact and law are “ ‘questions in which the
       historical facts are admitted or established, the rule of law is undisputed, and the
       issue is whether the facts satisfy the statutory standard, or to put it another way,
       whether the rule of law as applied to the established facts is or is not violated.’ ”
       American Federation of State, County & Municipal Employees, 216 Ill. 2d at 577
       (quoting Pullman-Standard v. Swint, 456 U.S. 273, 289 n.19 (1982)). Review for
       clear error is significantly deferential to an agency’s experience in construing and
       applying the statute that it administers. AFM Messenger, 198 Ill. 2d at 393-95. This
       court has recognized that “[d]etermination of whether specific issues are
       mandatorily bargainable or not is best left to the IELRB, which has the knowledge
       and experience to balance the equities in a given case. However, our legislature has
       placed guidelines in the Act as to what should, and should not be bargained.”
       Central City Education Ass’n v. Illinois Educational Labor Relations Board, 149
       Ill. 2d 496, 522 (1992). The main issue on review from the IELRB involves the
       application of the correct statutory interpretation of the Act to the facts.
       Accordingly, we apply the clearly erroneous standard of review. See City of
       Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 205 (1998);
       Chicago Teachers Union v. Illinois Educational Labor Relations Board, 334 Ill.
       App. 3d 936, 942 (2002).



¶ 19                              B. Arbitrability of Grievances

¶ 20       Under section 14(a)(1) of the Act, “Educational employers, their agents or
       representatives are prohibited from *** [i]nterfering, restraining or coercing
                                               -5-
       employees in the exercise of the rights guaranteed under this Act.” 115 ILCS
       5/14(a)(1) (West 2010). A school district’s refusal to submit an employee
       grievance to binding arbitration under a collective bargaining agreement is a
       violation of section 14(a)(1) of the Act. Cobden Unit School District No. 17 v.
       Illinois Educational Labor Relations Board, 2012 IL App (1st) 101716, ¶ 19;
       Granite City Community Unit School District No. 9 v. Illinois Educational Labor
       Relations Board, 279 Ill. App. 3d 439, 442 (1996); Board of Trustees, Prairie State
       College v. Illinois Educational Labor Relations Board, 173 Ill. App. 3d 395, 409
       (1988). However, refusal to arbitrate is an appropriate method to challenge the
       issue of arbitrability. See Board of Education of Community School District No. 1,
       Coles County v. Compton, 123 Ill. 2d 216, 225-26 (1988); Niles Township High
       School District 219 v. Illinois Educational Labor Relations Board, 379 Ill. App. 3d
       22, 24 (2007). A school district may refuse to arbitrate a grievance where: (1) there
       is no contractual agreement to arbitrate the substance of the dispute; or (2) the
       dispute is not arbitrable under section 10(b) of the Act (115 ILCS 5/10(b) (West
       2010)) because the subject matter of the dispute conflicts with Illinois law. Cobden
       Unit School District, 2012 IL App (1st) 101716, ¶ 19; Niles Township, 379 Ill. App.
       3d at 24.

¶ 21       The Board’s position throughout these proceedings is that the decision to
       designate PATs as ineligible for rehire is a matter of inherent managerial policy for
       the selection of new employees. The Board contends that it did not contractually
       limit this authority and, further, that this authority is statutorily excluded from
       arbitration.

¶ 22       We first consider whether there was a contractual agreement to arbitrate the
       instant grievances concerning the DNH designations. In determining whether a
       school district is required to arbitrate a grievance, the mere existence of the dispute
       between the employer and the employee does not make the disputed matter subject
       to arbitration under a collective bargaining agreement. Rather, the IELRB must
       examine whether the grievance falls within the terms of the collective bargaining
       agreement. Cobden Unit School District, 2012 IL App (1st) 101716, ¶ 19.

¶ 23       In the case at bar, article 3 of the CBA provides the following definition: “A
       grievance is a complaint involving a work situation; a complaint that there has been
       a deviation from, misinterpretation of or misapplication of a practice or policy; or a
       complaint that there has been a violation, misinterpretation or misapplication of
       any provisions of this Agreement.” As part of the grievance procedure, article 3-5
                                                -6-
       provides for binding arbitration. Further, article 34-4, concerning personnel files,
       provides as follows:

              “No derogatory statement about a teacher or other bargaining unit member
          originating outside of the Chicago public school system shall be placed in the
          teacher’s or other bargaining unit member’s personnel file, provided, further,
          that any official report or statement originating within the Chicago public
          school system may be placed in the teacher’s or other bargaining unit member’s
          personnel file only if the [person] is sent a dated copy thereof at the same time.
          The [person] may respond and such response shall be attached to the filed
          copy.”

       Further, article 48-2 of the CBA provides in pertinent part:

              “The BOARD shall not be required to bargain over matters of inherent
          managerial policy within the meaning of the [Act] or Illinois School Code,
          which shall include such areas of discretion or policy as the functions of the
          BOARD, standards of service, its overall budget, the organizational structure
          and selection of new employees and direction of employees ***. The BOARD,
          however, shall be required to bargain collectively with the UNION with regard
          to policy matters directly affecting wages, hours and terms and conditions of
          employment as well as the impact thereon upon request by the UNION.”

¶ 24       The IELRB found that “there is no express language excluding this matter from
       arbitration.” The IELRB determined that the DNH grievances were not
       contractually precluded from arbitration “[i]n light of the broad language in the
       grievance clause and the lack of exclusions from arbitration.” The agency viewed
       the management rights language in article 48-2 as pertaining to the Board’s
       “bargaining power, not arbitration.”

¶ 25       The IELRB misconstrued the CBA. Pursuant to the Act, binding arbitration is a
       mandatory component in all collective bargaining agreements. 115 ILCS 5/10(c)
       (West 2010); see Compton, 123 Ill. 2d at 222-23. This court has repeatedly
       observed that employers have the right to refuse to bargain over “matters of
       inherent managerial policy.” However, employers must bargain over “wages, hours
       and other terms and conditions of employment.” 115 ILCS 5/4, 10(a) (West 2010);
       Central City, 149 Ill. 2d at 522; Compton, 123 Ill. 2d at 220.



                                               -7-
¶ 26        In Central City, this court established a three-part test to determine whether a
       matter is subject to mandatory bargaining. First, is the matter one of “wages, hours
       and terms and conditions of employment?” “If the answer to this question is no, the
       inquiry ends and the employer is under no duty to bargain.” Central City, 149 Ill. 2d
       at 523. A term and condition of employment is something that an employer
       provides which intimately and directly affects the work and welfare of the
       employees. In addition to wages and hours, typical terms and conditions include
       health insurance and pension contributions. Vienna School District No. 55 v.
       Illinois Educational Labor Relations Board, 162 Ill. App. 3d 503, 507 (1987).

¶ 27       In the case bar, we agree with the appellate court that the DNH grievances do
       not relate to terms and conditions of employment, but rather to the Board’s ability
       to initiate employment, which is a matter of managerial policy. 2014 IL App (1st)
       130285, ¶ 28. Although the CBA broadly defines a grievance, that broad definition
       does not, and as will be shown, cannot, pertain to the matters excluded from the
       bargaining process under the CBA, including the Board’s ability to make hiring
       decisions.

¶ 28       Even if some provision in the CBA could be read to require that the DNH
       grievances be arbitrated, section 10(b) of the Act (115 ILCS 5/10(b) (West 2010))
       would prohibit its enforcement because implementing the provision would violate
       or conflict with Illinois law. That section provides:

               “(b) The parties to the collective bargaining process shall not effect or
          implement a provision in a collective bargaining agreement if the
          implementation of that provision would be in violation of, or inconsistent with,
          or in conflict with any statute or statutes enacted by the General Assembly of
          Illinois.” 115 ILCS 5/10(b) (West 2010).

       In turn, section 4 of the Act provides in pertinent part:

          “Employers shall not be required to bargain over matters of inherent managerial
          policy, which shall include such areas of discretion or policy as the functions of
          the employer, standards of service, its overall budget, the organizational
          structure and selection of new employees and direction of employees.” 115
          ILCS 5/4 (West 2010).

       The instant DNH grievances are inarbitrable because their arbitration would
       conflict with section 4 of the Act.

                                                -8-
¶ 29       The arbitration of these grievances would also conflict with several sections of
       the School Code. “[A] school board has only those powers expressly conferred
       upon it by the General Assembly and those that are necessary to carry into effect the
       powers granted by the legislature.” Spinelli v. Immanuel Lutheran Evangelical
       Congregation, Inc., 118 Ill. 2d 389, 403 (1987) (citing Wesclin Education Ass’n v.
       Board of Education of Wesclin Community Unit School District, 30 Ill. App. 3d 67,
       75 (1975)). Section 34-84 mandates that the Board shall appoint teachers “for merit
       only, and after satisfactory service for a probationary period of 3 years.” 105 ILCS
       5/34-84 (West 2010). Also, section 10-22.4 of the Illinois School Code, which
       authorizes a school district to dismiss a teacher “whenever, in its opinion, he is not
       qualified to teach, or whenever, in its opinion, the interests of the schools require it,
       subject, however, to the provisions of Sections 24-10 to 24-15, inclusive.” 105
       ILCS 5/10-22.4 (West 2010). This provision includes the power to terminate the
       employment of probationary teachers by the nonrenewal of their teachers’
       contracts. This discretionary power may not be delegated to an arbitrator, or limited
       by a collective bargaining agreement. 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); Wesclin, 30 Ill. App. 3d at 75-76.
       Thus, probationary teachers have no specific right to be retained by a school board.
       Rather, a school board may, subject to the provisions of the School Code, retain or
       dismiss probationary teachers entirely in its discretion. “In this situation, the
       probationary teacher is not discharged or dismissed so much as she is not asked to
       enter into continued contractual service.” Lockport Area Special Education
       Cooperative v. Lockport Area Special Education Cooperative Ass’n, 33 Ill. App. 3d
       789, 794 (1975). The school board may not delegate this power by agreeing to
       dismiss teachers only for just cause, or agreeing to submit to binding arbitration
       whether or not there is just cause. “The Board may only agree to follow certain
       procedures before making a determination, which only the Board can make.” Id.;
       accord Cobden Unit School District, 2012 IL App (1st) 101716, ¶ 21. 1

¶ 30       The instant DNH grievances attempt to force the Board to hire probationary
       teachers. As the appellate court observed, the relief that the Union sought from the
       Board included reinstating grievants to their particular jobs, or allowing grievants
       to seek employment within the Chicago Public School system. 2014 IL App (1st)

           1
             The Union contends that the Board’s failure to refer to the School Code before the IELRB
       precludes reference to it on administrative review. We disagree. Article 48-2 of the CBA and section
       4 of the Act provide for the same management rights as these sections of the School Code.

                                                      -9-
       130285, ¶ 28. The grievances therefore conflict with the Board’s statutory authority
       to refuse to rehire probationary teachers, and the Board was not required to arbitrate
       them pursuant to section 10(b) of the Act. See id. ¶¶ 34-36.

¶ 31       PATs are employed for a single school-year term, and the Board alone is vested
       with the selection of such employees as a matter of inherent managerial policy.
       Further, the Board’s policy of placing a DNH designation in the files of PATs
       following two nonrenewals or an unsatisfactory performance rating was within the
       Board’s authority because this policy directly relates to the Board’s exclusive right
       to determine its hiring guidelines. To the extent that PATs seek reinstatement, the
       disputed grievances are inarbitrable under both the CBA and section 10(b) of the
       Act. We agree with the appellate court that the Board was not obligated to arbitrate
       the instant grievances, and that the IELRB clearly erred in finding that the Board
       violated section 14(a)(1) of the Act. See id. ¶¶ 34-37.



¶ 32                                   III. CONCLUSION

¶ 33       For the foregoing reasons, the judgment of the appellate court is affirmed, and
       the cause remanded to the IELRB for further proceedings.



¶ 34      Affirmed and remanded.



¶ 35      JUSTICE KILBRIDE, dissenting:

¶ 36       The issue presented in this appeal is whether the Board of Education of the City
       of Chicago (Board) committed an unfair labor practice by refusing to arbitrate
       grievances alleging the Board placed “Do Not Hire” (DNH) designations in certain
       probationary teachers’ personnel files without giving those teachers notice. There
       is no question that the ultimate decision on whether to rehire the probationary
       teachers cannot be made in the arbitration process, but is within the Board’s sole
       discretion. The grievants seek, among other things, enforcement of procedural
       protections in the parties’ collective bargaining agreement (CBA) prohibiting
       placement of statements in a teacher’s personnel file without giving the teacher
       notice and an opportunity to respond. The Illinois Educational Labor Relations

                                               - 10 -
       Board (IELRB) found that the Board committed an unfair labor practice by
       refusing to arbitrate the grievances. In my view, the IELRB’s decision is not clear
       error and should be confirmed. Accordingly, I respectfully dissent.

¶ 37       On administrative review, this court reviews the administrative agency’s
       decision, not the decision of the appellate court. Wade v. City of North Chicago
       Police Pension Board, 226 Ill. 2d 485, 504 (2007). As the majority holds, the issues
       in this case present mixed questions of law and fact subject to review for clear error.
       A decision is clearly erroneous only when “the reviewing court, on the entire
       record, is ‘left with the definite and firm conviction that a mistake has been
       committed.’ ” AFM Messenger Service, Inc. v. Department of Employment
       Security, 198 Ill. 2d 380, 395 (2001) (quoting United States v. United States
       Gypsum Co., 333 U.S. 364, 395 (1948)). Review for clear error is significantly
       deferential to an administrative agency’s experience in construing and applying the
       statute it administers. AFM Messenger, 198 Ill. 2d at 393-95.

¶ 38        In this case, the IELRB determined that the Board violated section 14(a)(1) of
       the Illinois Educational Labor Relations Act (Act) by refusing to arbitrate the DNH
       grievances. Section 14(a)(1) of the Act provides that “[e]ducational employers,
       their agents or representatives are prohibited from: (1) [i]nterfering, restraining or
       coercing employees in the exercise of the rights guaranteed under this Act.” 115
       ILCS 5/14(a)(1) (West 2010). An employer violates section 14(a)(1) and commits
       an unfair labor practice by refusing to arbitrate an arbitrable employee grievance.
       Board of Trustees, Prairie State College v. Illinois Educational Labor Relations
       Board, 173 Ill. App. 3d 395, 408-09 (1988). In determining whether a grievance is
       arbitrable, the IELRB must examine whether it falls within the terms of the
       collective bargaining agreement. Staunton Community Unit School District No. 6 v.
       Illinois Educational Labor Relations Board, 200 Ill. App. 3d 370, 376 (1990). A
       school district may refuse to arbitrate a grievance when: (1) the district did not
       contractually agree to arbitrate the dispute; or (2) the dispute is not arbitrable under
       section 10(b) of the Act (115 ILCS 5/10(b) (West 2010)) because its subject matter
       conflicts with Illinois law. Chicago Teachers Union v. Illinois Educational Labor
       Relations Board, 344 Ill. App. 3d 624, 636 (2003).

¶ 39       This court must, therefore, first determine whether the IELRB clearly erred in
       finding that the parties contractually agreed to arbitrate the grievances involving
       placement of the DNH designations in probationary teachers’ personnel files. If the


                                                - 11 -
       IELRB did not clearly err on that point, we must consider whether it clearly erred in
       finding the grievances arbitrable under section 10(b) of the Act.



¶ 40                           Contractual Agreement to Arbitrate

¶ 41       Article 3 of the CBA defines a grievance as “a complaint involving a work
       situation; a complaint that there has been a deviation from, misinterpretation of or
       misapplication of a practice or policy; or a complaint that there has been a violation,
       misinterpretation or misapplication of any provision of this Agreement.” Article
       3-5 provides for binding arbitration as part of the grievance procedure.

¶ 42       In this case, the IELRB observed that the language in the grievance clause is
       broad, allowing for arbitration of a grievance as long as it involves a “work
       situation.” The IELRB determined that the grievances are not contractually
       precluded from arbitration given the broad language in the grievance clause and the
       absence of any exclusions. In my view, the IELRB did not clearly err in finding the
       grievances arbitrable under the broad definition provided in the CBA. The basis for
       placing the DNH designations in probationary teachers’ personnel files was an
       evaluation of their conduct during work situations.

¶ 43       Additionally, the grievances in this case allege a violation of specific
       procedural protections in the CBA governing the placement of reports or
       statements in a teacher’s personnel file. As the majority acknowledges, article 34-4
       of the CBA provides that:

              “No derogatory statement about a teacher or other bargaining unit member
          originating outside of the Chicago public school system shall be placed in the
          teacher’s or other bargaining unit member’s personnel file, provided, further,
          that any official report or statement originating within the Chicago public
          school system may be placed in the teacher’s or other bargaining unit member’s
          personnel file only if the teacher or other bargaining unit member is sent a dated
          copy thereof at the same time. The teacher or other bargaining unit member
          may respond and such response shall be attached to the filed copy.”

¶ 44       The grievances state probationary teachers did not receive notice that DNH
       designations were placed in their files. The grievances further allege the Board’s
       policy violates specific provisions in the CBA, including article 34-4. Those
       allegations are clearly “complaint[s] that there has been a violation *** of any
                                              - 12 -
       provision of this Agreement” within the express language of the grievance clause.
       Accordingly, the IELRB did not clearly err in determining that those grievances fall
       within the broad language in the grievance clause.

¶ 45       The majority, however, concludes that the IELRB misconstrued the CBA. The
       majority holds that employers may refuse to bargain over “matters of inherent
       managerial policy,” and the DNH grievances relate to a matter of managerial policy
       involving the Board’s ability to initiate employment or make hiring decisions, not
       to the terms and conditions of employment. Thus, the majority maintains that the
       matters alleged in the grievances are excluded from the bargaining process and
       cannot be covered by the grievance clause in the CBA.

¶ 46       I agree that employment decisions are a matter of inherent managerial policy
       and the Board has the sole right to determine whether probationary teachers are
       rehired. The grievances in this case, however, allege a clear violation of article 34-4
       of the CBA, prohibiting placement of official reports or statements in a teacher’s
       personnel file without giving the teacher prompt notice and an opportunity to
       respond. The grievants seek, among other things, notice to teachers of any DNH
       designation placed in their personnel files and removal of designations placed in
       files in violation of article 34-4. Those grievances do not interfere with the Board’s
       right to make hiring decisions. Rather, they complain of a violation of a term and
       condition of employment involving placement of items in teachers’ personnel files.

¶ 47       The plain intent of article 34-4 is to provide some basic protection for teachers
       encountering the specific circumstances presented in this case. Absent enforcement
       of that provision, a teacher would have no recourse if a DNH designation were
       placed in his or her personnel file wrongfully or by mistake. Article 34-4 is directed
       at preventing the secret placement of derogatory statements or reports in personnel
       files with no notice to employees. Those are the precise complaints alleged by the
       probationary teachers in this case.

¶ 48      The issue of whether the Board violated express procedural requirements in the
       CBA is arbitrable under the grievance clause. The IELRB did not clearly err in
       concluding the DNH grievances are arbitrable under the CBA.




                                               - 13 -
¶ 49                       Arbitration Under Section 10(b) of the Act

¶ 50       The majority also concludes that the IELRB committed clear error in finding
       the DNH grievances arbitrable under section 10(b) of the Act. The majority holds
       that arbitration of the grievances would conflict with section 4 of the Act (115 ILCS
       5/4 (West 2010)), stating employers are not required to bargain over “matters of
       inherent managerial policy,” and would also violate several provisions of the
       School Code providing for those same management rights. The majority’s
       determination is based on its claim that the DNH grievances interfere with the
       Board’s authority to decide whether to rehire probationary teachers. The majority
       states the “DNH grievances attempt to force the Board to hire probationary
       teachers.”

¶ 51      Section 4 of the Act states, in pertinent part:

          “Employers shall not be required to bargain over matters of inherent managerial
          policy, which shall include such areas of discretion or policy as the functions of
          the employer, standards of service, its overall budget, the organizational
          structure and selection of new employees and direction of employees.
          Employers, however, shall be required to bargain collectively with regard to
          policy matters directly affecting wages, hours and terms and conditions of
          employment as well as the impact thereon upon request by employee
          representatives.” 115 ILCS 5/4 (West 2010).

¶ 52       The IELRB determined that section 4 does not apply to this case because it
       addresses bargaining, not arbitration. Section 4 does not indicate that the
       allegations of these grievances are prohibited subjects of bargaining or preclude
       arbitration of the grievances. In my view, the IELRB did not clearly err in finding
       section 4 inapplicable to this case.

¶ 53        Even if section 4 and the School Code provisions cited by the majority were
       applicable, however, the grievances in this case do not conflict with the Board’s
       authority to make hiring decisions. As noted above, the grievances allege violations
       of specific procedural protections set forth in the CBA. The grievances allege the
       Board violated article 34-4 of the CBA by placing DNH designations in
       probationary teachers’ personnel files without giving notice to the teachers. Article
       34-4 prohibits placement of official reports or statements in a teacher’s personnel
       file without giving the teacher notice and an opportunity to respond. The grievants

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       seek, in part, notice to teachers of any DNH designation placed in their personnel
       files and removal of designations placed in files in violation of article 34-4.

¶ 54       Those allegations do not conflict with the Board’s authority to make the
       ultimate decision on whether to rehire the probationary teachers. Rather, they seek
       to enforce basic procedural protections the parties bargained for in the CBA. The
       failure to give probationary teachers the notice and opportunity to respond required
       by article 34-4 is a violation of a term and condition of employment. Without the
       enforcement of article 34-4, the probationary teachers would have no recourse or
       opportunity to be heard if a DNH designation were placed in their file wrongfully
       or by mistake.

¶ 55        As the majority recognizes, the Board may agree to follow certain procedures
       before making hiring decisions. Supra ¶ 30 (citing Lockport Area Special
       Education Cooperative v. Lockport Area Special Education Cooperative Ass’n, 33
       Ill. App. 3d 789, 794 (1975), and Cobden Unit School District No. 17 v. Illinois
       Educational Labor Relations Board, 2012 IL App (1st) 101716, ¶ 21. In Lockport
       Area Special Education Cooperative, 33 Ill. App. 3d at 792, the appellate court
       observed that school boards had been “permitted to agree to procedural
       prerequisites to the exercise of [their] discretion” on whether to rehire probationary
       teachers, including “notice, hearing, conferences with the teacher and an
       opportunity to remedy alleged deficiencies.” (Emphasis omitted.) Article 34-4 is a
       procedure the Board agreed to follow before making its discretionary hiring
       decision. It does not interfere with the Board’s ultimate authority to decide whether
       to rehire probationary teachers. Accordingly, the IELRB did not commit clear error
       in finding the grievances arbitrable under section 10(b).

¶ 56       In sum, I would hold that the IELRB did not clearly err in finding the DNH
       grievances in this case arbitrable under the CBA and section 10(b) of the Act. The
       IELRB’s decision that the Board violated section 14(a)(1) by refusing to arbitrate
       the grievances should be confirmed.




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