                         Docket No. 108785.

                        IN THE
                   SUPREME COURT
                          OF
                 THE STATE OF ILLINOIS

                       ____________________

SPEED DISTRICT 802, a/k/a Governing Board of Special Education
Joint Agreement District 802, Appellant, v. RACHEL WARNING et
                           al., Appellees.

                  Opinion filed February 25, 2011.


    JUSTICE BURKE delivered the judgment of the court, with
opinion.
    Justices Thomas, Garman, and Karmeier concurred in the
judgment and opinion.
    Chief Justice Kilbride dissented, with opinion.
    Justice Freeman dissented, with opinion, joined by Justice
Theis.


                              OPINION

     On January 8, 2008, the Illinois Educational Labor Relations
Board (IELRB or the Board) issued a decision, finding that SPEED
District 802 (the District) violated section 14(a)(3) and, derivatively,
section 14(a)(1), of the Illinois Educational Labor Relations Act (115
ILCS 5/14(a)(1), (a)(3) (West 2004)), when it failed to renew the
teaching contract of Rachel Warning (Warning), a nontenured
probationary teacher, at the end of the 2004-05 school year. The
decision of the Board was affirmed in a divided opinion by the
appellate court. See 392 Ill. App. 3d 628. We granted the District’s
petition for leave to appeal and now set aside the Board’s decision and
reverse the appellate court judgment.
                            BACKGROUND
     The following facts are taken from the record and transcripts of
the hearing before the administrative law judge.
     Warning began working as a special education teacher for SPEED
District 802 in the 2001-02 school year and was assigned to teach a
class of severely physically handicapped teenage students. With regard
to this first school year, Warning’s personnel file contains only
Warning’s annual evaluation, which shows she received an overall
rating of “Standard.”1
     During the following 2002-03 school year, however, a number of
concerns surfaced regarding Warning’s performance. Warning’s
personnel file contains a letter of reprimand, dated October 2, 2002,
indicating that Warning was admonished for failing to notify the
principal or other administrator before she sent a teaching assistant
home due to his misconduct. Warning was advised that she did not
have the authority to take this type of disciplinary action on her own
and, in doing so, her actions denied the administration the opportunity
to assess and document the situation firsthand.
     Although Warning again received an overall rating of “Standard”
in her annual evaluation, dated January 31, 2003, she received a
number of “unsatisfactory” ratings in individual performance
objectives, as well as some “excellent” ratings and comments. The
objectives in which she received poor ratings were: “Effectively
manages the instructional team,” “Interacts effectively with co-
workers,” and “Exhibits professionalism and is a role model for other
teachers and students.” In the recommendation section of the
evaluation form, Principal Call wrote:
          “When it comes to the personnel working using a trans-
          disciplinary approach, that is not evident through many
          different observations. We have discussed concerns with the
          support staff regarding a comfort level in the classroom.
                                  ***
             Your relationships with your classroom staff have been
          negative and strained this year. Earlier in the (school) year


       1
        The rating system used by the school district has only three
classifications: “Excellent,” “Standard,” and “Unsatisfactory.” A
“Standard” rating means the teacher is performing satisfactorily.

                                 -2-
         you made decisions about one of your assistants which were
         not within your role. When you were asked for follow up
         information on this situation, you did not follow up.”
In response, Warning wrote on the evaluation form:
         “I have requested from administrator and support staff for
         help in all matters but still this whole situation seems to be
         blamed on me.”
     Attached to the 2002-03 evaluation was a memorandum, also
dated January 31, 2003, and written by Principal Call. It stated, in part:
            “This afternoon we met to hold the post-conference
         meeting for your final evaluation. At this meeting the
         discussion centered on the concerns I have regarding your
         relationship and interactions with your support staff. I
         reviewed with you these areas and talked about how you need
         to be more effective in managing your classroom team. It is
         your responsibility to model and demonstrate for your
         assistants how they should be responding to support staff.
            You received your copy of the evaluation on the morning
         of January 30, 2003. That morning, after receiving the
         evaluation, you approached the Speech Pathologist (in front
         of other staff) and blamed her for your unsatisfactory ratings.
         Your actions caused this person to be found in tears in the hall
         by several other staff members. You also addressed another
         one of your support staff members that same morning in such
         a negative manner that she told you that she was not going to
         be able to assist you on a field trip.
            Your reaction to the evaluation and interactions with the
         staff following demonstrated unsatisfactory behavior. At this
         post conference I discussed with you the need for you to
         develop a plan of what you will do to address the concerns
         that have arisen related to teaming in your classroom. You
         told me that you didn’t know what to do and wanted me to
         help you with this. I again explained that I wanted you to
         come up with a plan and then we can discuss it. You asked
         me what happens if you do not come up with a plan, will I fire
         you. I told you that I had not said anything about firing you.”
     Warning submitted a written response to the memorandum,
stating:


                                   -3-
            “The areas I was evaluated in unsatisfactorily seem unfair.
         I was unaware of the support staff avoiding my classroom and
         not feeling comfortable until the administrator made me
         aware of the personalty conflict with an assistant in my
         classroom. (I was disappointed that the chain of
         communication was not followed. The support staff should
         have communicated their concerns to me first.) I was then
         directed to communicate this to my assistant and try to make
         the classroom atmosphere more comfortable for the support
         staff. I was directed to start documenting concerns. I had no
         concern in regards to my assistants other than in the beginning
         of the year. Since then everything has been excellent and I
         saw no need for further action.
            ***
            I feel my attempts to communicate and be a team member
         are belittled and or not considered. I feel the support staff
         does not respond to my attempts to communicate and then it
         seems as if I am rated poorly for the personality
         communication problems.”
     Warning was given another memo from Principal Call several
months later, on May 12, 2003. This memo provided Warning, once
again, with written notice of concerns the administration had regarding
Warnings dealings with her support staff. The document also served
to memorialize a conference meeting that had been held earlier that
day and was attended by Warning, Principal Call, an Occupational
Therapist (OT) named Robin, and two other members of Warning’s
support staff. The purpose of the meeting was to discuss Warning’s
interference in Robin’s decisionmaking regarding scheduling of
“make-up” therapy time with a student. Warning was advised that she
did not have the authority or responsibility to assess another
professional staff member’s performance. Warning was advised that
she was the only teacher who had any problems dealing with Robin
and, in the future, if she had any concerns regarding a staff member’s
performance, she should direct her concerns to the administration
rather than the staff member. Also, Warning was advised that she had
acted improperly by discussing her staff concerns with a parent.
     The memo also reprimanded Warning for her behavior during the
meeting. According to the memo, Warning and one of her assistants


                                  -4-
were rolling their eyes and nudging each other on the leg when certain
comments were made by Robin or the principal. The memo advised
Warning that she was expected to act more responsibly and
professionally, and reminded her that she would be unable to meet the
needs of her students if “the environment [in her classroom] is so tense
that the support staff does not want to work in your room.”
     In closing, Principal Call noted that, since the team meeting
conducted earlier in the year, there had been “little or no
improvement” in the situation in Warning’s classroom and that
Warnings interactions with her support staff was having a negative
impact on her performance as a professional. Principal Call asked
Warning to develop a plan on how she could improve the situation in
her classroom. Principal Call commented that this was the second
request for such a plan and she stated, “In developing this plan, you
want to take time and look at what you need to do, not what others
need to do.” Warning was also advised that her classroom behavior
would continue to be monitored for the remainder of that school year
and the next.
     Warning responded to this memo largely by denying that her
behavior with regard to Robin had been improper. Warning also
denied rolling her eyes or nudging her assistant. In addition, Warning
expressed her belief that, since the earlier team meeting, “everything
had improved tremendously.” Warning made no response to Principal
Call’s request that she develop a plan to improve the atmosphere in her
classroom. Instead, she provided a list of “concerns” she had regarding
Robin, mentioning three or four instances when, in Warning’s view,
Robin had not acted as a team player in her classroom.
     In another memo dated May 20, 2003, Principal Call documented
the fact that Warning failed to show up for a scheduled meeting to
discuss the plan she had been directed to develop on improving staff
relationships in her classroom. The memo indicated that Principal Call
contacted Warning to remind her of the meeting and when Warning
finally arrived at Principal Call’s office, she had not prepared a written
plan. Moreover, Principal Call noted that when she asked Warning if
she had any ideas on how she could improve her classroom
atmosphere, Warning “with a smile on her face” responded, “I am
going to continue to do an excellent job as I have done in the past.”
     Principal Call also noted that Warning had acted unprofessionally


                                   -5-
after receiving the earlier memo and she advised Warning that she
should take seriously the concerns that were being addressed with her,
particularly in light of the fact that one of Warnings’s assistants had
filed a complaint with the State Board alleging that students in her
classroom were not getting all the services they required. As a result
of that complaint, Principal Call needed Warning to supply copies of
her lesson plans for that school year in addition to supplying a plan on
how she could improve her interactions with staff members.
     Warning’s response to Principal Call’s May 20, 2003, memo,
dated May 22, 2003, purports to be Warning’s plan for improving her
relationships with her staff. The document indicates that it is the third
plan submitted by Warning due to the fact that others had been
“rejected.” This plan, however, did not contain any ideas on how
Warning might improve her relationships with her staff. Instead, it
simply listed things Warning agreed to do or “continue” to do. For
example, the first item provides:
            “1. Will continue to communicate with all SPEED Team
         members by: (a) By [sic] a plan developed and agreed upon
         by all members of the SPEED Team.”
     The last two items on the list provide:
            “6. Per your request (Kathy Call), Teacher will not monitor
         support staff minutes.
            7. Per your request (Kathy Call), I will decrease my jovial
         demeanor and be more serious.” (Emphasis in original.)
     The next item in Warning’s personnel file is her evaluation for the
2003-04 school year, Warning’s third probationary year.2 The
evaluation form, dated January 26, 2004, was completed by Principal
Call and, once again, gave Warning an overall rating of “Standard.” In
her comments, Principal Call commended Warning for making “great


    2
     Section 34–84 of the School Code (105 ILCS 5/34–84 (West 2004)),
 provides that permanent appointment of a full-time teacher “shall be made
 for merit only” and, after January 1, 1998, only after “satisfactory service
 for a probationary period of *** 4 years.” The Code provision also states
 that teachers, once permanent, shall be subject to removal for cause, but
 that “during [this probationary] period the board may dismiss or discharge
 any such probationary employee upon the recommendation, accompanied
 by the written reasons therefor, of the general superintendent of schools.”

                                    -6-
strides” in implementing suggestions that had been made and for
taking “a great step in the direction of creating a positive environment”
in her classroom. The evaluation indicates that Warning was given all
new assistants for this school year and “on several occasions” Warning
had sought help directly from Principal Call to work out a plan that
would allow these new assistants to be more actively involved in the
lesson plans. Principal Call encouraged Warning to continue the
practice of seeking help in areas of need.
     Principal Call also advised Warning in the evaluation that she
needed to be more consistent in her data collection in order to provide
a better measure of her students’ progress. She noted, too, that
Warning needed to implement different activities to keep her students
engaged when they were not working directly with a staff member.
     The following 2004-05 school year was Warning’s fourth year as
a probationary teacher for SPEED District 802. On November 16,
2004, Assistant Principal Julie Egan conducted an initial observation
of Warning’s classroom for that school year. Egan described
Warning’s classroom as “warm and supportive” and gave Warning
high grades for her “positive and caring connections” with the
students, her motivation of the students, and her management and
organization of the classroom in regard to providing space and
interesting activities for the students. However, Egan suggested that
Warning “continue to have open communication” with her team and
“consider meeting daily” with them so they could discuss the monthly
units and the needs of each student. Also, similar to comments in
Warning’s evaluation a year earlier, Egan reminded Warning that she
must prepare written daily lesson plans and that she needed to find a
means of monitoring and recording student progress.
     The next entry in Warning’s personnel file is a memo from Dr.
Geneva Clasberry, director of Human Resources, dated December 8,
2004. The subject line reads: “Attempt to Correct Deficiencies” and
the body of the memo explains that on December 3, 2004, a
paraprofessional had reported Warning for using inappropriate
language. The memo memorializes a meeting that was held with
Warning, which was also attended by the new principal, Ben Runyan,
and a union representative, Beth Wierzbicki. The memo indicates that
Warning admitted at the meeting that she had used improper language,
but commented that she had only been “joking.”


                                  -7-
     It was noted in Dr. Clasberry’s memo that the current incident
was the second time during that school year3 that a paraprofessional
had reported Warning for inappropriate language. Warning was
advised that her conduct was unacceptable and that her language had
to be corrected. Warning also was advised that further incidents could
result in discipline “up to dismissal.” To remedy the problem, Warning
was told that she would be required to participate in training focused
on building interpersonal skills.
     In Warning’s response, dated December 15, 2004, she implied
that her use of improper language was not serious because she had
been talking to an adult outside the classroom setting. Further,
Warning wrote:
             “This behavior was corrected immediately and My [sic]
          apology was accepted. According to the hierarchy in the chain
          of command, the situation was taken care of between the
          individuals. And was also at the time stated by the
          paraprofessional that it was not a situation that needed to be
          addressed. This should have gone no further (which was two
          weeks later) and blown out of proportion. The situation had
          been resolved.
             I am a respectable and professional individual.
             I will continue to refrain from using inappropriate language
          and I will participate in training sessions.”
     In addition to the above-quoted response, Warning submitted a
memo in which she describes various behaviors of the
paraprofessional who had reported her inappropriate language. It
appears Warning believed that the paraprofessional reported her in
retaliation for incidents that had occurred in the classroom between
October and November of 2004.
     In February 2005, Warning had her second classroom observation
for that school year. This observation was conducted by Principal
Runyan. Following the observation, Principal Runyan completed
Warning’s evaluation, gave a copy to Warning, and scheduled a
meeting for March 1, 2005, to review and discuss the evaluation with
her. The evaluation that was given to Warning rated her


     3
      There is no evidence in the personnel file regarding the previous
 incident of improper language referred to here.

                                  -8-
“Unsatisfactory” in four of seven categories, giving her an overall
rating of “Unsatisfactory.” In the commentary at the end of the
evaluation, Principal Runyan wrote:
         “Rachel, during the school day the students in your classroom
         need to be actively engaged in more instructional activities.
         From my observations there appears to be a lot of unengaged
         and misuse of instructional time. You’ve had several
         encounters over the last couple of years in reference to
         inappropriate communication with team members.
         Recommendations have been made from previous counseling
         sessions with Dr. Clasberry and me to address the
         inappropriate comment issues. As a supervisor of
         paraprofessionals it is your responsibility to maintain poise,
         tact and professionalism in both oral and written
         communication. Due to the overall summative rating of
         unsatisfactory, it is my recommendation to Dr. Pointer,
         Executive Director of SPEED, that you be placed on a plan to
         correct deficiencies[4] to work on the four unsatisfactory
         domains in this evaluation. Please find attached a corrective
         deficiency plan. Immediately upon receipt and review of the
         plan, corrective actions must take place by May 1, 2005, or
         recommendation for your termination will be presented to Dr.
         Pointer.”
     At the scheduled March 1, 2005, meeting, Principal Runyan
planned to review the evaluation with Warning and discuss with her
the “Corrective Action Plan” that he developed. The plan identified
two main areas of concern regarding Warning’s performance: her
communication with classroom support staff and her “instructional
presentation.” The plan indicated that Warning’s classroom
presentation lacked “consistency, student engagement, and fails to
meet the standards and expectations of best practice approaches within
the identified group of students.” The plan indicated that Runyan and
Warning would meet biweekly for remediation and, initially, required


   4
   The collective-bargaining agreement between the union and the District
prohibits the District from dismissing a third- or fourth-year probationary
teacher for performance reasons “without at least one documented attempt
to correct deficiencies.”

                                   -9-
Warning to complete two tasks: (1) utilize a resource guide and certain
identified strategies (previously presented to her by Principal Runyan)
to develop and put into practice a plan to improve communication with
staff; provide evidence that team meetings are being conducted and of
any other methods used to accomplish the goal; (2) produce evidence
of weekly lesson plans and themes, documenting the amount of time
each student is engaged in “standard-based instruction.”
     For the March 1, 2005, evaluation conference, Warning brought
with her a union representative, Beth Wierzbicki. Rather than discuss
the evaluation, Warning and Beth took this opportunity to argue with
Runyan about the evaluation form, itself. They insisted that Runyan
was required to rate each of the subcategories contained within the
main evaluation domains. Runyan, however, asserted that the
collective-bargaining agreement did not require him to rate the
individual subcategories and that he would not do so since the
evaluation clearly indicated the areas of concern regarding Warning’s
deficiencies.
     At the close of this meeting, Principal Runyan told Beth that her
services would no longer be necessary at subsequent remediation
meetings. Warning objected and Beth asserted the position that
Warning was entitled to union representation because Warning’s job
was on the line. Principal Runyan, however, expressed his belief that
representation was neither necessary nor required at performance
based meetings.
     The next scheduled meeting between Warning and Principal
Runyan was set for March 4, 2005. Beth accompanied Warning and,
according to notes Beth took, they again spent much of the time during
this second meeting requesting additional clarification as to the
specific performance objectives in which Warning was rated
unsatisfactorily. Beth’s notes indicated that she and Warning debated
with Runyan on the requirements of the Illinois Learning Standards.
Also, Warning tried to demonstrate to Principal Runyan how her
lesson plans were based on the Learning Standards, as well as her
students’ IEPs (Individual Education Plans). Beth noted that, at one
point during the meeting, Principal Runyan received a phone call. Beth
then directed Warning to retrieve her lesson plans and the Illinois
Assessment Book from her classroom. Upon her return, Beth and
Warning debated further with Principal Runyan over the application


                                 -10-
of the learning standards. Warning also tried to compare herself to
other teachers, asserting that she had spoken to other teachers at the
school and, in her opinion, they were not using the learning standards
she was now being required to implement. When this happened,
Principal Runyan complained that the remediation process was
becoming much too cumbersome and that Beth should not be present
at future meetings. Runyan believed that with Beth present the focus
remained on the evaluation procedure and general standards,
preventing them from working on Warning’s personal corrective
action plan. Principal Runyan told Warning that he just wanted her to
complete the corrective action tasks that he had assigned her.
     Sometime after the March 4, 2005, meeting, Principal Runyan ran
into Warning in the hall. He asked to meet with her briefly and
Warning agreed and they went to Runyan’s office. There, Principal
Runyan tried to explain to Warning why he was not going to allow
Beth to be a part of the remediation meetings anymore. Warning,
however, said she would refuse to meet without representation and
began to read from her union card. Principal Runyan became upset,
jumped up from his chair and, in a loud voice, said, “I don’t care what
the card says.” Warning responded that she did not have to take this
treatment and walked out of the meeting.
     On March 9, 2005, Principal Runyan visited Beth’s classroom and
asked to speak with her. He told Beth that he did not hold anything
against her personally, nor was he against the union, but that he had
discussed the situation with Dr. Pointer, executive director of SPEED,
and they had agreed that union representation was not appropriate at
Warning’s remediation meetings. Beth disagreed and asserted the
position that, because Warning might be subject to dismissal, she had
a right to union representation. Beth admitted that Principal Runyan
acted professionally when speaking with her. He also conceded that,
as a new principal, he was somewhat unfamiliar with the rules
concerning the right to union representation. Nevertheless, he
maintained that union representation in this situation was neither
appropriate nor necessary.
     After this meeting, Beth wrote a memo to Principal Runyan, dated
March 17, 2005, asserting the position that Warning was entitled, by
the collective-bargaining agreement and her Weingarten rights, to have
representation of her choice, if she requests it. The next day, March 18,


                                  -11-
2005, Beth accompanied Warning to her next scheduled remediation
meeting. When they arrived at Principal Runyan’s office they saw that
Dr. Pointer was present. Dr. Pointer was quite upset and began the
meeting by advising Beth that she would no longer be permitted to
attend Warning’s remediation meetings. According to notes Beth took
of the meeting, Warning became emotional and expressed her belief
that “things were very negative against her” and that she felt she
needed the support of Beth’s representation because she really felt like
she was going to be terminated, and she still did not understand why
because her performance had not been substandard prior to that.
      As the meeting progressed, Dr. Pointer countermanded herself
and agreed to permit Beth to attend Warning’s remediation meetings.
However, this permission was contingent on Beth’s promise to act as
a mere observer during the meetings. In other words, Beth was not
permitted to speak or participate in the meetings, communicate with
Warning during the meeting, or answer any questions directed at
Warning. In fact, Beth was told that if she tried to participate in the
meeting in any way, Principal Runyan was instructed to have her
removed from the meeting.
     On March 22, 2005, Principal Runyan held another remediation
meeting to make up for the March 18 meeting that had been taken up
discussing Beth’s participation. Beth attended this meeting and,
according to her notes, Principal Runyan used this time to review
Warning’s lesson plans with her. Runyan also discussed with Warning
the methods she used in her classroom, as well as her communication
with staff and assignment of duties to peer professionals. According
to Beth, Principal Runyan appeared to be satisfied with Warning’s
lesson plans and the information she provided to him. He then gave
Warning a reading assignment–to read a chapter from a book that
Principal Runyan had shown Warning. When Principal Runyan
indicated that he would need the book back, Warning immediately
became upset and demanded to know how she was going to read a 53-
page chapter without access to the book. Beth noted that she
interceded, suggesting that Warning photocopy the chapter.
     Beth also reported that during the March 22, 2005, meeting,
Principal Runyan broached the subject of Warning’s past difficulties
in “getting along with people.” Immediately, Warning became
defensive and wanted to know specifics, stating that she was “not


                                 -12-
familiar with what he was talking about.” When Principal Runyan
mentioned a particular situation involving a parent, Warning denied
there had been a problem, explaining that the parent did not speak
English and, for that reason, she told the parent to speak with the
social worker, who spoke Spanish.
      Because of notice requirements under the collective-bargaining
agreement, Warning was given a “non-renewal letter” dated March 24,
2005, informing her that her teaching contract would not be renewed
for the following year due to performance reasons. However, Warning
was also advised by Dr. Pointer that her contract might still be
renewed if she successfully completed the corrective action plan.
      On March 31, 2005, Principal Runyan sent a memo to Warning
indicating, once again, that Beth would not be permitted to attend her
corrective action plan meetings. In a letter to IEA UniServ Director
Janet Zitzer, dated April 6, 2005, Dr. Pointer explained the reason for
Principal Runyan’s renewed decision to exclude Beth–although Beth
had previously agreed to act as a mere observer at the remediation
meetings, Beth had, once again, begun to “insert” herself into the
discussions “in a different way.” Specifically, because Beth had agreed
not to speak at the meetings, she began passing notes back and forth
with Warning. Also, using her body language–such as nodding and
shaking her head–she made her feelings known to Warning. Dr.
Pointer wrote in the letter that she considered Beth’s behavior to be
“insubordinate,” “manipulative,” and “unacceptable.”
      After meeting with Warning and Beth one final time on April 21,
2005, Principal Runyan prepared a written evaluation dated April 22,
2005, informing Warning that he was recommending that the District
not renew her contract. He noted that, although she had made
“demonstrated improvement” in the area of instruction, there had been
little growth in the area of communication. Principal Runyan wrote:
          “During the time span 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


                                  -13-
          area.
             During the planning time I had to present requests to you
          in verbal and written format. 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.”
      Having determined that Warning’s overall performance remained
unsatisfactory, Warning was advised on April 28, 2005, that her
teaching contract would terminate at the end of that school year.
      In August 2005, Warning and the SPEED Education Association,
IEA-NEA (the Association), filed an unfair labor practice charge with
the IELRB against SPEED District 802. The complaint alleged that the
District dismissed Warning “in retaliation for Warning’s insistence on
having a fellow employee and Union representative assist her in
defending herself against the possibility of adverse employment
actions.” In a subsequent “Position Statement,” the plaintiffs
elaborated, stating: (1) Warning had insisted upon having union
representation at all of her meetings with the administration of SPEED
District 802 from December 2004 through the spring of 2005 and this
was a protected activity because she had the right to union
representation at these meeting pursuant to both the Illinois
Educational Labor Relations Act and the collective-bargaining
agreement, (2) that the District was aware that Warning was asserting
a right to union representation at the meetings she had with the
administration, and (3) that the District was hostile toward Warning
because she exercised her rights and, ultimately, took adverse action
against her, i.e., did not renew her contract, because she exercised her
right to have union representation accompany her to her remediation
meetings with the District.
      The parties presented witness testimony and other evidence at a
hearing held before an Administrative Law Judge (ALJ) on November
28, 2006. In April 2007, the ALJ issued a recommended order, finding
that the District had violated section 14(a)(3) and, derivatively, section
14(a)(1), of the Act (115 ILCS 5/14(a)(1), (a)(3) (West 2004)). As a
result, the ALJ recommended that Warning be reinstated to her


                                  -14-
teaching position and awarded back pay. Also, because the dismissal
had come after Warning’s fourth probationary year, the ALJ
recommended that she be granted tenure.
      The IELRB adopted the findings and recommendations of the
ALJ. Two members of the Board, however, did not agree that
awarding Warning tenure was a proper remedy.
      The District then appealed the decision of the IELRB to the
appellate court. In a divided opinion, the appellate court affirmed. 392
Ill. App. 3d 628. Justice Garcia dissented. He believed that Warning
had no right to union representation at her postevaluation meetings
and, thus, he did not believe the evidence supported a finding that the
District discriminated against Warning as a result of union activity.
But, even if the evidence did support a finding that the District had
violated the Act, Justice Garcia believed that granting tenure was an
inappropriate remedy.
      The District filed a timely petition for leave to appeal with this
court pursuant to Supreme Court Rule 315(b), and we granted the
petition. In addition, the Illinois Association of School Boards and the
Illinois Association of School Administrators were permitted to file an
amicus brief in support of SPEED District 802, and the Illinois
Federation of Teachers was permitted to file an amicus brief in support
of Warning and the Association.

                             ANALYSIS
                         Standard of Review
     What we must decide in this case is whether the IELRB correctly
determined that SPEED District 802 violated section 14(a)(3) and,
derivatively, section 14(a)(1), of the Illinois Educational Labor
Relations Act (the Act), when it did not renew the teaching contract of
Warning, a nontenured, probationary teacher. The standards by which
we review the findings and decision of the IELRB are not in dispute.
The parties agree that judicial review of an IELRB decision is
governed by the Administrative Review Law (735 ILCS 5/3–101 et
seq. (West 1994)) and extends to all issues of law and fact presented
by the record. City of Belvidere v. Illinois State Labor Relations
Board, 181 Ill. 2d 191, 204 (1998). On issues of law, we review the
Board’s findings de novo; while findings on issues of fact are deemed
prima facie correct unless they are against the manifest weight of the


                                 -15-
evidence. City of Belvidere, 181 Ill. 2d at 204-05. Further, as we stated
in Board of Trustees of the University of Illinois v. Illinois Labor
Relations Board, 224 Ill. 2d 88, 97-98 (2007):
        “[T]he clearly erroneous standard of review is proper when
        reviewing a decision of the IELRB or the ILRB because the
        decision represents a mixed question of fact and law.
        [Citation.] An agency decision will be reversed because it is
        clearly erroneous only if the reviewing court, based on the
        entirety of the record, is “ ‘left with the definite and firm
        conviction that a mistake has been committed.’ ” [Citation.]
        While this standard is highly deferential, it does not relegate
        judicial review to mere blind deference of an agency’s order.”

                Sections 14(a)(1) and 14(a)(3) of the Act
     In the case at bar, the Board decided that the District violated
section 14(a)(3) and, derivatively, section14(a)(1), of the Act (115
ILCS 5/14(a)(1), (a)(3) (West 2004)). Section 14, entitled “Unfair
Labor Practices,” provides in pertinent part:
             “(a) Educational employers, their agents or representatives
          are prohibited from:
                (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)(1), (a)(3) (West 2004).
     It has been held that 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. See Bloom Township High School District 206 v.
Illinois Educational Labor Relations Board, 312 Ill. App. 3d 943, 957
(2000). 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. Bloom
Township, 312 Ill. App. 3d at 957. In such cases, the test to be applied
is the one used to determine whether a section 14(a)(3) violation
occurred. Bloom Township, 312 Ill. App. 3d at 957. A prima facie case


                                  -16-
of a section 14(a)(3) violation requires proof that the employee was
engaged in activity protected by section 14(a)(3); that the District was
aware of that activity; and that the employee was discharged for
engaging in that protected (union) activity. Board of Education, City
of Peoria School District No. 150 v. Illinois Educational Labor
Relations Board, 318 Ill. App. 3d 144, 150 (2000). The third part of
the test is established if the employee’s protected activity was a
substantial or motivating factor for the discharge or other adverse
action taken against the employee. Hardin County Education Ass’n v.
Illinois Educational Labor Relations Board, 174 Ill. App. 3d 168, 174
(1988). Since motive is a question of fact, a Board’s finding as to
motive can only be set aside if it is against the manifest weight of the
evidence. City of Burbank v. Illinois State Labor Relations Board, 128
Ill. 2d 335, 345 (1989); Bloom Township, 312 Ill. App. 3d at 957.
However, even if a prima facie showing has been made, there can be
no finding that an unfair labor practice occurred if the employer can
demonstrate, by a preponderance of the evidence, that the adverse
action would have occurred notwithstanding the protected activity.
City of Burbank, 128 Ill. 2d at 346; Board of Education, City of Peoria
School District No. 150, 318 Ill. App. 3d at 150.
      In the case at bar, the District challenges the Board’s decision that
it committed an unfair labor practice on two grounds. First, the District
contends that the first prong of the test used to prove a section 14(a)(3)
violation was not satisfied. The District argues that Warning was not
engaged in a protected union activity when she insisted on having
representation at her remediation meetings. Second, the District
contends that, even if a prima facie case was made, the manifest
weight of the evidence supports a finding that Warning’s contract
would not have been renewed in any event, due to deficiencies in her
teaching and communication skills. Accordingly, the District asks us
to find that the Board’s decision, finding that the District committed
an unfair labor practice, is clearly erroneous.

                          Protected Activity
    We first consider the District’s contention that the Board erred
when it found that Warning made out a prima facie case of a section
14(a)(3) unfair labor practice. As noted above, for the Board to have
found that Warning demonstrated a prima facie case of a section


                                   -17-
14(a)(3) violation, and derivatively a section 14(a)(1), violation, the
Board had to find that Warning satisfied her initial burden of proving
that she had been discriminated against (i.e., discharged) because she
had engaged in an activity protected by section 14(a)(3) (i.e., union
activity).
     Warning and the Association alleged in the complaint against the
District that Warning was engaged in a protected activity when she
insisted on union representation at her remediation meetings. Warning
and the Association contended that Warning was entitled to union
representation by both the Labor Act and the collective-bargaining
agreement between the Association and SPEED District 802. Before
the ALJ, they pointed to section 3–10 of the collective-bargaining
agreement, which provides:
            “A bargaining unit member shall be entitled to have
         present a representative of the Association during any meeting
         which leads to disciplinary action.”
     They argued that, because Warning’s remediation meetings with
Runyan had the potential of resulting in adverse action, i.e., Warning’s
dismissal, she had the right to representation under the agreement.
     The District challenged this allegation, noting that section 3–10
of the collective-bargaining agreement further provides that
“disciplinary action is not performance based.” Thus, the District
maintained that, because remediation meetings are performance based,
the collective-bargaining agreement did not afford Warning a right to
union representation and, therefore, there was no evidence that
Warning suffered any adverse action as a result of her participation in
a protected union activity.
     In resolving this controversy, the ALJ agreed that section 3–10 of
the collective-bargaining agreement defined “disciplinary action” as
“not performance based.” Nevertheless, the ALJ dismissed the
District’s argument in one sentence, stating: “There is no evidence,
however, that the contractual provision was intended to waive a non-
tenured teacher’s Weingarten rights to union representation during an
investigatory conference.”
     In National Labor Relations Board v. Weingarten, 420 U.S. 251,
43 L. Ed. 2d 171, 95 S. Ct. 959 (1975), it was held that an employer
violated section 8(a)(1) of the NLRA–the model for our section
14(a)(1)–when it denied an employee’s request for union


                                 -18-
representation at an “investigatory interview” which the employee
reasonably believed would result in discipline. The ALJ found that
remediation meetings are “investigatory,” relying on Summit Hill
School District 161, 4 Pub. Employee Rep. (Ill.) par. 1009, No.
86–CA–0090–C (IELRB December 1, 1987).
     It is true that, in Summit Hill, the IELRB found that remediation
meetings were “investigatory.” However, that is only one of the
IELRB’s findings in that case, which the ALJ selectively adopted.
Summit Hill involved a tenured teacher who was denied union
representation at postobservation (remediation) meetings held during
the one-year remediation period required for tenured teachers by the
School Code. When asked to determine whether this denial of
representation was an unfair labor practice, the IELRB in Summit Hill
held:
              “Under the Education Reform Act, the remediation process
          may lead to one of two results: successful remediation or
          discharge. One purpose of the process is to alert the teacher to
          perceived problems and provide the teacher with a one-year
          opportunity to improve. *** However, discipline may be
          imposed at the end of the one-year remediation period if the
          teacher has not received a ‘satisfactory’ or better rating. Ill.
          Rev. Stat. Ch. 122, pars. 24A–5(i) and (j). In other words,
          attempted remediation is a required preliminary step for the
          alternative result under the Education Reform Act, dismissal.
          If improvement is not shown, the employee may expect the
          commencement of the dismissal process, during which the
          observations of a teacher undergoing remediation and the
          reports of such observations may very well be used as
          ‘evidence’ to support the district’s case for dismissal. Thus,
          a teacher may reasonably fear that that [sic] at least some, if
          not all, post-observation conferences may ultimately lead to
          discharge.
              Nevertheless, we conclude that the right to have union
          representation as a matter of law does not attach to post-
          observation conferences ***.” (Emphasis added.) 4 Pub.
          Employee Rep. (Ill.) par. 1009, at IX–32.
     The IELRB then explained that educational labor laws in Illinois
do not provide for union representation in remediation. One reason is


                                  -19-
that postobservation conferences are required by the State Board of
Education and, therefore, “an employer is not free, as in the private
sector or the usual investigatory interview, to discontinue a
postobservation conference and proceed to obtain information from
other sources.” Furthermore, “discontinuance would also undermine
one of the goals of the conference which is to discuss and correct
deficiencies.” Accordingly, the IELRB concluded in Summit Hill that,
since the law did not afford a tenured teacher the right to union
representation at postobservation conferences, if such a right was to
exist, it would have to be contained in the collective-bargaining
agreement, but was not.
     In the present case, the ALJ found that the Board’s holding in
Summit Hill did not extend to nontenured teachers. Its rationale for this
determination was that Warning’s remediation period was much
shorter, lasting only from March 1 to May 1, 2005, and that “the union
representative whom Warning repeatedly requested *** was her
representative to protect her interests against unjust dismissal and,
similarly, the interests of all non-tenured teachers under remediation.”
The ALJ then recommended that the Board rule that the District
violated section 14(a)(3) of the Act.
     The Board subsequently adopted the ALJ’s recommendation. In
its written order, the Board, addressing the contested issue of whether
Warning had engaged in protected activity, stated:
             “Here, Warning engaged in union activity when she
          invoked representation by Association grievance
          representative Beth Wierzbicki. In Chicago Board of
          Education, 22 PERI 143, Case No. 2004–CA–0061–C
          (IELRB, April 11, 2006), the Illinois Educational Labor
          Relations Board (‘IELRB’) ruled that an employee engaged
          in union activity when he sought the union’s assistance in
          disciplinary matters and when union representatives
          accompanied him to pre-disciplinary meetings.”
     However, in the cases cited by the Board, the employees who
were found to have engaged in union activity had a right to union
representation. The Board never addressed the District’s claim that
Warning was not engaged in protected activity because she was not
entitled to union representation at her remediation meetings. Instead,
the Board stated: “It is unnecessary for us to decide whether denying
Warning union representation at the post-evaluation meetings would


                                  -20-
have been an unfair labor practice under Summit Hill School District
161, 4 PERI 1009, Case No. 86–CA–0090–C (IELRB, December 1,
1987) and NLRB v. Weingarten, 420 U.S. 251 (1975).” The Board
reasoned that this was so because “in this case it is not alleged that the
District violated the Act by denying Warning union representation.”
     The District timely appealed the Board’s ruling to the appellate
court, again arguing that, to prove an unfair labor practice under
section 14(a)(3), it was imperative that Warning show that she had
engaged in a protected activity. The District further argued that the
Board was clearly erroneous in finding that Warning engaged in a
protected activity because Warning did not have the right to union
representation at her postobservation remediation meetings. The
appellate court disagreed with the District, stating:
            “We agree with the holding in Summit Hill School District
         161, 4 Pub. Employee Rep. (Ill.) par. 1009 n.7, No.
         86–CA–0090–C, at IX–33 (IELRB December 1, 1987)
         (hereinafter 4 Pub. Employee Rep. (Ill.) par. 1009), where the
         Board determined that since postobservation remedial
         meetings can sometimes result in a teacher’s discharge, the
         suggestion that such meetings were not ‘investigatory’ must
         be rejected. We agree with the Board that Warning was
         engaged in a protected activity when she requested union
         representation during her remedial meetings with Runyan.
         See, e.g., Georgetown-Ridge Farm Community Unit School
         District No. 4 v. Illinois Educational Labor Relations Board,
         239 Ill. App. 3d 428, 464, 606 N.E.2d 667 (1992) (employee
         engaged in protected activity by seeking the assistance of
         union representative concerning reduction of hours and filing
         of complaint); Abuzir, 22 Pub. Employee Rep. (Ill.) par. 143,
         at 553 (employee engaged in protected activity when union
         representative accompanied him to predisciplinary
         meetings).” 392 Ill. App. 3d at 636-37.
     This is the sum total of the discussion on the District’s main claim
on appeal. Justice Garcia dissented, however, stating, “Warning’s
desire to have union representation at her postevaluation meetings
[could not be transformed] into union activity when no such right
exists under the collective bargaining agreement between SPEED
District 802 and SPEED Education Association.” 392 Ill. App. 3d at
642 (Garcia, J., dissenting). Justice Garcia also believed that the Board


                                  -21-
had improperly side-stepped this issue, stating:
         “Either Ms. Warning had the right to have union
         representation at the postevaluation meetings or she did not.
         If she did not, Speed District 802 was well within its
         ‘supervisory authority’ to restrict union representation at the
         postevaluation meetings to a nonactive role.” 392 Ill. App. 3d
         at 641 (Garcia, J., dissenting).
     Now, before this court, the District asks us to find that the Board
and the appellate court improperly determined that Warning engaged
in a protected activity when she insisted on having union
representation at her remediation meetings. The District maintains–as
it has from the beginning–that Warning had no right to union
representation at her postobservation conference and remediation
meetings with Principal Runyan. Accordingly, the District contends
that the Board’s decision that it committed an unfair labor practice
when it dismissed Warning is clearly erroneous. We agree.
     Warning, the Association and the Board continue to maintain that
Warning engaged in protected union activity when she asked for and
received union representation at her evaluation conference and
postobservation remediation meetings. They contend, “there is no
issue here of whether Warning had a right to union representation
during the meetings; the Board did not make, nor did it have to make,
that determination.” In their view, “the District’s right-based argument
comes too late because the District failed to enforce its view that
Warning did not have a right to representation.” Based on this
rationale, they claim the District’s rights-based assertion is
“irrelevant.” They contend “the issue here is not whether Warning had
the right to Union representation, because it was never denied her, or
whether that right was waived by contract, but rather, once she
engaged Union representation during the meetings, the District
retaliated against her and discharged her for doing so.”
     We reject the argument that if the District did not believe that
Warning was entitled to union representation at her remediation
meetings, it should have refused to meet with her under those
conditions and then sought a ruling on whether their action was an
unfair labor practice. As explained in Summit Hill, imposing such a
requirement is impractical, if not impossible. The District, unlike other
employers, does not have the discretion to discontinue remediation and
attempt to obtain information from other sources. Warning was a


                                  -22-
fourth-year probationary teacher and under section 3–9 of the
collective-bargaining agreement she could not be dismissed for
performance reasons without the District establishing at least one
documented attempt to correct deficiencies. Thus, the District was not
free to discontinue remediation.
      Further, it is counterintuitive–particularly with regard to
nontenured teachers where the remediation period is brief–to require
the District to discontinue corrective meetings and seek a ruling on
whether a teacher has the right to union representation. As stated in
Summit Hill, such a requirement would undermine the goal of
remediation conferences, which is to correct deficiencies.
      We believe the District acted reasonably in this situation. It
permitted Warning to have a union representative accompany her to
her remediation meetings despite its belief that she was not entitled to
that right.5 Also, we agree with Justice Garcia that Warning’s
insistence on having union representation at her remediation meetings
did not automatically transform this situation into a protected union
activity. An employee engages in protected union activity only when
the employee’s actions invoke a right under the law or the collective-
bargaining agreement. As Warning and the Association concede in
their brief, the United States Supreme Court concluded in National
Labor Relations Board v. City Disposal Systems, Inc., 465 U.S. 822,
79 L. Ed. 2d 839, 104 S. Ct. 1505 (1984), that “employees engage in
protected activity when invoking contractual rights because that
activity is a direct extension of collective bargaining.”
      In the case at bar, 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. As stated in Summit Hill, even though
remediation meetings are “investigatory,” the right to union
representation does not attach by law and, to exist, must be contracted
for through collective bargaining. The collective-bargaining agreement


      5
       It should be noted here that two other teachers were placed on
 corrective action plans at the same time as Warning. Both of these teachers
 were permitted to have union representation at their remediation meetings.
 One teacher voluntarily left her position without completing the corrective
 action plan. The other teacher successfully completed his corrective action
 plan and had his teaching contract renewed.

                                   -23-
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.
     We conclude, therefore, that Warning failed to prove that she was
entitled to union representation. 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.
     Without a showing of protected activity, there can be no finding
that the District discriminated against Warning for engaging in
protected activity. We find, therefore, that Warning and the
Association failed to prove the District violated section 14(a)(3) of the
Act. As a result, we find the Board’s decision, that the District
committed an unfair labor practice when it failed to renew Warning’s
teaching contract, is clearly erroneous.
     In light of our conclusion that the District’s actions did not
constitute an unfair labor practice, we need not consider whether
reinstating Warning to a tenured position was an appropriate remedy.

                            CONCLUSION
     For all the reasons stated above, we reverse the judgment of the
appellate court and set aside the decision of the IELRB that SPEED
District 802 committed an unfair labor practice when it failed to renew
Rachel Warning’s teaching contract. The cause is remanded to the
Board for further proceedings consistent with this opinion.



                                  -24-
     Appellate court judgment reversed;
     Illinois Educational Labor Relations Board decision set aside;
     cause remanded.


      CHIEF JUSTICE KILBRIDE, dissenting:
      I agree with the dissent’s analysis with two exceptions. First, on
the unfair labor practice discussion, I believe the dissent’s application
of Weingarten and Summit Hill is unnecessary given the facts of this
case. As noted by the Illinois Educational Labor Relations Board,
Warning was not denied union representation. Instead, she alleged that
the District retaliated against her for having union representation at the
meetings during the 2004-05 school year. Thus, it is unnecessary to
decide whether denying Warning union representation at those
meetings would have been an unfair labor practice under Weingarten
and Summit Hill.
      Warning engaged in protected union activity by having union
representation at the meetings, as permitted by the collective-
bargaining agreement. I agree with the dissent that Warning was
entitled to union representation at those meetings and her teaching
contract was not renewed based on her exercise of that right. The
Board correctly determined that the District committed an unfair labor
practice by not renewing Warning’s teaching contract for engaging in
protected union activity. Accordingly, I join in the dissent’s conclusion
that the Board did not err in finding the District committed an unfair
labor practice.
      Second, I disagree with the dissent’s analysis of the remedy for
the unfair labor practice. Under the Illinois Educational Labor
Relations Act, the Board is not only empowered to order a party
committing an unfair labor practice to stop the unfair practice, but may
also “take additional affirmative action.” (Emphasis added.) 115 ILCS
5/15 (West 2004). The Board’s purpose in fashioning a remedy in an
unfair labor practice case is to “make-whole” the parties by placing
them “ ‘in the same position they would have been in had the unfair
labor practice not been committed.’ [Citation.]” Paxton-Buckley-Loda
Education Ass’n v. Illinois Educational Labor Relations Board, 304
Ill. App. 3d 343, 353 (1999). 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


                                  -25-
conduct not occurred.’ [Citation.]” Paxton-Buckley-Loda Education
Ass’n, 304 Ill. App. 3d at 353-54. The Board’s remedial orders are
reviewed for abuse of discretion. Paxton-Buckley-Loda Education
Ass’n, 304 Ill. App. 3d at 353.
     Here, the Board adopted the administrative law judge’s
recommendation reinstating Warning to her teaching position and
awarding back pay. The Board determined that reinstatement of
Warning’s teaching position was the appropriate remedy for the
nonrenewal of her teaching contract because it placed her in the
position that would have existed had the unlawful nonrenewal not
occurred. The Board certainly had the authority to reinstate Warning’s
employment following the nonrenewal of her teaching contract. In
fact, reinstatement of employment was the only remedy that could
“make-whole” Warning for the unlawful nonrenewal. The Board did
not abuse its discretion in ordering this remedy.
     The reinstatement of Warning’s employment would have resulted
in tenure by operation of the School Code because she was dismissed
at the end of her fourth and final probationary year. If her employment
were reinstated, Warning would have completed her probationary
period and entered into contractual continued service under section
24–11 of the School Code (105 ILCS 5/24–11 (West 2004)).
     Contrary to the dissent, the Board had the authority to order the
reinstatement of Warning’s teaching contract with the consequence
that she receive tenure. Section 14(a)(3) of the Act prohibits
discrimination “in regard to hire or tenure of employment or any term
or condition of employment to encourage or discourage membership
in any employee organization.” (Emphasis added.) 115 ILCS
5/14(a)(3) (West 2004). By not renewing Warning’s teaching contract
at the end of her final probationary year based on her protected union
activity, the District discriminated “in regard to *** tenure of
employment.” The denial of tenure was a direct result of the
nonrenewal of Warning’s teaching contract.
     Under section 14(a)(3), denial of tenure based on the exercise of
protected union rights is unlawful. The Board’s authority must include
the power to remedy the unlawful deprivation of tenure based on
protected union activity. The Board, therefore, had the authority under
the Act to order the “make-whole” remedy of reinstating Warning’s
teaching contract with the consequence that she receive tenure.
     Further, Warning’s acquisition of tenure as a result of the


                                 -26-
reinstatement of her employment would not interfere with the
District’s legitimate interest in overseeing tenure decisions. The record
indicates that prior to the protected union activity in this case,
Warning’s performance had always been rated at least “standard” or
satisfactory. Warning received “standard” or satisfactory ratings in
each of her first three years of employment with the District. She
received a rating of “professional,” “excellent,” and “outstanding” in
the fall of her fourth and final probationary year. It was only after
Warning was subsequently admonished about using inappropriate
language with a paraprofessional and sought the assistance of a union
representative that questions were raised about her performance. The
meetings following that admonition when Warning requested union
representation led to the nonrenewal of her teaching contract.
     As the dissent clearly establishes, Warning was entitled to union
representation at those meetings and the record shows her teaching
contract was not renewed based on her exercise of that protected right.
The record indicates that Warning’s teaching contract would have been
renewed and she would have acquired tenure if she had not been
discharged based on an unfair labor practice.
     I recognize that the District has a legitimate interest in overseeing
tenure to assure continuous service by teachers of ability and
experience. See Johnson v. Board of Education of Decatur School
District No. 61, 85 Ill. 2d 338, 344 (1981). The District’s tenure
decisions must be based on lawful considerations, however. The
nonrenewal of Warning’s teaching contract was based on her protected
union activity, and the District does not have a legitimate interest in
denying a probationary teacher tenure based on an unfair labor
practice. Thus, the fact that Warning would have acquired tenure
through the Board’s reinstatement of her employment does not
interfere with the District’s legitimate interest in overseeing tenure
decisions.
     Based on these circumstances, I conclude that the Board did not
abuse its discretion in reinstating Warning’s employment. The
reinstatement of employment would have resulted in tenure. There is
no need for an additional probationary year because the District never
identified any legitimate concern with Warning’s performance. In my
view, the appellate court properly confirmed the Board’s decision and
I would affirm the appellate court’s judgment. Accordingly, I
respectfully dissent.


                                  -27-
     JUSTICE FREEMAN, 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


   6
    This court cites section 34–84 of the School Code (105 ILCS 5/34–84
(West 2004)) for this four-year probationary period. Slip op. at 6 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).

                                   -28-
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


                                 -29-
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


                                  -30-
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


                                 -31-
         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


                                -32-
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.”


                                 -33-
     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. Slip op. at 10-12. 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 slip op. at 10-14. Additional pertinent background will be
discussed in the context of my analysis of the issues.

                            II. ANALYSIS


                                  -34-
     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)(1), (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)(1), (a)(3) (West 2004)). In light of the close parallel


                                  -35-
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




                                 -36-
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 ¶143 (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 slip op. at 10-13, 23), “postevaluation meetings” (see
slip op. at 15), “evaluation conference” (see slip op. at 10, 22, 24),
“postobservation remediation meetings” (see slip op. at 22), and a
meeting that involved potential “discipline” (see slip op. at 8). These
labels eventually coagulate and muddle this court’s analysis. The fact
that the meetings defy precise characterization reveals that they


   7
    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.


                                 -37-
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


                                 -38-
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


                                   -39-
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 ¶1009
(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,


      8
       Therefore, this court’s characterization of Warning as “taking an
 assertive and confrontational stance with regard to her evaluation” (slip op.
 at 24) is not only erroneously pejorative, but also contrary to this express
 Board recognition.

                                    -40-
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 IELRA 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


     9
       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.”

                                   -41-
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


                                 -42-
         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


                                  -43-
          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


                                  -44-
         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 nonrenewing Warning’s
contract–her alleged failure to remediate 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


      10
       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.

                                  -45-
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 nonrenewing 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


                                  -46-
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


                                  -47-
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


                                   -48-
         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.


                                 -49-
