                               Illinois Official Reports

                                      Appellate Court



  Board of Education of the City of Chicago v. Illinois Educational Labor Relations Board,
                                 2014 IL App (1st) 130285



Appellate Court          THE BOARD OF EDUCATION OF THE CITY OF CHICAGO,
Caption                  Petitioner, v. THE ILLINOIS EDUCATIONAL LABOR
                         RELATIONS BOARD, LYNNE O. SERED, IELRB Chairman;
                         RONALD F. ETTINDER, GILBERT O’BRIEN, MICHAEL H.
                         PRUETER, MICHAEL K. SMITH, Board Members; and CHICAGO
                         TEACHERS UNION, Respondents.



District & No.           First District, Fifth Division
                         Docket No. 1-13-0285


Filed                    June 27, 2014



Held                       The Illinois Educational Labor Relations Board erred in finding that
(Note: This syllabus petitioner, the Chicago Board of Education, had to arbitrate the
constitutes no part of the grievances filed by the Chicago Teachers Union based on a new policy
opinion of the court but implemented by the board of education under which probationary
has been prepared by the teachers who have been nonrenewed twice or given an unsatisfactory
Reporter of Decisions performance rating would be designated as ineligible for rehire with a
for the convenience of “Do Not Hire” designation placed in their personnel file, since the new
the reader.)               policy was directly related to the board’s exclusive managerial right
                           “to choose whom to hire.”



Decision Under           Petition for review of order of Illinois Educational Labor Relations
Review                   Board, No. 2011-CA-0091-C.



Judgment                 Reversed and remanded.
     Counsel on               James L. Bebley, Lee Ann Lowder, and Sabrina Haake, all of Chicago
     Appeal                   Board of Education Law Department, of Chicago, for petitioner.

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

                              Kurtis Hale, of Poltrock & Giampietro, and Thaddeus Goodchild and
                              Graham Hill, both of Chicago Teachers Union, both of Chicago, for
                              respondent Chicago Teachers Union.




     Panel                    JUSTICE McBRIDE delivered the judgment of the court, with
                              opinion.
                              Justice Palmer concurred in the judgment and opinion.
                              Justice Gordon dissented, with opinion.




                                                OPINION

¶1         Petitioner, the Board of Education of the City of Chicago (the Board), argues that
       respondent Illinois Educational Labor Relations Board (IELRB) erred in finding that
       petitioner was required to arbitrate grievances filed by respondent Chicago Teachers Union
       (Union) after “Do Not Hire” (DNH) designations were placed in the personnel files of certain
       nonrenewed probationary appointed teachers because the grievances concerned “its inherent
       managerial right to choose whom to hire.”
¶2         The facts in the instant case are undisputed; the parties filed a stipulated record in lieu of
       a hearing before an administrative law judge.
¶3         The Union and the Board are parties to a collective bargaining agreement (CBA) with a
       term from 2007 to 2012. The Board alleges that on May 25, 2010, it verbally informed
       then-Union president Marilyn Stewart that the Board’s human capital department was going
       to implement a new policy of designating probationary appointed teachers who have been
       nonrenewed twice or given an unsatisfactory performance rating as ineligible for rehire by
       the Board with a DNH designation placed in their personnel file. On June 3, 2010, the Board
       sent the Union a letter conveying this information. At the end of the 2009-10 school year, the
       Board began implementing its policy.
¶4         The Union timely filed grievances and demanded arbitration of the Board’s decision in at
       least four grievances–three on behalf of individual probationary teachers and one on behalf
       of all probationary appointed teachers. All of the individual probationary appointed teachers
       received notice that they were being nonrenewed for the following school year with the

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     Chicago Public Schools, but were not informed that a DNH designation had been placed in
     their personnel file with the Board, preventing them from being hired within the district.
¶5        The individual teachers each sought different relief in their respective grievances. The
     first was filed on behalf of Venita Abrams under articles 3 and 24 of the CBA and past
     practice of the current CBA. The grievance stated that Abrams received notification on
     May 7, 2010, that she was being nonrenewed for her position at Ward School. She later
     learned that a DNH had been placed on her personnel file and “she received no notification
     of the ‘DNH’ nor was she given a reason why she has a ‘DNH’ placed on her file.” The
     Union sought findings that the Board violated the CBA and past practice when it began
     placing DNH designations in members’ files after two nonrenewals and that the Board
     violated the CBA and past practice when it used this practice to terminate current members
     who were unaware that practice was a condition of employment. The grievance noted that the
     Board did not cite article 34-4 regarding the placement and notification of derogatory
     statements in the member’s personnel file and compliance with that article “did not happen.”
     The Union requested that, to resolve the grievance, the Board remove the DNH on Abrams’
     file, allow Abrams to look for employment or a position she qualifies for within the Chicago
     Public Schools, cease the practice of placing DNH on probationary teachers’ files, allow all
     probationary teachers affected such as Abrams to look for qualified employment within the
     Chicago Public Schools, and discuss any and all changes that affect working conditions and
     employment status with bargaining members of the Union.
¶6        The second grievance was filed on behalf of Carmela Rago, challenging the DNH policy
     as “a misapplication of and a deviation from past practice of the Board-Union Agreement.”
     The grievance stated that on May 7, 2010, Rago received notification that she was not being
     reappointed as a teacher at the Schmid School for the next school year. The letter did not
     state that a DNH had been placed in her file. Rago asserted that the DNH “implies that she
     committed some hideous act of misconduct.” She stated that that the DNH policy was
     adopted over a month after she had received her termination letter, and therefore, the Board
     erred and she should be allowed to continue her employment with the Chicago Public
     Schools. The Union requested that Rago be immediately restored to a teaching position at
     Schmid School, including whatever relief is necessary to make Rago whole, and cease and
     desist from creating policies that violate the CBA.
¶7        The third individual grievance was filed on behalf of Gregory Bess and contended that
     the Board violated articles 3, 23, 36, 38, 39, and 42 of the CBA. The grievance stated that
     Bess “was not reassigned and a [DNH] was placed in his personnel file.” The Union
     requested that Bess be restored to his teaching position at Hirsch High School and he be
     made whole by being paid any lost salary and monies spent to keep his benefits.
¶8        The final grievance was filed by the Union on behalf of all affected probationary teachers
     based on articles 3, 23-2.1, 38-4 of the CBA, the Illinois School Code (105 ILCS 5/34-84
     (West 2010)), and a deviation from past practice and policy. “The grievance is in regard to
     placing a [DNH] label in bargaining unit members personnel files and records which
     indicates that they should not be rehired into the system.” The Union contended that “in some
     instances, when principals have attempted to reinstate a member at their school, they were
     told by the Chicago Public Schools that they can not hire the member because the member is
     on a [DNH] list.” As in Abrams’ grievance, the Union noted that the Board did not cite


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       article 34-4 regarding the placement of derogatory statements in the member’s personnel file
       and compliance with that article “did not happen.”
¶9         Also similar to Abrams’ grievance, the Union sought findings that the Board violated the
       CBA, the Illinois School Code, and past practice when it placed DNH designations on
       members’ files when they clearly were offered positions by the principal and that the
       Chicago Public Schools violated the CBA, the Illinois School Code, and past practice when it
       used this process to terminate members who were currently in the system and unaware that
       this practice was a condition of employment. The Union requested that the Board cease the
       practice of placing DNH designations on members if the termination was not for cause,
       remove members from the DNH list, notify all members in writing that they have received a
       DNH designation, give the Union a list of all members on the DNH list, allow all affected
       bargaining members to seek employment within the Chicago Public Schools, and discuss any
       and all changes that affect the working conditions and employment status of bargaining
       members with the Union.
¶ 10       In March 2011, the Board notified the Union in writing that it refused to arbitrate the
       grievances, stating that “it [was] convinced that the subject matter [was] excluded from
       arbitration.” In response, the Union filed an unfair labor practice charge against the Board,
       alleging that the Board had violated section 14(a)(1) of the Illinois Educational Labor
       Relations Act (the Act), which prohibited the Board from “[i]nterfering, restraining or
       coercing employees in the exercise of the rights guaranteed under” the Act. 115 ILCS
       5/14(a)(1) (West 2010).
¶ 11       In December 2011, following an investigation, the Executive Director of the Illinois
       Educational Labor Relations Board issued a complaint. In its answer, the Board raised as a
       defense that “the relief requested makes it clear that the Union is attempting to require the
       Board to hire non-employees whom the Board does not believe it should hire,” which was a
       violation of section 4 of the Act and article 48 of the CBA, both of which “make it clear that
       the Board’s hiring decisions are exclusive management rights over which the Board does not
       have to bargain or arbitrate.”
¶ 12       In March 2012, the parties filed a stipulated record in lieu of a hearing before an
       administrative law judge. In April 2012, the administrative law judge certified that there were
       no determinative issues of fact requiring an administrative law judge’s recommended
       decision and ordered the case removed to the IELRB. In December 2012, the IELRB issued a
       written opinion and order in which it found that the Board had violated section 14(a)(1) of
       the Act.
¶ 13       Under the CBA, the grievance procedure is outlined in article 3 and defines “grievance”
       as “a complaint involving a work situation; a complaint that there has been a deviation from,
       misinterpretation of or misapplication of a practice or policy; or a complaint that there has
       been a violation, misinterpretation or misapplication of any provisions of this Agreement.”
       Article 3-5 of the CBA provides for binding arbitration as part of the grievance procedure.
¶ 14       Article 34-4 concerns personnel files and provides:
               “No derogatory statement about a teacher or other bargaining unit member
               originating outside of the Chicago public school system shall be placed in the
               teacher’s or other bargaining unit member’s personnel file, provided, further, that any
               official report or statement originating within the Chicago public school system may
               be placed in the teacher’s or other bargaining unit member’s personnel file only if the

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               teacher or other bargaining unit member is sent a dated copy thereof at the same time.
               The teacher or other bargaining unit member may respond and such response shall be
               attached to the filed copy.”
¶ 15       Article 48-2 concerns management rights and provides:
                   “The BOARD shall not be required to bargain over matters of inherent managerial
               policy within the meaning of the Illinois Educational Labor Relations Act or Illinois
               School Code, which shall include such areas of discretion or policy as the functions
               of the BOARD, standards of service, its overall budget, the organizational structure
               and selection of new employees and direction of employees; provided, that in order to
               preserve the rights of the parties predating this Agreement, the BOARD shall be
               required to bargain collectively with regard to any matter concerning wages, hours or
               conditions of employment about which they have bargained for and agreed to in a
               collective bargaining agreement prior to the date of this Agreement; provided further,
               that nothing herein shall affect the rights of the UNION or any employee under
               Article 3 of this Agreement. The BOARD, however, shall be required to bargain
               collectively with the UNION with regard to policy matters directly affecting wages,
               hours and terms and conditions of employment as well as the impact thereon upon
               request by the UNION.”
¶ 16       The IELRB noted that there was no express language excluding the matter from
       arbitration. By contrast, the language in the grievance clause was broad and contained no
       specific exclusions; the IELRB pointed out that “[t]he definition of a grievance in this case
       allows for a grievance to be arbitrated as long as it involves a work situation, regardless of
       whether the grievance can be tied to specific language in the collective bargaining
       agreement.” Additionally, two of the filed grievances specifically stated that the contractual
       requirements for placement of derogatory documents in teachers’ personnel filed were not
       satisfied. The IELRB also concluded that section 4 of the Act did not preclude arbitration of
       the grievances because it was not applicable, since it “address[ed] bargaining, not
       arbitration.” Thus, the IELRB found that, pursuant to the Act and the parties’ CBA, the
       Board had a duty to arbitrate the grievances and, by refusing to proceed to arbitration, the
       Board violated section 14(a)(1) of the Act.
¶ 17       This appeal followed.
¶ 18       On appeal, the Board argues that the IELRB erred in concluding that the Board had a
       duty to arbitrate the grievances under the CBA because the Board has an inherent managerial
       right over hiring decisions that is excluded from arbitration. The Union and the IELRB
       maintain that the IELRB’s decision was correct and the Board is obligated to arbitrate the
       grievances under the CBA.
¶ 19       The Administrative Review Law provides that judicial review of an administrative
       agency decision “shall extend to all questions of law and fact presented by the entire record
       before the court.” 735 ILCS 5/3-110 (West 2010). “The standard of review, ‘which
       determines the degree of deference given to the agency’s decision,’ turns on whether the
       issue presented is a question of fact, a question of law, or a mixed question of law and fact.”
       Comprehensive Community Solutions, Inc. v. Rockford School District No. 205, 216 Ill. 2d
       455, 471 (2005) (quoting AFM Messenger Service, Inc. v. Department of Employment
       Security, 198 Ill. 2d 380, 390 (2001)). We review an agency’s conclusion on a question of
       law de novo, but we are not bound by the agency’s interpretation of a statute. Id. A decision

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       involving a question of fact is afforded deference and will not be reversed unless it is against
       the manifest weight of the evidence. Id. at 471-72. “A mixed question of law and fact asks
       the legal effect of a given set of facts.” Id. at 472. “An agency’s conclusion on a mixed
       question of law and fact is reviewed for clear error.” Id. Here, the administrative law judge
       found that there were no determinative issues of fact and the IELRB agreed with that
       conclusion and only considered legal issues. Accordingly, we review the legal issues
       de novo.
¶ 20       Section 14(a)(1) of the Act prohibits “[e]ducational employers, their agents or
       representatives” from “[i]nterfering, restraining or coercing employees in the exercise of the
       rights guaranteed under this Act.” 115 ILCS 5/14(a)(1) (West 2010). A school district’s
       refusal to submit to binding arbitration under a CBA is a violation of section 14(a)(1) of the
       Act. Niles Township High School District 219 v. Illinois Educational Labor Relations Board,
       379 Ill. App. 3d 22, 24 (2007) (citing 115 ILCS 5/14(a)(8) (West 2004), and Board of
       Education of Community School District No. 1, Coles County v. Compton, 123 Ill. 2d 216,
       221 (1988)). However, refusal is considered an appropriate method to challenge the
       arbitrability of the issue. Id. “There are two grounds for challenging arbitrability: (1) there is
       no contractual agreement to arbitrate the substance of the dispute; and (2) the dispute is not
       arbitrable under section 10(b) of the Act (115 ILCS 5/10(b) (West 2004)) because the subject
       matter of the dispute conflicts with other Illinois law.” Id. Our review of the arbitrability of
       the grievance gives no consideration to the merits of the underlying grievance. Rock Island
       County Sheriff v. American Federation of State, County & Municipal Employees, AFL-CIO,
       Local 2025, 339 Ill. App. 3d 295, 298 (2003). We first consider whether there was a
       contractual agreement to arbitrate the grievances at issue concerning the DNH designations
       on twice nonrenewed probationary teachers.
¶ 21       “In determining whether a school district is required to arbitrate a grievance, the IELRB
       must examine whether the grievance falls within the terms of the collective bargaining
       agreement.” Cobden Unit School District No. 17 v. Illinois Educational Labor Relations
       Board, 2012 IL App (1st) 101716, ¶ 19. “The mere existence of a dispute between an
       employee and an employer does not make the disputed matter subject to the arbitration
       procedures of a collective bargaining agreement.” Id.
¶ 22       “The appellate court has stated that probationary teachers ‘have no specific right to be
       retained by the school board.’ ” Id. ¶ 21 (quoting Lockport Area Special Education
       Cooperative v. Lockport Area Special Education Cooperative Ass’n, 33 Ill. App. 3d 789, 794
       (1975)). “While a district may agree to certain procedural limitations in a collective
       bargaining agreement, the power of the school board not to renew the employment of
       probationary teachers cannot be delegated or limited.” Id. (citing Midwest Central Education
       Ass’n v. Illinois Educational Labor Relations Board, 277 Ill. App. 3d 440, 446 (1995)).
       “There appears to be unlimited power in the boards to dismiss probationary teachers at the
       board’s discretion, while the power to dismiss tenure teachers is considerably restricted.”
       Lockport, 33 Ill. App. 3d at 792. “A school board’s statutory authority to dismiss a
       nontenured teacher during the probationary period is discretionary and does not require a
       showing of just cause.” Niles Township, 379 Ill. App. 3d at 27 (granting school board
       authority “ ‘to dismiss any teacher whenever, in its opinion, he is not qualified to teach, or
       whenever, in its opinion, the interests of the schools require it’ ” (quoting 105 ILCS
       5/10-22.4 (West 2004))).


                                                   -6-
¶ 23       Here, the issue is whether the Board is required to arbitrate grievances filed in response to
       its policy of designating probationary appointed teachers as ineligible for rehire after being
       nonrenewed twice or given an unsatisfactory performance rating. The Board contends that
       article 48-2 of the CBA and section 4 of the Act excluded the grievances at issue from
       arbitration. We first look at whether the CBA excludes the grievances.
¶ 24       Article 48-2 of the CBA expressly excludes matters of “inherent managerial policy,”
       including the selection of new employees from the bargaining process. According to the
       Board, the decision to designate probationary teachers as ineligible for rehire after having
       been nonrenewed twice falls under the auspices of its “inherent managerial policy” for “the
       selection of new employees.”
¶ 25       The IELRB found section 4 of the Act and article 48-2 of the CBA to be inapplicable
       because each addressed the Board’s bargaining power, not arbitration. However, the Supreme
       Court has noted that “arbitration of labor disputes under collective bargaining agreements is
       part and parcel of the collective bargaining process itself.” United Steelworkers of America v.
       Warrior & Gulf Navigation Co., 363 U.S. 574, 578 (1960). Further, in one of its decisions,
       the IELRB has observed that “[a]rbitration is not a procedure independent of collective
       bargaining, but rather is a component and extension of the collective bargaining process.”
       Chicago School Reform Board of Trustees, 15 PERI 1077 (IELRB 1999). “The duty to
       bargain in good faith does not end with the execution of the written agreement and is not
       limited strictly to the negotiation of the labor contract. Rather, it includes the interpretation,
       administration and enforcement of the agreement as well.” Id. Therefore, since arbitration is
       considered part of the bargaining process, a school district cannot be required to arbitrate a
       matter that is excluded from the bargaining process.
¶ 26       The Illinois Supreme Court has set forth a three-part balancing test to determine whether
       a matter is subject to mandatory bargaining or not.
                   “The first part of the test requires a determination of whether the matter is one of
               wages, hours and terms and conditions of employment. This is a question that the
               IELRB is uniquely qualified to answer, given its experience and understanding of
               bargaining in education labor relations. If the answer to this question is no, the
               inquiry ends and the employer is under no duty to bargain.
                   If the answer to the first question is yes, then the second question is asked: Is the
               matter also one of inherent managerial authority? If the answer to the second question
               is no, then the analysis stops and the matter is a mandatory subject of bargaining. If
               the answer is yes, then the hybrid situation discussed in section 4 exists: the matter is
               within the inherent managerial authority of the employer and it also affects wages,
               hours and terms and conditions of employment.
                   At this point in the analysis, the IELRB should balance the benefits that
               bargaining will have on the decisionmaking process with the burdens that bargaining
               imposes on the employer’s authority. Which issues are mandatory, and which are not,
               will be very fact-specific questions, which the IELRB is eminently qualified to
               resolve.” Central City Education Ass’n v. Illinois Educational Labor Relations
               Board, 149 Ill. 2d 496, 523 (1992).
¶ 27       The Board contends that under this balancing test, the question of whether it is permitted
       to designate nonrenewed probationary teachers as ineligible for rehire does not involve a
       question of wages, hours, or terms and conditions of employment. “A term or condition of

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       employment is something provided by an employer that intimately and directly affects the
       work and welfare of employees and that has become a mandatory subject of bargaining.”
       Thornton Fractional High School District No. 215 v. Illinois Educational Labor Relations
       Board, 404 Ill. App. 3d 757, 763 (2010). Terms and conditions of employment include
       wages, health insurance, life insurance, pension contributions, and hours. Vienna School
       District No. 55 v. Illinois Educational Labor Relations Board, 162 Ill. App. 3d 503, 507
       (1987).
¶ 28       Here, the subject of the grievances clearly relates to the Board’s ability to make hiring
       decisions, which is a matter of managerial policy, and not a matter of wages, hours or terms
       and conditions of employment. We point out that the relief sought by employees in some of
       the grievances was to be reinstated in their jobs and had little if anything to do with the
       placement of the DNH in their personnel files. Though some of the grievances cited article
       34-4 of the CBA regarding the placement of derogatory statements in a bargaining unit’s
       personnel file, none of the grievances requested the opportunity to provide a response to the
       DNH designation. Under both article 48-2 of the CBA and section 4 of the Act, the Board
       has the “inherent managerial policy” over the selection of employees. All of the grievances
       sought relief that would undermine the Board’s right to set forth its policy for selection of
       employees. In these situations, the Board set a policy not to hire certain probationary
       teachers. This is a policy matter and not subject to arbitration.
¶ 29       We disagree with the IELRB’s conclusion that the broad language of the grievance clause
       of the CBA renders the grievances subject to arbitration. As previously mentioned, the
       CBA’s definition of “grievance” is “a complaint involving a work situation; a complaint that
       there has been a deviation from, misinterpretation of or misapplication of a practice or
       policy; or a complaint that there has been a violation, misinterpretation or misapplication of
       any provisions of this Agreement.” While we agree that this language is broad, we do not
       believe the definition requires the Board to arbitrate matters that are excluded from the
       bargaining process under the CBA, including its managerial policy in selecting employees.
       Further, the interpretation by the IELRB would subject all grievances to arbitration because
       “a complaint involving a work situation” would encompass nearly every conceivable
       complaint. The CBA was not intended to provide arbitration for excluded matters and we
       decline to construe the definition as requiring otherwise. “For arbitration is a matter of
       contract and a party cannot be required to submit to arbitration any dispute which he has not
       agreed so to submit.” United Steelworkers of America v. Warrior & Gulf Navigation Co., 363
       U.S. 574, 582 (1960). Here, the Board did not agree to submit matters of “inherent
       managerial policy,” including the selection of its employees to arbitration.
¶ 30       Further, article 23-2 details the requirements for probationary teachers. Article 23-2.1
       states that “[p]robationary teachers shall be appointed on a school-year basis.” According to
       article 23-2.2, probationary teachers shall receive written notice at least 30 calendar days
       before the end of the school year as to whether they will be reappointed for the following
       school year, and for teachers completing their first or second year of probationary services,
       “[s]uch notice does not need to provide a reason for the nonrenewal of the probationary
       teacher’s employment.” Under the CBA, probationary teachers have no contractual
       entitlement to employment beyond each school year. When the probationary teachers were
       nonrenewed, the Board was only required to give notice of the nonrenewal at least 30 days
       before the end of the school year, which was done in this case. The relief requested in the


                                                  -8-
       grievances is aimed at being reappointed as a probationary teacher, which the grievants were
       not entitled to under the CBA.
¶ 31        We are not persuaded by the Union’s assertion that the Board “bargained away the right
       to designate nonrenewed probationary teachers as ineligible-for-rehire for a period of at least
       ten school months.” The Union refers to article 23-2.4 for this argument. However, article
       23-2.4 only provides that if a probationary teacher is reappointed within 10 months of a
       nonrenewal, then the teacher will not suffer a break in service for purposes of the
       “consecutive years” requirement for achieving tenure. Article 23-2.4 does not offer a form of
       temporary reprieve from nonrenewal, but only offers a benefit for a probationary teacher who
       is reappointed. Further, this provision would be inapplicable to a probationary teacher who is
       designated a DNH because he or she cannot be reappointed.
¶ 32        The Union also cites article 38-4 of the CBA for support. However, article 38-4 makes no
       reference to nonrenewed probationary teachers. Rather, this article governs probationary
       teachers who have been “released” due to closures, drop in enrollment or a change in
       educational focus. In those instances, the released probationary teachers are afforded certain
       benefits, such as retention based on seniority, no service break if reappointed within 10
       months, and an assignment to the cadre of substitute teachers. None of the grievants asserted
       that their nonrenewal was a release governed by this article. This article applies only in the
       specified instances and does not apply to a nonrenewed probationary teacher.
¶ 33        We also observe that at the time the DNH policy was to be instituted (the end of the
       2009-10 school year), the individual grievants had already received notice that they were not
       being renewed as teachers for the next school year. The Board was not required to provide a
       reason for the nonrenewal, nor were the grievants entitled to employment beyond the current
       school year. Further, though the Union asserts that the Board violated its past practice in the
       grievances, the Union fails to clearly articulate what past practice as it relates to nonrenewed
       probationary teachers was violated. The Union has not shown that a practice existed to rehire
       probationary teachers who had received an unsatisfactory performance rating or who had
       been nonrenewed twice. The only practice agreed to in the CBA is that the notification of
       nonrenewal must be received at least 30 days before the end of the school year and if such
       notice was not received, then the probationary teacher is to be reappointed.
¶ 34        Moreover, we find that grievances are inarbitrable under section 10(b) of the Act. Section
       10(b) provides:
               “The parties to the collective bargaining process shall not effect or implement a
               provision in a collective bargaining agreement if the implementation of that provision
               would be in violation of, or inconsistent with, or in conflict with any statute or
               statutes enacted by the General Assembly of Illinois.” 115 ILCS 5/10(b) (West 2010).
       “This statute precludes the parties from implementing a provision in a collective-bargaining
       agreement if it would be in violation of, or inconsistent or in conflict with other Illinois
       statutes.” Staunton Community Unit School District No. 6 v. Illinois Educational Labor
       Relations Board, 200 Ill. App. 3d 370, 378 (1990).
¶ 35        The Board has asserted that section 4 of the Act precludes arbitration in this case. Section
       4 provides, in relevant part:
               “Employers shall not be required to bargain over matters of inherent managerial
               policy, which shall include such areas of discretion or policy as the functions of the


                                                   -9-
               employer, standards of services, its overall budget, the organizational structure and
               selection of new employees and direction of employees.” 115 ILCS 5/4 (West 2010).
¶ 36       The statutory language mirrors the language in article 48-2 of the CBA and, thus, we
       reach the same conclusion here. As we previously concluded, the Board is not required to
       arbitrate matters of inherent managerial policy that were expressly excluded from the
       bargaining process.
¶ 37       Additionally, section 10-22.4 of the Illinois School Code authorizes a school district to
       dismiss a teacher “whenever, in its opinion, he is not qualified to teach, or whenever, in its
       opinion, the interests of the schools require it, subject, however, to the provisions of Sections
       24-10 to 24-15, inclusive.” 105 ILCS 5/10-22.4 (West 2010). The grievances in this case
       seek to force the Board to hire probationary teachers it determined were not qualified to
       teach, which conflicts with the Board’s statutory authority under section 10-22.4. See
       Cobden, 2012 IL App (1st) 101716, ¶ 41 (finding that a school board was not required under
       section 10-22.4 to provide a nonrenewed probationary teacher with cause or reasons for his
       nonrenewal).
¶ 38       We find further support for our conclusion in the Lockport and Midwest decisions. In
       Lockport, a probationary teacher was given proper notice that she was not being rehired for
       the following school year and filed a grievance against the school board seeking binding
       arbitration. The teacher’s union asserted that the nonrenewal constituted discipline and under
       the collective bargaining agreement, the school board needed to show just cause. The school
       board filed a declaratory judgment action regarding the arbitration and grievance procedures.
       The trial court found that the reasons for dismissing a probationary teacher were not proper
       subjects for arbitration under the collective bargaining agreement. The reviewing court
       agreed. Lockport, 33 Ill. App. 3d at 790-91.
¶ 39       The Lockport court found:
                   “As we view the agreement, the determination of whether or not just cause exists
               is not a procedural question, but is in fact the very issue at the heart of the exercise of
               the Board’s discretion. To permit that determination to be made by an arbitrator, in a
               manner which would be binding on all concerned, is to effectively delegate to the
               arbitrator the power to retain or dismiss probationary teachers.” Id. at 792.
¶ 40       The court further reasoned:
                   “In interpreting the agreement and of paramount significance, is the fact that the
               right and power of the Board to retain or dismiss probationary teachers is a
               substantive and crucial aspect of the Board’s general authority to oversee the
               education system in its district. It is an essential part of the Board’s public duty to use
               only the most qualified teachers for the education of the district children. To carry out
               this purpose, the Board is authorized to try out teachers for one or two years with no
               continuing obligation, and then to retain or dismiss the teachers as the Board
               determines, in its discretion, to be in the best interests of the children to be educated.”
               Id. at 794.
¶ 41       Similarly, in Midwest, a probationary teacher received notice that she would not be
       renewed for the next school year and the teacher’s union began grievance procedures,
       asserting that the teacher’s nonrenewal lacked just cause, the offenses were remediable, and
       the school district failed to set forth progressive discipline in the collective bargaining


                                                   - 10 -
       agreement. Midwest, 277 Ill. App. 3d at 442-43. The parties proceeded to arbitration and the
       arbitrator held that the matter was arbitrable and despite his finding that the collective
       bargaining agreement did not require just cause for nonrenewal of probationary teachers, the
       arbitrator found the district failed to give the teacher notice and failed to utilize progressive
       discipline in this case and then ordered the teacher to be reinstated. Id. at 443. The IELRB
       reversed the arbitrator’s award, finding that the remedy violated section 10(b) of the Act
       because “the power to renew a nontenured teacher was reserved exclusively to the District’s
       discretion.” Id. at 444.
¶ 42       On appeal, the reviewing court agreed with the IELRB. “The School Code grants the
       school board alone the duty to appoint teachers, and a broad power to terminate their
       employment, either by dismissal or the nonrenewal of their probationary contracts.” Id. at
       446. The court reasoned that by ordering the district to renew the probationary teacher
       despite its decision not to do so, “the arbitrator undermined authority specifically and
       exclusively reserved for the school board under the School Code: specifically, to discharge a
       nontenured teacher whenever, ‘in its opinion, [she] is not qualified to teach, or whenever, in
       its opinion, the interests of the schools require it.’ ” Id. at 446-47 (quoting 105 ILCS
       5/10-22.4 (West 1992)). The court found that allowing the arbitrator to order reinstatement of
       the probationary teacher “would be in clear derogation of the policy contemplated under the
       School Code.” Id. at 447.
¶ 43       We also find the decision in Staunton, relied on by the Union, to be easily
       distinguishable. In that case, a teacher filed a grievance seeking a designation as a full-time
       teacher because she was assigned a full-time teacher schedule, but was designated as a
       part-time teacher. Staunton, 200 Ill. App. 3d at 373. Unlike the present case, the grievance
       did not involve a question of hiring decisions, but was limited to salaries and work
       assignments. Further, the reviewing court’s conclusion that the specific grievance was not
       expressly excluded from the broad arbitration clause has no bearing on the board’s right to
       retain hiring rights as a matter of inherent managerial policy. See Staunton, 200 Ill. App. 3d
       at 378.
¶ 44       Here, the probationary teachers are seeking reinstatement, a remedy that is in derogation
       of the School Code and a decision that belongs solely to the Board. Since probationary
       teachers are employed on a school-year basis and the Board is vested with the selection of its
       employees as a matter of “inherent managerial policy,” the grievances at issue are
       inarbitrable under both the CBA and section 10(b) of the Act. Further, we find that it was
       within the Board’s authority to institute the policy to place a DNH indication in the files for
       certain probationary teachers following two nonrenewals or an unsatisfactory performance
       rating because this policy directly relates to its exclusive right to determine its hiring
       guidelines and is not subject to grievances. We hold that the IELRB erred in finding that the
       Board violated section 14(a)(1) of the Act and the Board was not obligated to arbitrate the
       grievances at issue.
¶ 45       Based on the foregoing reasons, we reverse the decision of the Illinois Educational Labor
       Relations Board and remand for further proceedings consistent with this decision.

¶ 46      Reversed and remanded.



                                                  - 11 -
¶ 47        PRESIDING JUSTICE GORDON, dissenting.
¶ 48        I must respectfully dissent. In this case, there is a narrow issue concerning whether
       petitioner Board of Education of the City of Chicago (the Board) committed an unfair labor
       practice when it refused to arbitrate four grievances by the Chicago Teachers Union (the
       Union) concerning the Board’s decision to place “Do Not Hire” designations in the personnel
       files of certain probationary teachers, which the Union and the teachers claimed violated the
       CBA between the Union and the Board. This is not a case where the arbitration process
       would decide whether these teachers should be rehired; I agree with the majority that such a
       decision is solely within the Board’s discretion. Instead, this case is about the narrow issue of
       whether placement of the “Do Not Hire” designations in the teachers’ files violated the CBA
       by, inter alia, not giving the teachers the opportunity to respond.
¶ 49        The Illinois Educational Labor Relations Board (IELRB) found that the Board committed
       an unfair labor practice when it refused to arbitrate this issue; the IELRB decision did not
       contain any suggestion that the teachers should be rehired. On direct appeal to this court
       pursuant to Illinois Supreme Court Rule 335 (eff. Feb. 1, 1994) and section 3-113 of the
       Code of Civil Procedure (735 ILCS 5/3-113 (West 2010)), the Board argues that the dispute
       was not arbitrable. Although I am mindful of the Board’s intentions not to hire bad teachers, I
       do not believe that by arbitrating this narrow issue, it will in any way affect that policy. I also
       realize that if the “Do Not Hire” designation is placed on a probationary teacher’s file
       wrongfully, that person would never have the opportunity to tell his or her side of the story
       without the arbitration process. Accordingly, for the reasons that follow, I would confirm the
       IELRB’s decision.
¶ 50        On appeal, the sole issue before us is whether the IELRB properly concluded that the
       Board’s refusal to arbitrate the placement of the “Do Not Hire” designation constituted an
       unfair labor practice. Pursuant to section 14(a)(1) of the Act, an unfair labor practice can be
       found where an educational employer interferes with, restrains, or coerces an employee in the
       exercise of the rights guaranteed to him under the Act. 115 ILCS 5/14(a)(1) (West 2010). An
       employer’s refusal to arbitrate a grievance considered arbitrable under a collective bargaining
       agreement or the law constitutes an unfair labor practice. Board of Trustees, Prairie State
       College v. Illinois Educational Labor Relations Board, 173 Ill. App. 3d 395, 408-09 (1988);
       see also Niles Township High School District 219 v. Illinois Educational Labor Relations
       Board, 379 Ill. App. 3d 22, 24 (2007).
¶ 51        “An educational employer is not required to arbitrate a dispute that it did not
       contractually agree to arbitrate or that is not arbitrable under section 10(b) [citation] of the
       Act.” Chicago Teachers Union, Local 1 v. Illinois Educational Labor Relations Board, 344
       Ill. App. 3d 624, 636 (2003); Chicago School Reform Board of Trustees v. Illinois
       Educational Labor Relations Board, 315 Ill. App. 3d 522, 530 (2000). Thus, we must first
       consider whether the parties agreed to arbitrate the matter under the terms of the CBA and, if
       so, we must then consider whether the matter is arbitrable under section 10(b) of the Act.
       Since there are no issues of fact, our review in the case at bar is de novo. Niles Township, 379
       Ill. App. 3d at 26 (“[O]ur inquiry is whether the grievances, as alleged, are, as a matter of
       law, subject to arbitration under the CBA. [Citation.] If they are, we must then address
       whether arbitration of the grievances is prohibited under section 10(b) of the Act. Our review
       is de novo.”). De novo consideration means we perform the same analysis that a trial judge
       would perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011). The majority

                                                   - 12 -
       concludes that the grievances are excluded from arbitration. I reach the opposite conclusion. I
       again note that I agree that the decision not to rehire the teachers is not arbitrable.

¶ 52                                    I. Arbitration Under the CBA
¶ 53       “[A]n agreement to arbitrate disputes will be found where the collective bargaining
       agreement contains a broad grievance clause without any specific exclusions unless there is
       forceful evidence of an intent to exclude a particular claim from arbitration.” Chicago School
       Reform Board, 315 Ill. App. 3d at 532 (citing United Steelworkers of America v. Warrior &
       Gulf Navigation Co., 363 U.S. 574, 584-85 (1960)). When determining whether a grievance
       is arbitrable, “ ‘[t]he function of the court is very limited when the parties have agreed to
       submit all questions of contract interpretation to the arbitrator. It is confined to ascertaining
       whether the party seeking arbitration is making a claim which on its face is governed by the
       contract.’ ” Staunton Community Unit School District No. 6 v. Illinois Educational Labor
       Relations Board, 200 Ill. App. 3d 370, 377 (1990) (quoting United Steelworkers of America
       v. American Manufacturing Co., 363 U.S. 564, 567-58 (1960)). Indeed, “[t]his court’s
       opinion of the merits of the grievance is immaterial. [Citation.] The issue of whether the law
       requires arbitration must be kept separate from an analysis of the merits of the underlying
       claim. A court should not rule on or be influenced by the merits of the dispute. This holds
       true even if one party’s underlying claim is frivolous. [Citation.]” Rock Island County Sheriff
       v. American Federation of State, County & Municipal Employees, AFL-CIO, Local 2025,
       339 Ill. App. 3d 295, 298 (2003).
¶ 54       In the case at bar, article 3 of the CBA governs the grievance procedure and defines
       “grievance” as “a complaint involving a work situation; a complaint that there has been a
       deviation from, misinterpretation of or misapplication of a practice or policy; or a complaint
       that there has been a violation, misinterpretation or misapplication of any provisions of this
       Agreement.” Article 3 further provides that the grievance procedure culminates in binding
       arbitration. The Union and the IELRB argue that this language encompasses the alleged
       violations at issue in the case at bar.1
¶ 55       I agree with the Union and the IELRB that the CBA’s definition of “grievance”
       encompasses the conduct at issue in the case at bar. The Union filed four grievances, three on
       behalf of individual probationary teachers who had received “Do Not Hire” designations and
       one on behalf of all probationary appointed teachers. Three of the grievances specifically
       stated that probationary teachers were not informed of the “Do Not Hire” policy and did not
       receive notice that such designations had been placed in their files. These grievances point to
       specific provisions of the CBA that were allegedly violated, including the provision requiring
       the teacher to be notified of any derogatory statements placed in his or her file with an
       opportunity to respond. For instance, the grievance on behalf of Venita Abrams stated that it
       was based on “Articles 3, 24 and past practice of the current Board-Union agreement” and
       also cited article 34-4 of the CBA, which concerns personnel files and provides: “No
       derogatory statement about a teacher or other bargaining unit member originating outside of
       the Chicago public school system shall be placed in the teacher’s or other bargaining unit
       member’s personnel file, provided, further, that any official report or statement originating

           In its brief on appeal, the Board expressly states that it “does not dispute that the CBA contains a
           1

       broad grievance clause.”

                                                     - 13 -
       within the Chicago public school system may be placed in the teacher’s or other bargaining
       unit member’s personnel file only if the teacher or other bargaining unit member is sent a
       dated copy thereof at the same time. The teacher or other bargaining unit member may
       respond and such response shall be attached to the filed copy.” The grievance on behalf of
       Gregory Bess stated that it was based on violations of “Articles 3, 23, 36, 38, 39 and 42 of
       the Board-Union Agreement.” The grievance filed by the Union on behalf of all probationary
       appointed teachers stated that it was based on violations of “Articles 3, 23-2.1, 38-4 of the
       collective bargaining agreement” and section 34-8.1 of the School Code, and also cited
       article 34-4 of the CBA. These grievances are clearly “complaint[s] that there has been a
       violation, misinterpretation or misapplication of any provisions of this Agreement.”
       Furthermore, even notwithstanding the allegations concerning specific provisions of the
       CBA, the definition of “grievance” broadly includes “a complaint involving a work
       situation.” Thus, I agree with the IELRB’s conclusion that, under the language of the CBA, a
       grievance may be arbitrable even if it cannot be tied to specific language in the CBA as long
       as it involves a “work situation.” The Board argues that because the probationary teachers
       were “let go,” there is no work situation. I find that this argument is not persuasive because
       the “Do Not Hire” designation is being placed in the personnel files allegedly because the
       evaluation of the probationary teachers’ conduct during work situations was below par.
       Consequently, under the CBA, the grievances are arbitrable.
¶ 56       The Board, however, argues that the Union’s grievances are inarbitrable because the
       Board reserved a managerial right to establish performance standards and select employees in
       article 48 of the CBA, which provides, in relevant part: “The BOARD shall not be required
       to bargain over matters of inherent managerial policy within the meaning of the Illinois
       Educational Labor Relations Act or Illinois School Code, which shall include such areas of
       discretion or policy as the functions of the BOARD, standards of service, its overall budget,
       the organizational structure and selection of new employees and direction of employees
       ***.” The Board claims that, reading the language of the CBA as a whole, “the express
       reservation in the management-rights clause of the agreement trumps the general language in
       the grievance provision.” Although the majority agrees with the Board’s argument, I do not
       find this argument persuasive with regard to the portion of the grievances alleging procedural
       violations of the CBA for the following reasons.
¶ 57       First, as the IELRB notes, the grievance clause does not merely contain “general
       language” as argued by the Board but instead contains purposely broad language.
       Presumably, the parties were aware of the terms of the CBA when they agreed to it, including
       the fact that “grievance” is defined broadly. Additionally, as noted, “an agreement to arbitrate
       disputes will be found where the collective bargaining agreement contains a broad grievance
       clause without any specific exclusions unless there is forceful evidence of an intent to
       exclude a particular claim from arbitration.” Chicago School Reform Board, 315 Ill. App. 3d
       at 532 (citing Warrior & Gulf, 363 U.S. at 584-85). Here, I cannot find that the management
       rights clause provides “forceful evidence” of an intent to exclude all issues concerning the
       “Do Not Hire” designation from arbitration. I agree that the Board has the sole right not to
       rehire these probationary teachers; however, if a “Do Not Hire” designation is placed in one
       of their files wrongfully, that teacher would have no recourse whatsoever, and no one will
       have heard his or her side of the story.



                                                  - 14 -
¶ 58       Next, I believe that the instant case is analogous to Staunton, in which the appellate court
       found a grievance arbitrable despite the presence of a management rights clause similar to
       that at issue here. In Staunton, the court considered whether a grievance from a part-time
       teacher seeking full-time status was arbitrable. Staunton, 200 Ill. App. 3d at 372. The school
       district argued that the subject was excluded from arbitration, pointing to the management
       rights clause, in which it reserved the right to direct and assign its employees and regulate
       work schedules. Staunton, 200 Ill. App. 3d at 376. The appellate court noted that “[t]he
       collective-bargaining agreement in this case contained a broad arbitration clause, requiring
       arbitration of any contract violation. Additionally, there was no contract language expressly
       excluding any subject from the arbitration requirement.” Staunton, 200 Ill. App. 3d at 378.
       Thus, the court concluded: “Any exclusion from arbitration must be expressly stated in the
       contract. The presence of the management-rights and zipper clauses in this contract did not
       render this dispute inarbitrable. Express language, excluding from arbitration the assignment
       of teachers to full-time or part-time employment, was necessary.” Staunton, 200 Ill. App. 3d
       at 378.
¶ 59       Similarly, in the case at bar, there was no express language excluding this matter from
       arbitration. Accordingly, I agree with the IELRB that the portion of the grievances alleging
       violations of the CBA were arbitrable under the terms of the CBA. Apparently, the majority
       refuses to follow Staunton and its precedent.
¶ 60       Instead, the majority finds Staunton “easily distinguishable,” noting that “[u]nlike the
       present case, the grievance did not involve a question of hiring decisions, but was limited to
       salaries and work assignments.” Supra ¶ 43. The majority’s comment misses the point.
       Staunton is instructive because it concerns a finding of arbitrability despite the existence of a
       management rights clause similar to that at issue here. While the grievance there “was
       limited to salaries and work assignments” (supra ¶ 43), in the management rights clause, “the
       District reserved the right to direct and assign its employees and to regulate work schedules”
       (Staunton, 200 Ill. App. 3d at 376). Thus, like here, the Staunton court was required to
       determine whether the issues raised in the grievance fell within the scope of the management
       rights clause, given the existence of a broad arbitration clause.
¶ 61       Additionally, the majority also dismisses Staunton by stating that “the reviewing court’s
       conclusion that the specific grievance was not expressly excluded from the broad arbitration
       clause has no bearing on the Board’s right to retain hiring rights as a matter of inherent
       managerial policy.” Supra ¶ 43. Again, I agree that the Board has the sole right not to rehire
       these probationary teachers. However, several of the grievances allege specific procedural
       violations of the CBA. If such procedural violations are not arbitrable, then if a “Do Not
       Hire” designation is placed in one of their files wrongfully, that teacher would have no
       recourse whatsoever.
¶ 62       Finally, I find the Board’s reliance on Cobden Unit School District No. 17 v. Illinois
       Educational Labor Relations Board, 2012 IL App (1st) 101716, to be unpersuasive. There, as
       in Niles Township, the majority also found that the procedural violations alleged by the
       grievances were not actually required under the CBA at issue. Cobden, 2012 IL App (1st)
       101716, ¶¶ 23-31. As noted, the language in the grievances at issue in the case at bar allege
       violations that are supported by the plain language of the CBA. Additionally, the Cobden
       court concluded that one of the grievances concerning nonrenewal of a teacher without just
       cause conflicted with the school district’s statutory authority to dismiss a nontenured teacher.

                                                  - 15 -
       Cobden, 2012 IL App (1st) 101716, ¶ 35. However, the instant case does not involve a
       challenge to a probationary teacher’s dismissal without just cause. Instead, the instant case
       concerns the narrow issue of whether the Board complied with procedural requirements
       included in the CBA. That narrow issue is arbitrable under the language of the CBA
       according to the law as made and provided.
¶ 63       I must note that the majority’s interpretation of the management-rights clause in the
       instant case is a further step in an already-troubling line of cases, including Niles Township
       and Cobden. In finding the grievances excluded under the CBA, the majority writes: “Here,
       the subject of the grievances clearly relates to the Board’s ability to make hiring decisions,
       which is a matter of managerial policy, and not a matter of wages, hours or terms and
       conditions of employment. We point out that the relief sought by employees in some of the
       grievances was to be reinstated in their jobs and had little if anything to do with the
       placement of the DNH in their personnel files. Though some of the grievances cited article
       34-4 of the CBA regarding the placement of derogatory statements in a bargaining unit’s
       personnel file, none of the grievances requested the opportunity to provide a response to the
       DNH designation. Under both article 48-2 of the CBA and section 4 of the Act, the Board
       has the ‘inherent managerial policy’ over the selection of employees. All of the grievances
       sought relief that would undermine the Board’s right to set forth its policy for selection of
       employees.” Supra ¶ 28. Although I dissented in both Cobden and Niles Township, the
       majority in those cases at least acknowledged that procedural violations could render a
       grievance arbitrable. See, e.g., Niles Township, 379 Ill. App. 3d at 33 (“We do not imply that
       a teacher grievance alleging a violation of a collective bargaining agreement–such as
       improper record keeping–cannot be decided in an arbitration forum. It clearly can ***.”).
       Here, by contrast, although the majority notes that three of the four grievances specifically
       allege procedural violations (that the teachers were not notified of the placement of the
       derogatory statements in their personnel files), the majority finds the grievances excluded
       from arbitration because the subject of the grievances “relates to the Board’s ability to make
       hiring decisions” and the relief requested “had little if anything to do with the placement of
       the DNH in their personnel files.” Supra ¶ 28. Thus, the majority has rendered inarbitrable
       any grievances in which the subject “relates to the Board’s ability to make hiring decisions,”
       regardless of whether the grievance expressly cites a procedural violation under the CBA–a
       position which is much broader than ever made in previous cases–and has also taken it upon
       itself to subjectively determine whether the relief requested has too “little *** to do” with the
       procedural violation to be entitled to arbitration. Supra ¶ 28. With all due respect to the
       majority, “[t]he courts *** have no business weighing the merits of the grievance.” United
       Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 568 (1960). Here,
       since the grievances expressly allege violations of the CBA and are not expressly excluded
       from arbitration, the portions of the grievances concerning those violations are arbitrable.

¶ 64                                II. Arbitration Under Section 10(b)
¶ 65       I also disagree with the majority’s conclusion that the portions of the grievances alleging
       violations of the CBA are inarbitrable under section 10(b) of the Act. Chicago Teachers
       Union, 344 Ill. App. 3d at 636 (“An educational employer is not required to arbitrate a
       dispute that it did not contractually agree to arbitrate or that is not arbitrable under section
       10(b) [citation] of the Act.”). Under section 10(b):


                                                  - 16 -
               “The parties to the collective bargaining process shall not effect or implement a
               provision in a collective bargaining agreement if the implementation of that provision
               would be in violation of, or inconsistent with, or in conflict with any statute or
               statutes enacted by the General Assembly of Illinois.” 115 ILCS 5/10(b) (West 2010).
       “This statute precludes the parties from implementing a provision in a collective-bargaining
       agreement if it would be in violation of, or inconsistent or in conflict with other Illinois
       statutes.” Staunton, 200 Ill. App. 3d at 378. On appeal, the Board claims that finding the
       grievances arbitrable would conflict with section 4 of the Act and section 34-84 of the School
       Code (105 ILCS 5/34-84 (West 2010)). However, the Board did not raise its argument
       concerning section 34-84 of the School Code before the IELRB, so I would not consider it
       for the first time on appeal. See Carpetland U.S.A., Inc. v. Illinois Department of
       Employment Security, 201 Ill. 2d 351, 396-97 (2002) (“As a general rule, issues or defenses
       not raised before the administrative agency will not be considered for the first time on
       administrative review.”); Staunton, 200 Ill. App. 3d at 379 (“We will not address this issue as
       it was not decided by the [IELRB].”). Thus, I consider only whether finding the portions of
       the grievances alleging violations of the CBA arbitrable would conflict with section 4 of the
       Act.
¶ 66       Under section 4, “[e]mployers shall not be required to bargain over matters of inherent
       managerial policy, which shall include such areas of discretion or policy as the functions of
       the employer, standards of services, its overall budget, the organizational structure and
       selection of new employees and direction of employees.” 115 ILCS 5/4 (West 2010). The
       Board argues that it is only required to arbitrate a decision if it is required to bargain over it
       and, since section 4 provides that it is not required to bargain over its decision not to rehire
       probationary teachers, it cannot be required to arbitrate the issue. I do not find this argument
       persuasive.
¶ 67       “Section 4 does not apply to this case. The statute addresses bargaining, not arbitration.”
       Staunton, 200 Ill. App. 3d at 379. While, as the Board notes, arbitration is part of the
       bargaining process, section 4 only addresses whether certain subjects are mandatory subjects
       of bargaining. Section 4 does not in any way indicate that the issues contained in the
       grievances in the case at bar are prohibited subjects of bargaining, which would also prohibit
       them from being arbitrated. See Chicago Teachers Union, Local 1 v. Chicago School Reform
       Board of Trustees, 338 Ill. App. 3d 90, 97 (2003) (“A prohibited subject of bargaining cannot
       be arbitrated.”). Thus, I fail to see the relevance of a section 4 analysis to the question
       presented here, which is whether the grievances are arbitrable. Accordingly, I cannot find
       that section 4 of the Act renders the instant grievances inarbitrable.
¶ 68       As a final matter, I note that in its reply brief, the Board makes the argument that
       “[a]rbitrating the placement of documents in a non-employee’s personnel file would be a
       meaningless waste of time.” As noted, “[t]his court’s opinion of the merits of the grievance is
       immaterial. [Citation.] The issue of whether the law requires arbitration must be kept
       separate from an analysis of the merits of the underlying claim. A court should not rule on or
       be influenced by the merits of the dispute. This holds true even if one party’s underlying
       claim is frivolous. [Citation.]” Rock Island County Sheriff, 339 Ill. App. 3d at 298. As the
       United States Supreme Court has stated, “[t]he agreement is to submit all grievances to
       arbitration, not merely those which the court will deem meritorious. The processing of even
       frivolous claims may have therapeutic values of which those who are not a part of the ***

                                                   - 17 -
       environment may be quite unaware.” United Steelworkers of America v. American
       Manufacturing Co., 363 U.S. 564, 568 (1960). The fact that the Board may consider the issue
       to be “a meaningless waste of time” does not have any effect as to whether the claim is
       arbitrable.
¶ 69       Accordingly, I must dissent from the majority’s conclusion that the instant grievances are
       inarbitrable. Again, to make it absolutely clear, there is no dispute that the Board has the sole
       authority to decide whether to rehire the teachers. However, the portions of their grievances
       alleging violations of the CBA are arbitrable, and accordingly, I would confirm the IELRB’s
       decision.




                                                  - 18 -
