Speed District 802 v. Warning

(No. 108785. 802,

SPEED DISTRICT Governing Board of a/k/a Joint Special Agreement 802, Education District al., et v. Appellant, RACHEL WARNING Appellees. Opinion February Rehearing denied filed 2011. May 2011. Raymond A. Hauser and Gleason, William E of Sraga Hauser, LLC, of Flossmoor, for appellant. Klenck,

Paul R. of Chicago, for appellees Rachel Warning and SPEED Association, Education IEA-NEA. General, Springfield of Madigan, Attorney

Lisa (Michael General, Ann Chal- Scodro, A. Solicitor and C. General, of strom, Attorney Chicago, Assistant Educational Labor Rela- counsel), Illinois appellees Lynne and O. Sered. tions Board Christofalos, of and Athena B. Eisenhammer Stanley Eisenhammer, Kohn, Arling- & Loizzi, Rodick Hodges, for amici curiae the Illinois Association of Heights, ton of School the Illinois Association School Boards and Administrators. Feldman, of Auerbach, &

Melissa J. Cornfield curiae Illinois Federation of Teach- Chicago, for amicus ers. of the judgment delivered the

JUSTICE BURKE court, opinion. with Carman, Karmeier concurred Thomas,

Justices opinion. judgment dissented, opinion. Kilbride Chief Justice dissented, joined by opinion, with Justice Freeman Justice Theis. denial of upon dissented Kilbride

Chief Justice rehearing, opinion. with rehearing, denial of upon Freeman dissented

Justice opinion. OPINION Educational Labor 8, 2008, the Illinois January On Board) (IELRB decision, a issued or the Relations Board District) (the violated District 802 that SPEED finding 14(a)(1) the 14(a)(3) of section and, derivatively, section (115 ILCS Act Labor Relations Educational Illinois (West renew (a)(3) to 2004)), when it failed 5/14(a)(l), a (Warning), of Rachel teaching contract the probationary teacher, nontenured end of year. 2004-05 school The decision of the Board was af opinion by appellate firmed in a divided court. See App. granted petition 392 Ill. 3d 628. We the District’s appeal for leave to and now set aside the Board’s deci appellate judgment. sion and reverse the court

BACKGROUND following facts are taken from the record and transcripts hearing of the administrative before the law judge.

Warning began working special as a education teacher year for SPEED District 802 in the 2001-02 school assigned severely physically was to teach a class of handicapped teenage regard students. With this first year, Warning’s personnel only school file contains evaluation, annual which shows she received rating an overall of “Standard.”1

During following year, however, 2002-03 school regarding Warning’s number of concerns surfaced performance. Warning’s personnel file contains a letter reprimand, indicating 2, 2002, dated October failing notify was admonished for principal or other administrator before she sent a teach- ing assistant home due to his misconduct. authority

advised that she did not have the to take this type disciplinary doing action on and, so, her own opportunity her actions denied the administration assess and document the situation firsthand.

Although Warning again rating received an overall January “Standard” in her annual evaluation, dated “unsatisfactory” ratings 2003, she received a number of performance objectives, in individual as well as some rating system 1The used only the school district has three “Excellent,” “Standard,” classifications: “Unsatisfactory.” A rating performing “Standard” means the satisfactorily. teacher is objectives and comments. ratings

“excellent” man- “Effectively were: poor ratings she received which team,” effectively “Interacts with ages the instructional is a role co-workers,” professionalism and “Exhibits students.” In the recom- for other teachers and model form, Call Principal of the evaluation mendation section wrote: using a trans- working personnel it comes to the

“When through many that is not evident disciplinary approach, with discussed concerns We have different observations. classroom. comfort level in the regarding staff support ^ Í been your classroom staff have relationships Your (school) year year. Earlier in the and strained this negative your which about one of assistants you made decisions follow your you were asked for within role. When were not situation, up.” you did not follow on this up information form: on the evaluation wrote response, for support staff requested “I from administrator have seems to still this whole situation in all matters but help be blamed on me.” was a memoran- the 2002-03 evaluation

Attached to 2003, and written dum, January dated also stated, in part: It Call. Principal post-conference met to hold the “This afternoon we meeting evaluation. At this meeting your for final your regarding I have on the concerns discussion centered I your support staff. interactions with relationship and you about how and talked you these areas reviewed with your managing classroom effective in need to be more to model and demonstrate your responsibility team. It is sup- they responding should be how your assistants port staff. morning on the of the evaluation your copy

You received receiving the morning, That after January 2003. (in Pathologist front Speech evaluation, you approached the staff) unsatisfactory rat- your her for and blamed of other found in tears person to be caused this ings. Your actions also ad- members. You other staff by several in the hall your that support another one of staff members dressed you negative in such a manner that she told morning same you a field going was not to be able to assist on she trip. with to the evaluation and interactions

Your reaction unsatisfactory following the staff demonstrated behavior. I post you

At this discussed with the need for conference you plan you a to develop to of what will do address the your teaming concerns that have arisen related to you classroom. told didn’t know to do You me what you again and wanted me to with this. I help explained you up plan that I wanted to come and then we can with you discuss it. You asked me what if do come happens not you. up plan, you with a will I fire I told that I not had firing you.” said anything about to response submitted a written the memo-

randum, stating: I

“The areas was in unsatisfactorily evaluated seem I support unfair. was of avoiding my unaware staff feeling classroom and not comfortable until administra- tor made me personality aware conflict with an as- (I in my sistant disappointed classroom. was that the chain of communication support was not followed. The staff first.) should have to communicated their concerns me I my was then directed to this communicate to assistant and try atmosphere make comfortable to the classroom more support for the staff. I was directed to start documenting regards my concerns. I had no concern in to assistants other than in the beginning year. of the Since then everything has been excellent I saw and no need for further action.

[***] my I attempts feel to communicate and be teama I sup- member are belittled and or not considered. feel the port respond my attempts staff does not to communicate poorly and then it as if am personal- seems I rated ity problems.” communication given

Warning was another memo from Call Principal later, several May months on 2003. This memo provided Warning, again, once with written notice of concerns administration regarding Warning’s had

dealings support staff. document also served meeting memorialize a had held conference been day by Warning, Principal earlier that attended was (OT) Robin, Call, an named Occupational Therapist Warning’s staff. The support two other members meeting of the was to discuss interfer- purpose decisionmaking regarding scheduling ence in Robin’s time with a student. was “make-up” therapy authority responsi- advised that she did not have the or staff member’s bility professional assess another that she was the only advised performance. and, had any problems dealing teacher who with Robin future, the if had a staff any regarding in she concerns she her member’s should direct concerns performance, Also, the administration rather than staff member. Warning improperly by was advised that had acted she a parent. her staff concerns with discussing Warning for her behav- reprimanded memo also memo, to the during meeting. According Warning ior eyes her their and rolling and one of assistants were on the when certain comments nudging leg each other or the The memo advised principal. were made Robin Warning expected responsibly she to act more was and reminded her that she would professionally, and if environ- meet needs of her students “the unable to staff support ment her so tense that [in classroom] in your not to work room.” does want that, the team In Call noted since closing, Principal been year, in the there had meeting conducted earlier Warning’s in improvement” “little or no in the situation her sup- interactions with Warning’s classroom and that on her perfor- a having negative impact staff was port Warning to Call asked Principal mance a professional. as the situation improve on she could develop plan a how this was commented that Principal her classroom. Call stated, “In she plan for such a request the second plan, you at developing and look to take time want this you do.” need to Warn- do, not what others need to what ing would classroom behavior that her also advised that school for the remainder monitored to be continue year next. and the by denying largely responded

Warning memo to this regard im- had been to Robin her behavior with nudging eyes rolling or proper. denied also Warning expressed her belief addition, her assistant. meeting, “everything had that, the earlier team since response tremendously.” Warning improved no made develop plan request Principal that she Call’s improve atmosphere Instead, she in her classroom. regarding provided Robin, of “concerns” she had a list mentioning when, in three or four instances player team in her view, had not acted as a Robin classroom. Principal May Call

In another memo dated up to show for a failed documented fact meeting plan she had been to discuss the scheduled relationships develop improving staff directed to on Principal The memo indicated that Call her classroom. meeting to remind her of the contacted Warning finally Principal office, Call’s when arrived Principal plan. prepared Moreover, she had not a written any asked if she had noted that when she Call improve her classroom atmo- ideas on how she could responded, sphere, Warning a smile on her face” “with job going as I have to do an excellent “I am to continue past.” done in the Warning

Principal had acted un- also noted that Call receiving professionally she the earlier memo and after seriously the that she should take advised particularly being her, with that were addressed concerns Warnings’s light assistants had in fact that one of of the alleging complaint the Board filed a with State her students in classroom not were all getting required. services As of they a result that complaint, needed Principal supply Call her copies of lesson for that plans year school addition to supplying a plan on how she could her improve interactions with staff members. 2003,

Warning’s response 20, Call’s Principal May memo, May 22, 2003, dated purports to be plan for relationships her with her The improving staff. document indicates that it third plan is the submitted to the Warning due fact that others had been “rejected.” however, plan, This did any not contain ideas on how improve her might relationships with her staff. Instead, simply it listed or things agreed to do do. For example, “continue” to the first item provides: “1. continue to Will communicate all SPEED Team (a) by: By plan developed upon [sic] members and agreed by all members of the SPEED Team.” provide: The last two items on the list your Call), request (Kathy “6. Per Teacher will not support monitor staff minutes. Call), your request (Kathy my

7. Per I will decrease jovial demeanor and be more serious.” (Emphasis original.) item in Warning’s personnel

The next file is year, Warning’s evaluation for 2003-04 school third form, year.2 January The dated probationary evaluation 26, 2004, and, completed by Principal Call once (105 (West of 2Section 34—84 the School Code ILCS 5/34 —84 2004)) provides permanent appointment of a full-time teacher and, only only” January “shall for merit be made after *** “satisfactory probationary period years.” after service for a teachers, provision permanent, also once Code states that cause, subject “during [this shall but removal probationary] period may discharge any or such board dismiss recommendation, employee upon accompanied by probationary therefor, general superintendent written reasons schools.”

again, gave Warning rating an overall “Standard.” comments, her Principal Warning Call commended making “great suggestions strides” in implementing had in taking great step been made and for “a the direc- creating tion of a environment” in her positive classroom. given evaluation indicates that all new year

assistants for this school and “on occasions” several had sought help directly Principal from Call to work out a plan would allow these new assistants to actively be more involved in the plans. Principal lesson Call continue encouraged Warning practice of seek- ing help in areas of need.

Principal Call also advised in the evaluation that she needed to be more consistent in her data collec- tion in order to provide better measure of her students’ progress. noted, too, She that Warning needed to imple- ment different activities to her keep engaged students they when were not working directly with a staff member.

The following 2004-05 year school was Warning’s fourth year as a probationary teacher for SPEED District 802. On 16, 2004, November 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” students, with the students, motivation of the her management and organization of the classroom in regard to providing space and interesting activities for However, students. Egan suggested that Warning “continue open to have communication” with her team and “consider meeting daily” with them so could they discuss the monthly units and the needs of each student.

Also, similar to comments Warning’s year evaluation a earlier, Egan reminded that she prepare must written daily lesson plans and that she needed to find a means monitoring recording student progress. memo entry Warning’s personnel

The next file is a from Dr. Genevra director of Human Re- Clasberry, sources, 8, 2004. The line reads: subject dated December “Attempt body to Correct Deficiencies” and the 3, 2004, memo that on December a explains paraprofes- reported Warning using inappropriate sional had for a that language. meeting The memo memorializes was by held with which was also attended the new Warning, Ben and a union Beth principal, Runyan, representative, that admitted Warning Wierzbicki. memo indicates at the had used but meeting improper language, she been only “joking.” commented that she had in the cur Clasberry’s It was noted Dr. memo time that school during rent incident was second Warning had for year3 paraprofessional reported that a was that her inappropriate language. Warning advised that her had to unacceptable language conduct was and further be corrected. also was advised that To discipline “up incidents could result in to dismissal.” would be was told that she remedy problem, on participate training building in focused required skills. interpersonal 2004, 15, she Warning’s response,

In dated December not seri- improper language that her use of was implied outside the talking she had been to an adult ous because Further, wrote: setting. classroom My immediately [stc] and “This behavior was corrected hierarchy in the According to the apology accepted. was command, was taken care of between chain of the situation by the at the time stated the individuals. And was also that needed to that it not a situation paraprofessional was (which was gone This should have no further be addressed. later) The situa- proportion. out of weeks and blown two tion had been resolved. professional individual. respectable

I am a previ regarding personnel in file 3Thereis no evidence the improper language referred to here. incident of ous using inappropriate I will continue to refrain from language participate training and I will sessions.” above-quoted response, Warning addition to the a memo in which submitted she describes various behaviors of the had her paraprofessional reported who It inappropriate language. appears Warning believed the paraprofessional reported retaliation incidents that had occurred in the classroom between October and November of 2004.

In February had her second classroom observation for that school year. This observation was conducted Principal Runyan. Following the observa- tion, Principal Runyan evaluation, completed Warning’s gave copy Warning, scheduled a meeting for March 2005, to review and discuss the evaluation with her. The evaluation that given to Warning rated her “Unsatisfactory” in four of categories, seven giving her an overall rating “Unsatisfactory.” In the commentary at the evaluation, end of the Principal Runyan wrote:

“Rachel, during day the school your the students classroom actively need to be engaged in more instructional my activities. From appears observations there to be a lot of unengaged and misuse of instructional time. You’vehad several encounters over couple years the last of in refer ence to inappropriate communication with team members. Recommendations have been previous made from counsel ing Clasberry sessions with Dr. and me to address the inap propriate comment issues. As a supervisor of paraprofes your sionals it responsibility is to poise, maintain tact and professionalism in both oral and written communication.

Due to the overall rating summative unsatisfactory, of it is my Pointer, recommendation to Dr. Executive Director of SPEED, you placed plan on a to correct deficienc to ies[4] work on the four unsatisfactory domains in this

4The collective-bargainingagreement between the union and prohibits the District fourth-year probationary dismissing District from a third- or performance

teacher for reasons “without at least one attempt documented to correct deficiencies.” deficiency find a corrective

evaluation. Please attached Immediately receipt plan, and review of the cor plan. upon 2005, by May 1, or recom place rective actions must take Dr. your presented termination will be to mendation Pointer.” meeting, Principal March

At the scheduled to review the evaluation with Runyan planned her the Action Plan” and discuss with “Corrective of identified two main areas developed. plan he The her com- regarding Warning’s performance: concern and her “in- support munication with classroom staff indicated presentation.” plan structional “consistency, lacked presentation classroom and fails to meet the standards and engagement, student within expectations practice approaches best indicated that plan of students.” The group identified meet for remedia- biweekly and would Runyan two and, complete to initially, required tion (1) and certain identified guide tasks: utilize a resource Principal Run- presented to strategies (previously practice plan improve and into yan) develop put team staff; evidence that provide communication with methods any and of other being are conducted meetings (2) produce evidence accomplish goal; used to themes, documenting weekly plans lesson in “standard- engaged time each student amount of based instruction.” conference, 1, 2005, Warn- March evaluation

For the Beth representative, her a union Wierz- ing brought with evaluation, Rather than discuss the bicki. Runyan about argue opportunity

Beth took this Runyan insisted that form, They itself. the evaluation contained subcategories to rate each required however, Runyan, domains. main evaluation within the not did agreement collective-bargaining asserted that and subcategories individual him to rate the require indicated clearly evaluation not do so since the he would Warning’s deficiencies. regarding areas of concern meeting, Runyan Principal At the of this told close longer necessary at Beth that her services would no Warning subsequent meetings. objected and remediation position Warning to Beth asserted the was entitled job representation was on the because Runyan, expressed Principal however, his line. belief that necessary required was nor neither performance-based meetings. meeting Warning

The next scheduled between and Runyan Principal ac- was set March 2005. Beth companied Warning according and, took, to notes Beth they again during spent much of the time this second meeting requesting additional clarification as to the specific performance objectives Warning in which was unsatisfactorily. rated Beth’s notes indicated that she Warning Runyan requirements and debated with on the Learning of the Also, Illinois Standards. tried to Principal Runyan plans to demonstrate how her lesson Learning Standards, were based on the as well as her (Individual Plans). students’ IEPs Education Beth noted point during meeting, Principal Runyan that, at one phone received a call. Beth then directed to plans retrieve her lesson and the Illinois Assessment Upon Book return, from her classroom. Beth Principal Runyan debated further over the application learning standards. also tried compare asserting to teachers, herself other that she spoken had other and, teachers at the school in her opinion, they using learning were not standards she being required implement. hap- was now When this pened, Runyan complained Principal that the remedia- process becoming tion much too cumbersome and present meetings. that Beth should not be at future Run- yan present believed that with Beth the focus remained procedure general on the standards, evaluation preventing working Warning’s personal them from on plan. Principal Runyan

corrective action told he action just complete wanted her to the corrective assigned tasks that had her. he 4, 2005, Principal Sometime after the March meeting, Runyan ran into in the hall. He asked to meet briefly Warning agreed they with her and and went to Runyan’s There, Principal Runyan explain office. tried to he to be Warning why going to was not to allow Beth a Warning, anymore. of the remediation part meetings however, to represen- said she would refuse meet without Principal and to from her union card. began tation read and, his upset, up from chair Runyan jumped became said, voice, says.” “I care what the card a loud don’t have she did not to take this Warning responded that meeting. walked of the treatment and out 9, 2005, visited Beth’s Principal Runyan On March He Beth that classroom and asked to with her. told speak did not her nor was anything against personally, he hold union, he the situ- he but that had discussed against Pointer, SPEED, director of and ation Dr. executive ap- not representation had that union was they agreed meetings. Beth Warning’s remediation propriate that, Warn- position and asserted the because disagreed dismissal, a to union right to she had ing might subject be Runyan Beth Principal admitted that representation. with her. He also speaking when professionally acted that, he was somewhat principal, conceded as new to union concerning right the rules unfamiliar with Nevertheless, he maintained that union representation. neither appropriate in this situation was necessary. nor Principal memo meeting, Beth wrote a to

After this 17, 2005, asserting position March Runyan, dated entitled, collective-bargaining by have rights, representa- Weingarten agreement day, The next March choice, if it. requests of her she tion accompanied to her next sched- 18, 2005, Beth they Principal meeting. arrived at uled remediation When present. they Runyan’s that Dr. Pointer was office saw began meeting by quite upset and Dr. Pointer was longer permitted advising Beth that she would no According meetings. attend remediation meeting, Warning became emo- notes Beth took of the “things very expressed her belief that were tional negative against her” felt she needed the and that she really support she felt of Beth’s because going terminated, to and she still did not like she was why performance her had not been understand because prior substandard to that. meeting progressed,

As the Dr. Pointer counter- agreed permit manded herself and to Beth to attend Warning’s meetings. permis- However, remediation this contingent promise sion was on Beth’s to act as a mere during meetings. words, the observer In other Beth was permitted speak participate meetings, not to or in the Warning during meeting, communicate with or any questions Warning. fact, answer directed at Beth participate meeting was told that if she tried any way, Principal Runyan was instructed to have meeting. removed from the Principal Runyan 22, 2005,

On March held another meeting up remediation to make the March 18 meet- for ing up discussing participa- that had been taken Beth’s meeting according and, tion. Beth attended this to her Principal Runyan notes, time used this to review Warn- ing’s plans Runyan lesson with her. also discussed with classroom, the methods she used in her well as assignment as her communication with staff and of du- peer professionals. According Principal Beth, ties to Runyan appeared to be satisfied with lesson plans provided and the information she He then him.

gave Warning reading assignment chapter a read a —to

from a book that Principal Runyan had shown Warning. When Principal Runyan indicated that he would need back, the book Warning immediately became upset and demanded to know how she going was to read a 53-page without chapter access to the book. Beth noted that she interceded, suggesting photocopy chapter.

Beth also reported that during 22, 2005, March meeting, Principal Runyan broached the subject of Warning’s past difficulties in “getting along people.” Immediately, Warning became defensive and wanted to specifics, know stating that she was “not familiar with what he was talking about.” When Principal Runyan mentioned a particular situation involving parent, Warning denied there had been a problem, explaining the parent and, did not speak English for that reason, she told parent to speak with the social worker, who spoke Spanish.

Because of notice requirements under the collective- bargaining agreement, Warning given a “non- renewal 24, 2005, letter” dated March informing her that her teaching contract would not be renewed following year performance However, due to reasons. also advised Dr. Pointer that her contract still might be renewed if she successfully completed corrective action plan. 31, 2005,

On March Principal Runyan sent a memo to once indicating, again, that Beth would not permitted to attend her corrective action meet- plan ings. Zitzer, In a letter to IEA UniServ Director Janet 6, 2005, dated Dr. Pointer April explained the reason for Principal Runyan’s renewed decision to exclude Beth— although Beth had as previously agreed to act a mere had, observer at the remediation Beth meetings, once “insert” herself “in again, begun to into the discussions way.” Specifically, a different because Beth had agreed not to at the she speak meetings, began passing notes Also, back and Warning. using forth with her body language as nodding shaking head —she —such made her feelings Warning. known Dr. Pointer wrote in the letter that she considered Beth’s behavior to be “insubordinate,” “manipulative,” and “unacceptable.”

After meeting and Beth one final time April 21, 2005, on Principal Runyan prepared a written 22, 2005, evaluation dated April informing Warning that he was recommending that the District not renew her that, contract. He noted she had made although “demon- strated improvement” in instruction, the area of there had been little growth the area of communication. Principal Runyan wrote:

“During the span you time working were on the plan to deficiencies, correct more your concerns were raised due to ability lack of to communicate. You made the choice to be late for several meetings scheduled and failed to participate in a process that you enabled and me to communicate freely. Your actions have created ability barriers in our effectively communicate. process was tension driven and failed to honestly develop to a relationship to move forward in this area.

During the planning time I present had to requests to you in verbal and written format. You failed consistently provide prepared evidence when requested and seemed inadequately prepared for our meetings. wereWe unable to get open dialog into during our meeting time. During the you conversations your failed to see role the breakdown of communications. The process corrective became cumber- some and you chaotic due to the choices made.” Having determined that Warning’s overall perfor- mance remained unsatisfactory, Warning was advised on April 2005, that her teaching contract would termi- nate at the end of that school year.

In August 2005, and the SPEED Education (the Association, Association), IEA-NEA filed an unfair labor practice charge with the IELRB against SPEED complaint alleged District

District 802. The that the Warning Warning’s dismissed “in retaliation for insis- representa- having employee tence on a fellow and Union defending against possibility her in herself the tive assist subsequent employment of adverse actions.” In a “Posi- (1) plaintiffs stating: Statement,” elaborated, the tion Warning upon having representation had insisted meetings of SPEED at all of her with the administration through spring of District 802 from December 2004 activity protected had 2005 and this was a because she right representation meetings to union at these pursuant Labor Rela- to both the Illinois Educational (2) collective-bargaining agreement, tions Act and the asserting that that the District was aware right meetings she had to union at the (3) administration, and that the District was with the rights her hostile toward because she exercised against ultimately, her, i.e., did and, took adverse action right contract, her not because she exercised renew representation accompany re- her to her to have union meetings the District. mediation testimony parties presented other The witness and hearing Administrative Law evidence at a held before an (ALJ) April Judge 28, 2006. In on November finding order, ALJ issued a recommended 14(a)(3) derivatively, and, District had violated section (a)(3) (115 5/14(a)(l), 14(a)(1), section of the Act ILCS 2004)). (West result, As a the ALJ recommended teaching position to her be reinstated pay. come Also, the dismissal had awarded back because probationary year, recom- the ALJ fourth after granted she tenure. mended that findings adopted recommenda- IELRB Board, however, ALJ. Two members of tions of the proper awarding agree was a tenure did not remedy. the decision of the IELRB appealed

The District then In the opinion, appellate to the court. a divided appellate dis 392 Ill. 3d 628. Justice Garcia App. court affirmed. right had no to union

sented. He believed and, thus, postevaluation meetings finding he the a supported did not believe evidence the as a result of against Warning District discriminated But, support even if the evidence did a find activity. Act, ing that the District had violated the Justice Garcia believed that tenure was an granting inappropriate remedy.

The District filed a timely petition appeal for leave to 315(b), pursuant with this court Court Rule Supreme granted addition, and we the the As- petition. Illinois sociation of School Boards and the Illinois Association of School Administrators file permitted were an amicus 802, brief of SPEED District support and the Illinois Federation of Teachers permitted to file an amicus brief in support Warning of and the Association.

ANALYSIS

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

are the evidence. City manifest of of Belvidere, Further, 181 Ill. 2d at 204-05. as we stated in Trustees University Board Illinois v. Illinois (2007): Board, Labor Relations 2d Ill. 97-98 clearly proper erroneous standard of is “[T]he review when reviewing a decision of the IELRB or the ILRB because the represents question [Cita- decision a mixed of fact and law. agency tion.] An decision be reversed because it is will clearly only reviewing court, if erroneous based on the “ entirety record, firm of the ‘left with the definite and ” has [Cita- conviction that a mistake been committed.’ deferential, highly tion.] this standard is it does not While relegate judicial review to mere blind deference of an agency’s order.” 14(a)(1) 14(a)(3)

Sections of the Act bar, In the case at the Board decided that the District 14(a)(3) 14(a)(1) and, derivatively, violated section section 2004)). (115 (a)(3) (West 5/14(a)(l), Sec- of the Act ILCS 14, Practices,” provides tion entitled “Unfair Labor in part: pertinent

“(a) employers, agents representa- their or Educational prohibited are from: tives (1) Interfering, restraining coercing employees or rights guaranteed in under this the exercise of Act.

(3) Discriminating regard in to hire or tenure of any employment or term or condition of employment any encourage discourage membership or (a)(3) 5/14(a)(l), 115 employee organization.” ILCS 2004). (West 14(a)(1) refers to adverse

It has been held that section any an as a result of against employee action taken 14(a)(3) section refers activity, concerted while protected See activity. based on union to discrimination specifically v. Illinois High School District 206 Township Bloom Board, 943, Educational Labor Relations App. 312 Ill. 3d (2000). Where, here, violation of sec alleged as an 957 14(a)(1) 14(a)(3) conduct, from the same stems tions

113 14(a)(1) to be derivative of the section violation said 14(a)(3) Ill. Township, violation. 312 section Bloom cases, applied In such the test to be is the App. 3d 957. 14(a)(3) one used to determine whether a section viola tion occurred. Bloom 312 Ill. 3d at 957. Township, App. 14(a)(3) A of prima requires case a section violation facie proof employee activity protected was engaged 14(a)(3); by section District was aware of that activity; engag that the employee discharged (union) ing activity. in that Board Educa protected of tion, City Peoria School District No. 150 v. Illinois Board, 144, Educational Labor 318 App. Relations Ill. 3d (2000). 150 third part the test is established if the employee’s protected was a or activity substantial motivating factor for the or discharge other adverse ac tion taken against employee. Hardin County Educa tion Board, Ass’n v. Illinois Labor Educational Relations (1988). 174 App. Ill. 3d Since motive is a ques fact, tion of a Board’s as to can finding only motive set aside if it is against the manifest weight of evidence. City Burbank v. Illinois Labor State Rela Board, tions 128 Ill. 2d (1989); Bloom Town ship, However, 312 Ill. 3d App. at 957. even if prima showing made, has been finding there can be no facie that an unfair labor practice occurred if the employer demonstrate, can evidence, aby preponderance of the the adverse action would have occurred notwith standing the protected Burbank, activity. City Ill. of 2d 346; Education, at Board City Peoria School of of District No. App. 318 Ill. 3d at 150. bar,

In the case at the District the challenges Board’s decision that it practice committed an unfair labor on First, two grounds. the District contends that first the 14(a)(3) prong of the prove test used to section a viola- tion not was satisfied. The that argues Warning District was not in a engaged protected activity union she when her remediation having representation

insisted on that, if Second, the contends even a meetings. District made, of the prima case the manifest weight was facie Warning’s a that contract supports finding evidence event, in due to any would not have been renewed deficiencies and communication skills. teaching that the District asks us find the Board’s Accordingly, decision, an unfair finding that District committed practice, clearly labor erroneous. Activity

Protected the District’s contention that We first consider out a Warning erred when it found that made Board 14(a)(3) labor prima facie case of a section unfair above, found As noted for the Board have practice. a sec- prima a case of Warning demonstrated facie 14(a)(1) 14(a)(3) and, a section derivatively, tion violation satisfied violation, the Board had to find that been discrimi- that she had proving her initial burden (i.e., discharged) engaged because she had nated against 14(a)(3) (i.e., by activity protected in an section activity). complaint in the alleged and the Association in a engaged District was

against representa- she insisted on union activity when protected As- Warning and the meetings. at her remediation tion entitled to union sociation contended Act and collective- Labor both Association between bargaining agreement ALJ, sec- pointed to they Before the SPEED District 802. which agreement, the collective-bargaining 3—10 of tion provides: to have shall be entitled

“A unit member bargaining any during the Association representative present disciplinary action.” meeting which leads remediation that, argued because They resulting Runyan potential had the meetings 115 dismissal, right she had action, i.e., Warning’s adverse the agreement. under to representation that noting allegation, this challenged District agreement collective-bargaining of the 3—10 section perfor- is not action “disciplinary that provides further that, Thus, maintained the District mance based.” based, meetings performance are remediation because afford Warn- did not agreement collective-bargaining and, therefore, there union representation ing right ac- any adverse that suffered no evidence in a protected her participation tion as a result of activity. ALJ that controversy, agreed resolving

In this agreement collective-bargaining of the section 3—10 performance action” as “not “disciplinary defined District’s Nevertheless, the ALJ dismissed the based.” evidence, no sentence, “There is stating: in one argument however, was intended provision the contractual to union Weingarten rights a non-tenured teacher’s waive conference.” during investigatory an representation Weingarten, Labor Relations Board v. National (1975), violated employer it was held that an 420 U.S. 8(a)(1) model for our section

section of the NLRA—the 14(a)(1) for union request it denied an employee’s —when which the at an interview” “investigatory discipline. would result reasonably believed employee meetings “investiga that remediation are The ALJ found 161, 4 Pub. on Summit Hill School District tory,” relying (Ill.) 86—CA—0090—C Rep. par. No. Employee 1987). (IELRB December Hill, that, in the IELRB found

It is true Summit However, meetings “investigatory.” remediation were case, in that findings one of the IELRB’s only Hill involved ALJ Summit selectively adopted. which the union representation a tenured teacher who was denied (remediation) at postobservation meetings during held the one-year remediation period required for tenured teachers the School Code. When asked to determine whether of representation this denial was an labor unfair practice, the IELRB in Hill held: Summit Act,

“Under the Education Reform the remediation process may lead to one of two results: successful remedia discharge. process tion or One the purpose of is to alert the teacher perceived problems provide and the teacher *** one-year opportunity However, a to improve. discipline may imposed one-year at the end the of remediation period ‘satisfactory’ if the teacher has a not received or 5(i) 122, rating. better Ill. pars. Rev. Stat. and Ch. 24A— (j). words, In other attempted required remediation is a preliminary step for the alternative the result under Act, improvement Education Reform If dismissal. not shown, employee may the expect the commencement of the process, during dismissal which the of a observations undergoing teacher reports remediation and the such of may very used sup observations well be as ‘evidence’ to port Thus, may the case for district’s dismissal. a teacher reasonably some, all, fear that that at least if not [sic] post-observation may ultimately conferences lead to discharge.

Nevertheless, right we the conclude that to have representation post- as a matter law does not attach to added.) 4 (Emphasis observation ***.” Pub. conferences (Ill.) Rep. Employee par. at IX—32. The IELRB then that labor explained educational laws in do not for union provide representation Illinois in One that postobservation remediation. reason is required by conferences are the State Board of Education and, free, therefore, employer “an is not as in the private interview, sector or investigatory the usual to discontinue proceed conference postobservation to obtain Furthermore, information other “discon- from sources.” tinuance also one of the goals would undermine conference which is to discuss correct deficiencies.” that, in the IELRB concluded Summit Hill Accordingly, the right afford teacher since law did not a tenured conferences, postobservation to union exist, have right if such a was it would to be contained not. collective-bargaining but was agreement, case, found the Board’s present In the the ALJ that holding in Hill did not extend to nontenured Summit was teachers. Its rationale for this determination shorter, much period lasting remediation was from only May 1, March 1 to and that “the union *** representative Warning repeatedly requested whom her against representative protect interests and, unjust dismissal the interests of all non- similarly, tenured teachers under remediation.” The ALJ then recommended rule Board the District 14(a)(3) violated section of the Act.

The Board subsequently adopted ALJ’s recom- order, Board, mendation. written its addressing the contested engaged issue whether had protected activity, stated:

“Here, Warning engaged union activity in when she representation by invoked grievance represen- Association tative Beth Chicago Education, Wierzbicki. In Board 22 143, (IELRB, PERI No. Case April 2004 —CA—0061—C 11, 2006), the Illinois Educational Labor Relations Board (‘IELRB’) ruled that an employee engaged in union activ- ity sought when he the disciplinary union’s assistance in matters and union representatives when him accompanied pre-disciplinary meetings.” However, Board, in the cases cited the employ- the ees who were found to have in engaged activity union had a right representation. to union The never ad- Board dressed District’s claim that was Warning not in engaged protected she activity because was not entitled to union representation meetings. at her remediation Instead, the Board stated: “It for us unnecessary decide denying whether union Warning representation at post-evaluation meetings would have been an unfair practice 161, labor under Summit Hill School District A

118 (IELRB, Decem- 1009, PERI Case No. 86—CA—0090—C 1987) 420 U.S. 251 Weingarten, v. 1, and NLRB ber (1975).” that this was so because The Board reasoned that the District violated alleged “in this case it is not representation.” union by denying the Act ruling to the Board’s timely appealed The District an unfair court, that, to again arguing prove appellate 14(a)(3), imperative it was under section practice labor in protected had engaged show that she that the Board was argued further activity. The District in a Warning engaged in finding erroneous clearly right did not have because protected activity remedia- her postobservation representation to union with the disagreed court meetings. appellate tion District, stating: in Hill School holding Summit agree with “We (Ill.) n.7, 1009 No. 161, Employee Rep. par. 4 Pub.

District 1987) (IELRB CA—0090—C, December at IX—33 86— (111.) (hereinafter 1009), where Rep. par. Employee Pub. remedial postobservation that since the Board determined discharge, in a teacher’s result meetings can sometimes ‘investigatory’ not meetings such were suggestion Board that rejected. agree with the must be We activity requested when she protected in a engaged meetings with during her remedial union Community See, Georgetown-Ridge Farm Runyan. e.g., Labor Educational No. 4 v. Illinois School District Unit 428, 464, N.E.2d 667 Board, 3d App. 239 Ill. Relations by seeking (1992) activity (employeeengaged protected reduc concerning representative of union the assistance Abuzir, 22 Pub. complaint); filing tion of hours (Ill.) engaged (employee at 553 Rep. par. Employee accompanied activity representative when protected at 636- App. Ill. 3d meetings).” 392 prediseiplinary him to 37. Dis on the discussion total of the is the sum

This dissented, Garcia Justice appeal. main claim on trict’s union to have desire however, stating, “Warning’s not meetings [could postevaluation at her representation activity right into union when no such transformed] exists under the collective between bargaining agreement Education Association.” Speed District 802 SPEED (Garcia, J., dissenting). 392 Ill. 3d at 642 Justice App. that the Board had side improperly

Garcia also believed issue, stepped stating: this right represen

“Either Ms. had the to have union postevaluation meetings tation at the or she did If not. she not, did Speed ‘supervisory District 802 was well within its authority’ to restrict representation postevalu at the meetings ation App. to a nonactive role.” 392 Ill. 3d at 641 (Garcia,J., dissenting).

Now, court, before this the District find asks us to the Board and the appellate court improperly determined that Warning engaged in a protected activity when she insisted on having union at her representation meetings. remediation The District maintains —as it has from the beginning right had no to union —that her postobservation conference and re- mediation meetings Principal Runyan. Accordingly, the District contends that the Board’s decision it committed an unfair labor practice when it dismissed clearly is agree. erroneous. We

Warning, the Association and the Board continue to maintain that Warning engaged protected union activ- ity when she asked for and received union representation at her evaluation conference and postobservation reme- diation meetings. They contend, “there is no issue here of whether Warning had a right to union representation during the meetings; the make, Board did not nor did it make, have to that determination.” view, their “the District’s right-based argument comes too late because the District failed to enforce its view that Warning did not have a right representation.” Based on this rationale, they claim the rights-based District’s assertion They “irrelevant.” contend “the issue here is not whether had right to Union representation,

120 right her, that it was never denied or whether because engaged by contract, rather, once but she was waived during meetings, representation District Union doing against discharged her for so.” retaliated her and reject argument if the District did not We representa- entitled to union believe that was meetings, it should have refused tion at her remediation sought her under those conditions and then to meet with ruling on their action was an unfair labor a practice. whether imposing explained Hill, such a

As in Summit impractical, impossible. requirement if not employers, District, other does not have discre- unlike attempt to remediation and obtain tion to discontinue a fourth- from other sources. information year probationary 3—9 of the teacher and under section collective-bargaining agreement could not be dis- she performance the District reasons without missed for attempt establishing to correct at one documented least to discontinue Thus, the District was not free deficiencies. remediation. particularly with

Further, it is counterintuitive — regard remediation teachers where the to nontenured require period cor- the District to discontinue is brief—to ruling meetings a teacher on and seek a whether rective right representation. As in Sum- stated to union has goal requirement undermine the Hill, would mit such a deficien- conferences, is to correct which of remediation cies. reasonably in this situa- District acted believe the

We representa- permitted a union to have tion. It despite meetings accompany her remediation her to tive right.5 Also, we to that she was not entitled its belief that agree on insistence with Justice Garcia placed teachers were here that two other 5It should be noted Warning. Both of as plans at the same time action on corrective at representation union permitted to have teachers were these meetings union remediation having this situation into a automatically did not transform in pro- An activity. employee engages protected actions activity only employee’s tected union when right collective-bargaining invoke a under the law or the agreement. As the Association concede brief, their the United States Court concluded Supreme Disposal in National Labor Relations Board v. City (1984), Inc., “employees U.S. 822 Systems, in engage protected activity invoking when contractual rights activity because that is a direct extension collec- of tive bargaining.” bar,

In the case at that she in Warning’s proof engaged a protected activity lacking union is she has because entitled, no provided by evidence that she was either law contract, or to union at representation remediation meet- ings. Hill, As stated in Summit though even remediation meetings are “investigatory,” right the to represen- union tation and, exist, does not attach law to must be contracted through for bargaining. collective collective-bargaining agreement here does not explicitly give employees right representation to union at reme- Rather, diation meetings. our reading the contract indicates to the right us that to union representation does not attach to postobservation conferences and remedia- tion, where the possible employee action” the “disciplinary faces is performance based. this We reach conclusion based 8(F) on section of the collective-bargaining agreement, 3— which specifically provides, “Evaluative conclusions and remediation decisions are made in sole discretion of evaluating and supervisor non-grievable are and non- being so, arbitrable.” representative This a union would meetings. posi- their remediation voluntarily One teacher left her completing plan. tion without the corrective action The other completed successfully plan teacher his corrective action and had teaching his contract renewed. official to at conferences play postobservation

have no role meetings. remediation therefore, conclude, Warning prove failed to We that if was entitled to And representation. that she union right did not have a to union representation, failed to prove then and the Association insisted activity in union when she engaged her confer- having on evaluation chose to ence and remediation and when she meetings taking an assertive representative’s follow lead regard stance her evaluation and confrontational provide corrective attempts administration’s instruction. activity, there can be showing protected

Without no Warn- finding against that the District discriminated therefore, activity. find, We engaging protected ing failed prove and the Association 14(a)(3) result, of the Act. As a District violated section decision, the District committed we find Board’s when failed to renew practice an unfair labor it contract, clearly erroneous. teaching actions conclusion that the District’s light our not unfair we need practice, did not constitute an labor posi- to a tenured reinstating Warning whether consider remedy. tion was an appropriate

CONCLUSION above, the judg- stated we reverse For all reasons aside the decision appellate court and set ment of an unfair District 802 committed the IELRB SPEED Rachel when it failed to renew practice labor Board cause is remanded to the contract. The teaching this opinion. consistent with proceedings for further reversed; judgment court Appellate Labor Relations Illinois Educational aside; set Board decision remanded. cause KILBRIDE, dissenting: JUSTICE

CHIEF excep- with two analysis the dissent’s I agree discussion, I First, the unfair labor practice tions. on and Sum- application Weingarten the dissent’s believe this case. As given the facts of unnecessary mit Hill is Board, Labor Relations noted the Illinois Educational Instead, representation. was not denied union her for against the District retaliated alleged she meetings during union having representation Thus, it to decide year. unnecessary 2004-05 school at those representation whether union denying been an unfair labor under meetings practice would have Hill. Weingarten Summit hav-

Warning engaged protected activity by in union union at the as ing meetings, permitted I by the with the collective-bargaining agreement. agree representa- dissent that was entitled to union meetings teaching tion at those and her contract was not renewed based on her exercise of that The Board right. correctly determined that the District committed an unfair practice by renewing Warning’s teaching labor not contract for in Accord- engaging protected activity. ingly, join I in the dissent’s conclusion that the Board did finding not err in the District committed an unfair labor practice.

Second, analysis I with the dissent’s of the disagree remedy for the unfair labor Under the Illinois practice. Act, only

Educational Labor Relations the Board is not to order a an unfair labor empowered party committing may the unfair but also “take practice stop practice, added.) (Emphasis additional action.” affirmative (West 2004). The in fashion- purpose ILCS Board’s 5/15 unfair to “make- ing remedy practice an labor case is “ whole” the them ‘in the same parties by placing posi- tion have the unfair labor they would been had been Paxton- practice [Citation.]” not committed.’ 124

Buckley-Loda Education Ass’n v. Illinois Educational Labor Board, Relations (1999). 304 Ill. App. 3d 353 “ The Board has ‘substantial flexibility and wide discre tion to ensure that victims of unfair practices labor returned to the position that would have obtained had the illegal conduct not occurred.’ [Citation.]” Paxton- Buckley-Loda Ass’n, Education 304 Ill. App. 3d at 353- 54. The Board’s remedial orders are reviewed for abuse of discretion. Paxton-Buckley-Loda Education Ass’n, 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. Board determined reinstatement of Warning’s teaching position was the appropriate remedy for the nonrenewal of her contract teaching because it placed her in the posi- tion that would have existed had the unlawful nonre- newal not occurred. The Board certainly had the author- ity reinstate Warning’s employment following nonrenewal of her teaching fact, contract. reinstate- ment of employment was only remedy 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 probationary final If her year. employment were rein- stated, would have completed her probationary period and entered into contractual continued service (105 under section 24 — 11 School Code ILCS (West 2004)). 5/24 —11 dissent,

Contrary to the the Board had authority to order the reinstatement contract teaching with the consequence she receive tenure. Section 14(a)(3) of the Act discrimination “in prohibits regard term or condition of employment any hire or tenure or of in discourage membership or employment encourage added.) any employee organization.” (Emphasis ILCS 5/14(a)(3) (West 2004). teach- By renewing Warning’s not year at the end of her final ing probationary contract union the District protected activity, based on her *** “in regard employment.” discriminated tenure of The denial of tenure was a direct result of the nonre- Warning’s teaching newal of contract. 14(a)(3),

Under section denial of tenure based on the exercise of union protected rights is unlawful. The Board’s authority power remedy must include the unlawful deprivation of tenure based on union protected Board, activity. therefore, authority had the under the Act to order the “make-whole” of remedy reinstating Warning’s teaching contract the consequence that she receive tenure.

Further, Warning’s of tenure acquisition as a result of the reinstatement of her employment would not interfere with the legitimate District’s interest in overseeing tenure decisions. The record indicates that prior to the protected in activity case, this Warning’s performance had always been rated at least “standard” satisfactory. or Warning received “standard” or satisfactory in ratings each of her first years three of employment with the District. She received a of rating “professional,” “excellent,” and “outstanding” fall of her fourth and final probationary year. only It was after Warning was subsequently admonished about using inappropriate language with a paraprofessional and sought the assistance of a union representative ques- tions were raised about her performance. The meetings following that admonition when Warning requested union representation led to the nonrenewal of her teach- ing contract. establishes, clearly

As the dissent meetings entitled to union at those the record shows her contract was not renewed teaching based on her exercise of that The record protected right. teaching indicates contract would have if acquired been renewed and she would have tenure she an unfair labor discharged had not been based on practice.

I has a interest recognize legitimate District overseeing tenure to assure continuous service See Johnson v. Board of ability experience. teachers 61, 85 Ill. 2d Education Decatur School District No. (1981). must be 338, 344 The District’s tenure decisions considerations, on lawful however. The nonrenewal based pro was based on her Warning’s teaching contract the District does not have a activity, tected union teacher denying probationary interest legitimate Thus, unfair labor the fact practice. tenure based on an acquired through would have tenure Warning does not employment Board’s reinstatement the District’s interest legitimate interfere with tenure decisions. overseeing circumstances, I Based on these conclude reinstating its discretion in Warn- Board did not abuse employment The reinstatement ing’s employment. an There is no need for have resulted in tenure. would never the District year additional because probationary Warning’s perfor- identified concern with any legitimate confirmed view, properly court my appellate mance. appellate decision and I would affirm the the Board’s dissent. respectfully I judgment. Accordingly, court’s FREEMAN, dissenting: JUSTICE represen entitled to union I believe year. school the 2004-05 meetings during tation at the ap of the Therefore, judgment I affirm in part would (392 628), 3d which confirmed App. court Ill. pellate Illinois Educational Labor Relations Board decision of the (Board). I the Board’s determination that uphold would (District) District 802 committed an unfair labor SPEED However, it I practice Warning. disagree when dismissed Rather, remedy. with the Board that tenure is the proper year. I would restore to a final Ac- probationary I cordingly, respectfully dissent.

I. BACKGROUND The special joint agreement District is a education district of 15 member school districts that comprised their resources to education pool provide special services to students of all age grade range levels who have a employed disabilities. District as a teacher. As mandated by section 24—11 of the School Code, had a probationary period of four consecu- However, tive years. after the four-year probationary period, Warning would have entered “contractual service,” i.e., continued tenure. See 105 ILCS 5/24 —11 (West 2004).6

A. Employment Documents A collective-bargaining agreement exists between the District and the SPEED Association, Education IEA-NEA (Association Union). or The District’s evaluation and re- mediation 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. (105 6This court cites section 34—84 of the School Code ILCS (West 2004)) four-year for probationary period. this 5/34 —84 provides

Ill. 2d at 100 n.2. specifically appoint This section promotions having ments and population teachers in cities a exceeding 500,000 persons. However, expressly section 24—11 employment states: “The any program special teacher in a of a *** joint agreement education succeeding shall be under this and (West 2004). Sections of this Article.” 105 ILCS 5/24 —11 a majority opinion comprehensive

Because the omits remediation procedures recitation of the evaluation and I collective-bargaining agreement, in the discuss provisions relevant detail. agreement, captioned “Employee

Section 3—8 of the Evaluation,” “all begins by declaring that evaluations *** good shall be conducted in faith and in accordance The criteria and provisions Agreement. with the of this uniformly contained herein shall be procedures applied A teach- provides Subsection through [the District].” each formally during ers shall be evaluated at least once B “Prior provides: nontenured Subsection year. will be informed as to who will be employees October and evalua- responsible employee’s supervision for each time, and instru- procedure tion. At this the evaluation year used for the school will be reviewed and ment be complete copy receive a of the evalu- employee each shall B further provides ation instrument.” Subsection completed by of all teachers shall be evaluation March 1. A process. quali- details the evaluation

Section 3—8C through each teacher fied administrator must evaluate must hold supervisor observation. Each District personal with each teacher to discuss conference pre-evaluation dates and times for specific and to set the expectations, must conducted with Each evaluation observations. no less site observations for on-the-job not less than two The minutes for each observation. than 30 consecutive separated must be from the first second observation observation, After the first day. at least one work strengths discuss the evaluator must teacher and for additional determine the need They will weaknesses. assistance, and observations, activities, and technical completed for these activities. decide a schedule writing must be reduced formal evaluation March 1. no later than to the teacher submitted The teacher must receive a written evaluation within days five school of the final observation. Between 24 days receipt hours and five school after of the written evaluation, a take postevaluation place conference must mutually at a date and time. An agreeable evaluation specific given. should include reasons for ratings Any any unsatisfactory rating, teacher but is not who receives placed plan, provided specific on a remediation must suggestions for improvement, developed by the evaluator and the employee.

Significantly, section 3—8F “Evaluative provides: herein, procedures, subject grievance contained are to the procedure. Evaluative conclusions remediation deci- sions are made in the sole discretion the evaluating supervisor non-grievable and are and non-arbitrable.” added.) handbook, (Emphasis Section 7H of the employee Procedures,” labeled “Staff Evaluation supplements the agreement collective-bargaining as follows: “Evaluative procedures, herein, contained including those pertaining remediation, to employee subject grievance are to the added.) procedure.” (Emphasis 3—9

Section of the agreement collective-bargaining is labeled “Remediation of B provides Staff.” Subsection that nontenured teachers in third proba- or fourth will tionary year not be performance dismissed for reasons without at one least documented attempt cor- rect deficiencies. D Subsection “Remediation provides: staff for performance based shall be subject reasons not grievance arbitration.” and/or

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 representative during the Association any *** meeting which leads A disciplinary bargain- action.

ing unit may member choose which union representative present provided unreasonably it does not delay the based.”

meeting. Disciplinary performance action is not B provides a nonexclusive nonhierarchi- Subsection include: “writ- disciplinary consequences cal list of file, warning; personnel ten copy placed employee’s file in letter” with duration of time to remain in stated D the provide: and “dismissal.” Subsections and when C the disciplinary meeting, determines to hold District a be shall informed of the violation that is to employee discussed; resulting the meet- disciplinary decisions from to the writing presented shall be reduced to and ing shall be bargaining no unit member employee; for pay disciplinary or without suspended dismissed by a attempt least one documented reasons without at period with 12-month to correct the behav- a supervisor ior. sum, all evalua- the District must teacher conduct according collective-bargaining agreement, the

tions Evaluation employee the handbook. supplemented by are nongrievable. conclusions and remediation decisions However, including those pertain- evaluative procedures, remediation, Further, sec- are employee grievable. ing agreement of defines collective-bargaining 7—1A the tion the Union a a a teacher or “grievance” complaint as or “violation, misinterpretation, has a there been collective-bargaining agreement. the misapplication” of for Also, representation teacher entitled to union a the provisions These memorialize matters. disciplinary it as Union relationship between District Thus, evaluation and remediation. pertains to teacher to union is entitled whether a nontenured teacher employment meeting at an meeting is characterized depends on how the District nature the teacher’s grievance. and the District Personnel Meetings B. Warning’s With was Warning year, in the 2001-02 school Beginning high- as full-time teacher by the District employed physical school-age in its disabilities severe students with (PAL). During Learning Adaptive Program each of years, probationary from received three her first Kathy Principal evalua- an overall summative Call PAL satisfactory. During rating i.e., “standard,” tion year, Warning’s probationary year, second 2002-03 school Principal Warning’s regarding expressed concerns Call ultimately performance. an However, received rating 2002-03 school of “standard” for the evaluation employment year, contract was renewed. For the and her year, Principal gave Warning an Call 2003- school rating overall of “standard.” year school was fourth and

The 2004-05 replaced by probationary year. Principal Call was final Runyan. principal, In the fall of PAL Benoit new pursuant notified, to section 3—8B of collective-bargaining agreement, that Assistant during Principal Egan Julie would evaluate her year. observing Warning’s classroom in school After Egan “professional,” November rated as “outstanding.” “excellent,” and 8, 2004,

On December District Human Resources Clasberry Director Dr. Genevra sent a memorandum to Warning, which stated in full: Friday, 3, 2004, paraprofes-

“On December a substitute reported you inappropriate sional to me that had used Holiday I language prior with her to the break. discussed you present the incident with while the substitute was you you language did use the but it was in the stated that ‘joking.’ investigation, parapro- After further context of during inap- incident confirmed that present fessional propriate language was used. She stated that she did not anyone language feel that was directed towards or However, Runyan and I derogatory. meant to be Mr. as you in of Beth presence discussed with Wierzbicki (Union language should not representative), inappropriate setting regardless in the of the context. be used classroom Furthermore, your during is the second incident this

employment with [the District] which a substitute paraprofessional expressed concerns about the use of inap- propriate language. Runyan As Mr. and I discussed with you, this behavior is unacceptable and must be corrected immediately. Your interaction with all profes- staff must be appropriate sional and for the school setting. following are expectations you in the future: (cid:127) You will refrain using from inappropriate

language in the classroom. report Another could result in action disciplinary up to dismissal. (cid:127) You will responsible for selecting and

participating in training focusing on building your skills in interacting with adults in the school setting. You must approval receive from Mr. Runyan prior to participating. (cid:127) You will meet with Mr. Runyan and I prior to year

the end of the your school to discuss progress. *This memo your personnel will remain in the dura- file for your

tion employment [the District].” (Emphases added.) The record further indicates that Warning requested this disciplinary meeting, and that Wierzbicki on spoke Warning’s behalf. Additionally,

in a response, admitted, written explained, apologized for the inappropriate She language. concluded: “I will continue to refrain from using inappropriate language and I participate will in training sessions.” 15, 2005,

On February had her second classroom observation for the 2004-05 school year pursu- ant to section 3—8 of the collective-bargaining agree- ment. one week Approximately prior observation, to the Warning was notified that Principal Runyan, rather than Assistant Principal Egan, would conduct the observation. Principal Runyan preobservation did not hold a confer- ence with Warning contravention of section 3—8C the collective-bargaining agreement. testified Runyan’s observation lasted only approximately minutes, also violation of section 3—8C.

According 15 of the “Joint paragraph parties’ Facts,” Statement of Uncontested on March 2005: “Warning meeting Runyan had a Principal to discuss Runyan’s Warning’s recent observation of class.

requested Union representation meeting at this and was accompanied by meeting, Runyan Wierzbicki. At this provided Warning with a summative evaluation in which gave he Warning unsatisfactory rating[s] in instructional planning development, management and of instructional time, presentation feedback, instructional com- [and] professional munication responsibilities. Runyan stated in his evaluation of Warning that due to the overall rating summative unsatisfactory, it was his recommenda- tion placed plan on a to correct her Runyan deficiencies. deficiency attached a corrective plan *** to his evaluation and stated that must take by May 1, 2005, corrective Runyan actions or would recom- mend her termination. At meeting, Warning asked that Runyan Mr. separately objective rate each cited in her Runyan evaluation. denied request, stating that he would separately not objective, rate each that he was required not to do so and that he had never done so in the past. Wierzbicki responded Runyan had rated each of objectives in her [Wierzbicki’s] evaluation separately. Wierzbicki was using evaluated a different instrument than Warning. At the conclusion of the meeting, Runyan stated that Wierzbicki would not be any needed at further meet- ings. Warning responded that she wanted represen- Union Runyan tation. ‘having stated that the Union just involved makes the situation more complicated, I just would rather ” go through you giving instructions.’ Warning and Wierzbicki each testified at the administra- tive hearing. According to their testimony, Principal Run- yan’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 pro- growing described as

gressed, Runyan’s demeanor was “nervous,” and “agitated,” “impatient,” increasingly “angry.” 2005, a let- 1, Principal Runyan March sent

Also on director, Pointer, ter to Dr. the District executive Betty deficiency her that he a corrective informing presented In this meeting at the with plan Warning Wierzbicki. letter, designated in the record a “Corrective elsewhere of Plan,” identified two areas Principal Runyan Action (1) “communication with classroom concern: (2) presenta- her “instructional support personnel,” the first issue as follows: plan tion.” The described incident year had one identified “During the school we (Director Hu- [Clasberry] Dr. of discuss[ed] that was with Resource[s]) meeting it was myself. During our man incident my that this was the second brought to attention year com- inappropriate one calendar related to within you supporting paraprofessional ments directed towards a year that you during the in the classroom. I shared with your have felt intimidated support some staff members you instructor have setting. classroom As classroom modeling setting the tone and climate responsibility students and with all appropriate communications/actions building setting [sic].” members within classroom and staff the events memorial- references paragraph plainly This 8, 2004, disciplinary December Clasberry’s ized in Dr. Warning. memorandum to meet subsequent accompanied

Wierzbicki procedures debated the evaluative they where ings, who personnel, and other District Runyan Principal did not want Wierzbicki they stated consistently On 242 Ill. 2d at 104-07. meetings. at these participate gave board governing the District’s March her teach of dismissal and nonrenewal Warning notice On year. end of the 2004-05 school contract at the ing notified same Dr. Pointer day, contingent on dismissal and non-renewal “notice of Action Plan.” of the Corrective completion the successful 28, 2005, Dr. Pointer notified that her April On the District would terminate at teaching contract with cites “the year. the end of the 2004-05 school letter unsuccessful to correct deficiencies that were attempt 1, 2005, outlined in March correc [Principal Runyan’s tive See 242 Ill. 2d at 104-09. Ad deficiency plan].” ditional discussed in the pertinent background will be context my analysis of the issues.

II. ANALYSIS case, present the initial question presented is whether the District committed an unfair labor practice 14(a)(3) in violation and, of section derivatively, section 14(a)(1) of the Illinois Educational Labor Relations Act (IELRA Act) (115 (a)(3) (West 2004)). or 5/14(a)(l), ILCS so, If question next 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 Warn- ing engaged protected in a union activity when she insisted on having Wierzbicki attend the meetings at is- sue during the 2004-05 year? school The court holds that she was I disagree not. with this conclusion because the collective-bargaining agreement allowed for such repre- sentation. Having concluded that Warning was legally entitled to have present Wierzbicki at the meetings, I have no trouble accepting Board’s finding that District terminated Warning because she had in engaged protected union activity.

To properly issue, this analyze the first step is to identify situations in which parties’ collective- bargaining agreement confers the right representa- tion. 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 govern- rules ing their future relations. National Labor Relations

136 Service, Board v. United Postal 832, States 8 F.3d 836 (D.C. 1993). to union must be Rights Cir. be limited the collective- upon, may by, based v. Union R.R. Ryan See bargaining agreement. Pacific (7th 2002). Further, Co., courts 286 F.3d 459 Cir. as a whole. Inter- collective-bargaining agreements read Workers, v. Brotherhood Electrical Local 176 national (7th Club, Inc., Racing Balmoral F.3d Cir. 2002). the intent of the General As

The IELRA reflects in rights given collective-bargaining sembly protect educational employers. between teachers and agreements 14(a) employ of the IELRA educational prohibits Section “(1) restraining from, part: Interfering, ers in pertinent rights in the exercise of the coercing employees or *** (3) in Act[;] Discriminating under this guaranteed any or term or employment to hire or tenure of regard discourage or encourage condition employment (115 ILCS any employee organization” membership (a)(3) (West 2004)). paral of the close 5/14(a)(l), light 8(a) 14(a) of the IELRA and section lel between section (NLRA) (29 Relations Act U.S.C. of the Labor National 158(a) of the are (2000)), § federal NLRA interpretations the IELRA. See Ameri authority construing persuasive State, Employees, & County Municipal Federation can Board, Labor Relations State Council 31 v. Illinois State v. Burbank Il Panel, City 569, (2005); 216 Ill. 2d 579 of Board, 128 Ill. 2d 335, Labor Relations 345 linois State v. Illinois Educational Education Ass’n Wapella (1989); (1988). Board, 153, Relations 3d 161 Labor App. 177 Ill. 14(a)(1) against taken refers to adverse action Section activ- concerted any protected as a result of employee an 14(a)(3) discrimina- specifically refers ity, while section here, Where, alleged an as activity. on union tion based 14(a)(1) 14(a)(3) from and stems of sections violation 14(a)(1) to be is said conduct, violation the section same

137 14(a)(3) cases, In such derivative of the section violation. test the one to determine applied to be is used 14(a)(3) a section violation occurred. Bloom

whether School 206 v. Illinois Educational Township High District (2000) Board, Ill. App. Labor Relations 312 3d 957 (and therein). cases cited 14(a)(3)

A section violation of requires proof improper test, part motivation on the of the Under this employer. complainant must establish a prima case facie (1) proving activity that: employee engaged 14(a)(3) (2) protected by Act; section of the the employer (3) was aware of that activity; employee was discharged activity. in that Bloom engaging Town ship, 957; 312 3d App. Ill. Farm Georgetown-Ridge Community Unit School District No. 4 v. Illinois Educa Board, tional Labor Relations 239 Ill. 3d App.

(1992). Because the test of discrimination under section 14(a)(3) on turns motive and because motive is a ques tion of (City Burbank, fact 345), 128 Ill. 2d at this court is to ascertaining limited whether the Board’s find ings are against weight manifest “An of the evidence. agency’s administrative factual determinations are contrary to the weight manifest of the evidence where the opposite conclusion clearly evident.” City Belvi dere v. Board, Illinois State Labor Relations 2d Ill. (1998). 191, 204 The District that Warning contends failed to establish the first and third elements of her prima case.7 facie

7The District concedes that established the second prima element of her indisputably case. The District knew facie multiple activity. during union On occasions the 2004-05 year, Principal Runyan personally school met with representative, Also, Runyan continually her union Wierzbicki. Warning “having involved,” referred to the Union and directed bring not to her to their meet ings.

138 Protected Activity

1. Union engaged The Board found that in protected activity. activity I An in agree. employee engages union 14(a)(3) the seeks protected by employee section when 239 3d at Georgetown-Ridge, App. union assistance. Ill. (IELRB 2006) (“Abuzir Abuzir, H143 464; 22 PERI sought in when he the Union’s engaged activity union union disciplinary [and] assistance matters when him to accompanied pre-disciplinary representatives contest that meetings”). The District cannot representation multiple meetings had union at dur Runyan and other District administrators Principal year. the 2004-05 school ing this court Rejecting finding, the Board’s reasons person union in the of Wierz Warning’s representation, bicki, pro at the did not constitute meetings 2004-05 union did not have a activity tected because those I right meetings. to union at repre was entitled disagree. Whether at the with the District on meetings depended sentation and the nature of meetings how the were characterized Therefore, of a grievance. the characterization and must particular meeting legal consequences, has However, appel the parties, thoughtfully considered. dissent, majority my colleagues late court 2004-05 during loosely meetings characterize (see 242 meetings” as “remediation year variously school (see 104-09, 120), meetings” “postevaluation Ill. 2d at (see 242 111), conference” Ill. 242 Ill. 2d “evaluation meet 119, 122), remediation “postobservation 2d at (see 119), that involved meeting 2d at and a Ill. ings” 102). (see These labels 242 Ill. 2d at potential “discipline” analysis. coagulate and muddle this court’s eventually meetings defy precise characterization The fact some variety grounds, they covered wide reveals non- and some procedure, such as evaluative grievable, Moreover, remediation decisions. such as grievable, as well. discipline covered meetings fourth Warning’s year, the 2004-05 school

During with first confrontation year, her probationary and final 8, 2004, in the December is memorialized the District human Dr. District’s Clasberry, memorandum from ac- Union Wierzbicki representative resources director. The memorandum meeting. companied to dis- up action “disciplinary referred to expressly Dr. missal,” directed to meet with Clas- to the end of the school Principal Runyan prior berry Further, the memorandum year to discuss the matter. file for the personnel

stated that it would remain her the District. This mat- employment duration of employee discipline ter was treated as indisputably collective-bargaining section 3—10 of the pursuant to agreement. to the collective-bargaining

Pursuant section 3—8B of agreement, Principal Egan designated Assistant However, evaluate Warning during year. that school section, contrary was notified that Principal Runyan would conduct her second classroom evaluation. agreement,

Section 3—8F of the collective-bargaining as supplemented by employee section 7H of the hand- book, provided that evaluation conclusions and remedia- tion decisions were but nongrievable, proce- evaluation dures, including pertaining those to employee remediation, were At subject grievance procedure. to the conference, the postobservation Warning requested union and, Wierzbicki, assisted by questioned Runyan as to the evaluative appropriate procedure. that,

Warning and Wierzbicki voiced their concern as provided by collective-bargaining agreement, there violation, had been “a or misinterpretation, misapplica- provisions. Additionally, Runyan tion” of its attached to evaluation a “corrective deficiency plan,” which identified as an area of concern the disciplinary matter of December 2004.

The record clearly shows collective- bargaining agreement granted Warning the right union representation for at least First, two reasons. Warning had the right to union assistance pertaining to the separate and distinct December 2004 disciplinary Indeed, incident. plainly District intertwined matter disciplinary with her performance evaluations, which raised a procedural discrepancy justifying Warning to seek union assistance. matter, This disciplinary which ostensibly was closed in December became part and parcel of the Second, “remediation.” had certainly the right under the collective-bargaining agreement to reasonably question the other disparities or in inconsistencies the evaluative procedure imposed on her. Since evaluative procedure is a matter that grievable under the collective-bargaining agreement, it is not surprising that union representation would be wanted investigate whether in fact the evaluative procedures contained in the agreement were properly fol- lowed.

Therefore, it appears “remediation” meetings included a component that was clearly “investi- National Labor Relations Board v. J. Wein- In gatory.” Inc., garten, (1975), 420 U.S. 251 the United States Supreme Court the decision accepted of the NLRB that (29 (2000)) section 7 of the §157 NLRA U.S.C. creates a statutory right employee in an to refuse to submit without union to an interview which the employee reasonably may fears result in his or her discipline. Weingarten, 420 U.S. at 256. The Court further recognized the Board’s contours and limits on are what (1) Weingarten rights: now called commonly right the inheres in the in guarantee section 7 to act concert (2) mutual aid and the arises in protection; right only situations where the employee requests representation; (3) the must the employee reasonably investiga- believe (4) tion action; will result exercise of the disciplinary right may legitimate employer not interfere with preroga- words, tives. other the free employer is to continue the investigation interviewing without the employee, thereby leave to the the choice employee having between an interview unaccompanied by representative, or having no forgoing any interview and benefits that might (5) therefrom; be derived the employer duty has no bargain with any union who representative may be permitted to attend the investigatory interview. Id. at 256-60. held Court 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 plain within the language of section 7 that employees shall have right engage concerted activities for the purpose of mutual aid protection. or Id. (2000). 260; see §157 29 U.S.C. The Court reasoned this applies even though employee alone may have an outcome; immediate stake in the all, after employee seeks “aid or protection” against a perceived threat to his or employment security. The union representative whose participation is, the employee seeks however, safeguarding not only particular employee’s interest, but also the interests of the entire bargaining unit exercising vigilance to make certain that employer does not initiate or practice continue a imposing punishment unjustly. The representative’s pres- ence is an assurance to other in employees the bargain- ing too, unit that they, can obtain aid and if protection called upon to attend a like interview. Id. at 260-61. case, the present Warning was entitled to union

representation at the December 2004 meet- investigatory Further, Principal Runyan expressly incorporated

ing. investigatory component Warning’s this matter as a Therefore, insofar as remedia- remediation. matter, had the to this she pertained disciplinary tion representation. to union right Council, AFT, 604, Hill Local Summit Further, in (IELRB 1987), Weingarten Board found 1Í1009 PERI The Board observed that to inhere in the IELRA. rights 3(a) identical to section virtually of the IELRA is section (West 2004) 5/3(a) 115 ILCS Compare 7 of NLRA. (2000). §157 The Board then stated: “We with 29 U.S.C. 3(a) encompasses that Section of the IELRA conclude interview investigatory refuse to to an right submit employee where representation without in result might fears the interview reasonably under re- that a teacher explained The Board discipline.” some, if not that at least reasonably fear “may mediation lead to all, may ultimately conferences post-observation may oc- and take that give “Because of discharge.” deter- conference,” the Board cur at a post-observation “investiga- conferences are postobservation mined that tory” interviews.8 Hill Summit

However, presented question is entitled a tenured teacher under remediation whether conference postobservation at a to union Hill concluded Summit The Board upon request. not attach to the postobservation Weingarten rights do remediation, based teachers under conferences of tenured Reform Act of of the Education provisions on the Act Pub. 24A to the School Code. added article which (eff. (eff. Sept. 1, 1985); Act 84—972 Pub. Aug. 84—126 24A). 1985) The Board (adding 105 ILCS 5/art. “tak as 8Therefore, characterization this court’s regard to her stance ing assertive and confrontational an 122) (242 pejorative, only erroneously not Ill. 2d at evaluation” recognition. express Board contrary this also but

143 minimum role of 24A sets forth the observed that section to process, subject supplemen- the union in the evaluation through bargaining. tation of that role collective the Hill further observed that Board in Summit in that did not case collective-bargaining agreement postevaluation for union provide in Hill Consequently, conferences. the Board Summit found that the school district did not violate the IELBA the teacher’s for union by refusing request representa- during tion a conference. postobservation case,

In the the Board found it unneces present while case,9 I in sary apply Weingarten and Summit Hill this agree with the ALJ that Hill limitation of Summit does not to nontenured Weingarten rights apply teachers. noted,

As the ALJ correctly process remediation for a notably nontenured teacher is different from the process that article of the School for tenured prescribes Code teachers. For example, where a tenured-teacher evalua tion in unsatisfactory rating, results an participants the remediation include plan only not the teacher and administrator, teacher,” but also a “consulting who must be a bargaining employee. unit The union is permitted supply qualified roster teachers to serve as consult ing teachers, and a school district must select a consult teacher ing from that list. The teacher consulting helps develop plan, remediation and then advises the tenured teacher in remediation on to improve how his or teaching skills. See 23 Ill. Adm. Code 25.875. No similar provisions support exist the School Code and for nontenured In the ing regulations teachers. absence of such provisions, process remediation a nonten- alleged

9The Board reasoned: “In this case it is not that the by denying Warning represen District [IELRA] violated the union tation, against having but rather that it retaliated her for ’’ representation. governed by collective-bargaining

ured teacher is agreement. collective-bargaining agreement case,

In this did clearly unmistakably right not waive the to union postobservation representation at a conference. To the contrary, agreement, supplemented section 3—8F of the employee expressly handbook, section 7H of the provides procedures, including that evaluative those pertaining subject employee remediation, to are to the grievance procedure. meetings Warning between disciplinary the District involved as matters well as procedure, evaluative and remediation all of which Warning representation entitled to union under the collective-bargainingagreement. Additionally,the “reme- meetings clearly component diation” here had a that was “disciplinary,” unquestionably Warning which entitled to representation. enough, union If this were not the pervasive intermingling of references to “remediation” throughout year “discipline” the 2004-05 school was reasonably confusing degree to such a toas allow Warn- ing, question good Wierzbicki, in the assisted faith process, granted by collective-bargaining evaluative agreement. as the Accordingly, nontenured, her because was meetings right to union at the 2004-05 depended collective-bargaining agree- on whether right. granted clearly ment her that The record shows .right that it did. I conclude that had the representation. union Because did seek union during meetings District, assistance the 2004-05 with Warning engaged protected I activity, satisfying union would hold prima of her

the first element facie case. Motivation

2. Antiunion analysis by concluding that Warn- This court ends its prima ing the first element of her failed to establish facie I did establish this case. Because conclude that element, remaining I now elements of her analyze complaint. of for a

The third element a case viola prima facie 14(a)(3) requires of of the IELRA tion section discharged he or was employee prove she Bloom Town engaging protected activity. union ship, complainant 312 Ill. 3d 957. The must App. “ a employee’s establish that ‘the protected conduct ” motivating in the substantial or factor adverse action.’ Burbank, 128 Ill. City (quoting 2d at 345 National Labor v. Transportation Management Relations Board (1983)). Corp., 462 U.S. federal Surveying labor decisions, explained: law this court may reasonably

“Antiunion motivation be inferred from variety factors, hostility such as an employer’sexpressed unionization, together towards knowledge of the [citation], employee’s union proximity activities in time employees’ between the union discharge activities and their [citation], disparate employees pattern treatment of aor conduct which targets supporters for adverse employment [citations], action between inconsistencies proffered reason discharge for and other actions of the [citation], employer shifting and explanations for the City Burbank, discharge [citations].” 128 Ill. 2d at 346. of fact, Since motive is a question of the Board may infer discriminatory motive from either direct or circumstan- tial Id. evidence. at 345. case, the present protected union Warning’s activ-

ity seeking was union in meetings assistance with during District year. 2004-05 school Board found that has established the element of antiunion motivation for two reasons: expressed hostility and for of shifting explanations the nonrenewal Warn- ing’s findings clearly contract. Neither these errone- ous.

First, Board “Runyan found that and Dr. Pointer repeatedly expressed hostility toward Warning’s union in the form of Wierzbicki.”

activity Indeed, Runyan’s against protected animus this Principal disputed. cannot be The record is activity seriously and written statements to replete Runyan’s oral did representative that he not want union to assist at the meetings. Wierzbicki Second, shifting explana- the Board found evidence of 22, 2005, Runyan’s April tions the District’s in for actions evaluation, his final evaluation in which he written I quote recommended contract. nonrenewal the evaluation in part: relevant unsatisfactory two rating in main

“You received an Presentation and Professional areas: Instructional *** Communication/Responsibilities. There has been some improvement in the of instruction. You demonstrated area state steps align your to instruction to stan- have taken and design implementation. dards in you working plan were on the to correct deficien- [While] ability your due to lack of cies more concerns were raised late for several to You made the choice to be communicate. process in a meetings participate failed to scheduled freely. you Your ac- that enabled and me to communicate effectively ability to com- have created barriers in our tions failed tension driven and to process municate. The relationship to forward this honestly develop to a move area. *** consistently provide prepared evidence You failed inadequately prepared our requested when seemed dialog during into get open were meetings. We unable you failed to meeting During our time. the conversations of communications. The your see role in breakdown chaotic due to process cumbersome and corrective became you made. choices to be process appeared this was over there By the time improved communication. growth the area little you not met the my have Therefore it is assessment my It deficiencies. will plan to correct terms of you be terminated.” [the District] recommendation added.) (Emphases that, to the evalua- according The Board observed concerning “profes- remediate tion, failed to states communication,” the same document yet sional in the improvement had “demonstrated that contended before instruction,” the District yet of area of discharged because the Board Board, as the finder teaching abilities.” “inadequate from these discriminatory motive fact, could infer a of found that the Board Additionally, shifting explanations. refers were Runyan “choices” to which

the “actions” and to union right of her assertions Warning’s repeated collective-bargaining as representation, granted these remarks were The Board found that agreement. hostility the District’s expressed additional evidence of activity. The manifest Warning’s protected toward finding of the evidence the Board’s weight supports and, its consequently, finding antiunion motivation discriminatory a case of proved prima has facie 14(a)(3) in violation of of the IELRA. discharge 3. District’s Affirmative Defense case: complainant prima Once a establishes a facie it employer finding “the can avoid a violated by demonstrating discharged employee statute that the legitimate would have been fired for a business reason notwithstanding employer’s [Cita antiunion animus. Merely proffering legitimate tions.] a business reason employment inquiry, the adverse action does not end the for it must be determined whether the reasons advanced pretextual. suggested are bona or If the reasons are a fide litigation figment upon, or not relied then the mere were pretext inquiry. [Citation.] determination of concludes the However, employer legitimate where the advances reasons them in discharge upon for the and is found to have relied case is characterized as one of ‘dual motive’ part, then the by preponderance must employer and the demonstrate terminated employee that the wouldhave been evidence Burbank, City notwithstanding his union involvement.” 128 Ill. 2d at 346-47. 148

Accord Bloom Township, 312 960; Ill. 3d App. at Georgetown-Ridge, 239 Ill. 3d App. 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 non- renewing Warning’s contract —her alleged failure to re- mediate concerning professional communications her allegedly inadequate teaching abilities. The Board found that Runyan’s April evaluation of Warn- ing evinced the pretextual nature of the District’s as- serted reasons. The evaluation indicated that the District was not discharging Warning based on her allegedly inadequate abilities, teaching because Runyan stated in the evaluation had shown “demonstrated improvement” in the area of instruction. The Board observed that the evaluation also contained “veiled refer- ences” to Warning’s insistence that she represented be Moreover, Wierzbicki. according Board, to the “Run- yan inaccurately stated in the memorandum that Warn- ing late for several scheduled and failed to meetings provide ‘prepared evidence requested.’ when The inac- curacy of these statements demonstrates pretextual their nature.” that,

The Board also observed during 2004-05 year, school employee another was under a corrective ac- tion plan 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 representing Warning.” employees

10Thefact that other had union dur ing meetings personnel my with District underscores belief that collective-bargaining agreement entitled to such as sistance.

149 reason for its an articulated employer’s Whether question is a of fact decision is employment pretextual will decide, and its decision not be the Board the manifest against review unless it is disturbed on Burbank, 2d weight City of the evidence. See Ill. 957; 350; App. 312 Ill. 3d at Township, Bloom Further, Ill. 3d at 465. Georgetown-Ridge, App. witnesses, including

ALJ heard of several testimony Wierzbicki, was the Warning, and Dr. Pointer. It Board’s fact, function, weight the finder of to determine as credibility evidence and to assess the of the given the Chicago Marconi v. Police Pension Heights witnesses.

Board, 497, (2006); Ill. 2d Jackson v. Board 225 540 of Labor, Ill. 2d Department Review the 105 513 of of (1985); Il Regents Regency Board Universities v. of of Board, linois Educational Labor Relations 208 App. Ill. (1991). Here, 3d supports the evidence the finding Board’s that the District’s stated reasons for non- renewing Warning’s pretextual contract were and that the actually nonrenewal was the product unlawful I discrimination. would hold that the Board’s finding pretext against was not the weight manifest of the evidence. sum, the collective-bargaining agreement granted right

Warning the to union at her meet- ings with the District during the 2004-05 school year. Further, clearly the record shows that Warning was discharged for in this engaging protected activity. In nonrenewing contract, Warning’s Dr. Pointer expressly stated Warning that failed to two correct the deficiencies that Runyan 1, 2005, March Principal proffered his corrective deficiency plan. The first deficiency that Run- yan was alleged “professional communication,” which pertained matter, 2004 disciplinary December which clearly representation. allows for union The second alleged deficiency Warning’s presenta- “instructional observed, concluded

tion,” which, Runyan as the Board Warn- improvement.” had “demonstrated Warning that Wierzbicki, the assistance of ing right, had the Warning’s faith whether the format question good or “violation, misinterpretation, constituted a evaluation agreement. collective-bargaining of the misapplication” Board’s supports The manifest of the evidence weight of a prima case that established a findings facie 14(a)(3) IELRA, and that of the violation of section nonrenewing reasons proffered District’s uphold I would pretextual. Consequently, were contract the District committed Board’s determination unfair erroneous. clearly labor as not practice an Remedy

B. District’s conduct court holds that Because this my colleagues practice, an unfair labor did not constitute granting do not address whether majority in the the District remedy. Although appropriate tenure was an when it dismissed practice an unfair labor committed not the appropriate I conclude that tenure is Warning, to a final Rather, I would restore remedy. year. probationary section District violated finding

After 14(a)(1) IELRA, 14(a)(3) of the and, section derivatively, be reinstated the ALJ recommended Further, because pay. back and awarded teaching position and final of her fourth at the end Warning was dismissed that ALJ recommended year, the probationary recommended this adopted tenure. The Board granted of the members However, dissenting part, two remedy. the beyond of tenure that an award Board concluded court confirmed The appellate of the Board. authority tenure. remedy of Board, including the the the decision of 3d at 639-40. App. 392 Ill. IELRA, if the Board 15 of the to section

Pursuant practice, unfair labor an has committed party finds that a 151 the requiring the Board is to issue an order “empowered may the unfair and take party charged stop practice, added.) 115 (Emphasis additional action.” affirmative (West 2004). observed, IELRA As earlier the ILCS 5/15 NLRA, section 15 of the closely parallels including IELRA and section 10 of the 115 ILCS Compare NLRA. (West §160(c) (2000). 2004), 29 In ac with U.S.C. 5/15 NLRA, construing ap cord with federal decisions our pellate court has held that remedial of the Board orders are reviewed for Paxton-Buckley- abuse discretion.

Loda Education Ass’n v. Illinois Educational Labor Rela (1999). Board, tions 304 Ill. 3d App. court in Paxton-Buckley-Loda explained that the Board has “ ‘substantial discretion flexibility wide to ensure that victims of unfair practices labor be returned to the position that would have obtained had the conduct illegal not Therefore, occurred.’ Id. the purpose [Citation.]” the Board in fashioning remedy in an unlawful labor practice case is to order a remedy “make-whole” achieves this end. Id. at 353-54.

However, the Board has authority no respect the interpretation of the School Code. the context of NLRA, the United Supreme States Court has ob- served:

“[T]he Board has [NLRB] not been commissioned to ef- fectuate the policies single-mindedly [NLRA] of the so may wholly it ignore other equally important Congres- objectives. sional Frequently the scope Congres- entire purpose sional calls for careful accommodation of one statu- tory another, scheme to and it is not too much to demand body of an administrative it undertake this accom- modation without emphasis upon excessive its immediate Board, task.” Southern Co. S.S. v.National Labor Relations (1942). 316 U.S.

Thus, where the policies of the NLRA conflict with statute, another federal cannot ignore NLRB Rather, other statute. it must enforce the fully require- statute, ments of its NLRA, so, own must but do as 152 in minimizes of possible, impact

far as a manner the the of the other Can-Am policies its actions on statute. Board, v. Labor Relations 321 Plumbing, Inc. National (D.C. 145, 2003); McLean Trucking F.3d 153-54 Cir. see (1944) (same, States, 67, Co. v. United 321 U.S. 79-80 Commission). Interstate Commerce I conclude the reasoning, Based on this in present the case collective-bargaining agreement powers neither restricted nor conferred or expanded 24—11 of the rights section School Code. granted High See Illinois Education Ass’n Local Community District 218 v. Board Education School School of of (1975). 218, 127, 62 Ill. 2d 130-31 County, District Cook teacher explained significance This court has of tenure as follows:

“The factor in our consideration is a determi dispositive enacting legislature nation of the intent of the sections objective of 24—11 and 24—12 of the School Code. One part on the tenure is ‘to assure continuous service teacher ability experience.’ [Citation.] of teachers of and is, believe, system provide intended to continu tenure we students; degree job of ity stability provide some and ability security, affording pursue teachers the thus teach arbitrary hiring firing; attract career free from Since, experienced retain teachers. high quality; ers of however, create liabilities where none would the statutes exist, strictly in order they must be construed otherwise unduly responsibility of local not to interfere with systems.” efficiently operate the educational boards to District Education Decatur School Johnson v. Board of (1981). Ill. 2d 344 No. to order make-whole authority the Board’s Accordingly, tenure, which is a to an award of relief does not extend in the School vests 24—11 of the Code decision section District’s has set aside the the Board District. Now contract, District unlawful nonrenewal statutory exercise its given opportunity must be tenure. regarding discretion members dissented issue

The two Board who on the tenure concluded as awarding follows: remedy “The would proper this case be to reinstate year probationary for another final and order Principal that she be other than Be evaluated someone *** remedy, or Dr. Betty noit Pointer. This rather than tenure, Warning in place reinstatement with would ‘the position that have had the conduct illegal would obtained [Paxton-Buckley-Loda, App. not occurred.’ 304 3d at Ill. 353.] If had not been non-renewed on the basis of activity, her union there been would have an assessment by [the as to appropriate District] whether tenure was on grounds. Putting position other in the in which she would have been if a had decision not been made to activity non-renew her on the basis of her includes allowing such an assessment.”

I so agree would hold. Courts must uphold enforce the rights granted by collective-bargaining agree- ments. In duty, however, this fulfilling courts must be vigilant not to upon intrude the province educational as employers provided by the School Code.

III. CONCLUSION reasons, For the foregoing I would affirm in the part judgment of the appellate court, which confirmed the Board’s I would uphold decision. the Board’s determina- tion the District practice committed an unfair labor it However, when dismissed I Warning. disagree with the Board that tenure is the I proper remedy. Rather, would restore a final probationary year under the conditions in described partial Board’s dissent.

JUSTICE joins THEIS in this dissent. Dissenting Opinions Upon Denial of Rehearing KILBRIDE,

CHIEF dissenting: JUSTICE I would rehearing allow in case for all this the reasons stated Justice upon Freeman’s dissent denial of

154 addition, this should rehearing. I believe court allow remedy to consider for the rehearing appropriate unfair in this case. practice labor ap this court to address petitioners ask unfair labor contend propriate remedy practice, ing that the Board’s “make-whole” of reinstate remedy ment tenure should affirmed. I acquisition (Kil (242 agree. my noted in Ill. 2d at As dissent bride, C.J., has dissenting)), the Board wide discretion remedies in unfair labor fashioning “make-whole” Ass’n, Education Paxton-Buckley-Loda practice cases. 3d at The Board did not abuse its App. Ill. 353-54. contract Warning’s teaching discretion in reinstating I with the that she receive tenure. believe consequence deci court confirmed the Board’s appellate properly sion, its of reinstatement including remedy rehearing ap I to address employment. would allow as well as remedy practice for the unfair labor propriate upon dissent points the identified in Justice Freeman’s rehearing. denial of FREEMAN, dissenting:

JUSTICE rehearing the for petitioned and Union court reconsider its this to request this case. Petitioners court appellate of the reversing judgment decision of the Illinois Educational and aside decision setting rehearing. This Labor I would allow Relations Board. This levels. court multiple was erroneous on decision undis- legal principles, ignored dispositive overlooked Further, law to the facts. facts, and puted misapplied my colleagues have may consequences this decision Therefore, have intended. surely in the could not majority rehearing. petition I dissent from the denial of the Agreement Collective-Bargaining I. The that, claim this court overlooked Petitioners have a teacher, Warning’s right non-tenured “[a]s 155 the collec- out of deficiency plan solely arises corrective colleagues agreement.” agree. My I bargaining tive centrality of the legal overlooked the majority this Lacking in this case. collective-bargaining agreement reached a focus, this court corresponding analysis, with to settled labor law. contrary result that is and the fundamental of the NLRA policies One of the Indeed, “fundamen- of contract. it is a IELRA is freedom agreement that a collective bargaining tal principle v. Area Tulpehocken constitutes a contract.” Kozura (Pa. 2002). District, 1169, A.2d School 791 1174 Supreme recognized United States Court has of the premise” private bargain- “fundamental NLRA official over the actual terms ing any compulsion without contract, of the but governmental supervision with H.K. Porter Co. v. only bargaining procedure. Board, 99, National Labor Relations 397 U.S. 108 (1970).11Indeed, federal labor law is chiefly designed promote agree- the formation of the collective-bargaining ment and the settlement private disputes under it. (1st Co., Mulvihill v. 335 E3d 24 Top-Flite Cir. Golf 2003); Telegraph Corp., United Workers v. Western Union (3d 1985). F.2d Cir.

Correspondingly, Assembly the Illinois General has public declared that the of this state is “to policy promote orderly relationships constructive between all employees educational and their and that employers” *** may accomplished by this “overall best be policy employers negotiate bargain educational requiring organizations educational employee representing and to enter into written evidenc- employees agreements legal principle overlooked 11This court the settled that federal (NLRA) interpretation of the National Labor Relations Act is persuasive authority construing the Illinois Educational Labor (IELRA). (Freeman, J., Act 242 Relations Ill. 2d at 135-37 dissent J.) cases). Theis, ing, joined by (collecting

156 (West the result ing of such bargaining.” 115 ILCS 5/1 2004). Section 10 of the Illinois Educational Labor Rela- (IELRA) tions Act mandated that the District and the Union “confer in good faith with respect to wages, hours and other terms and conditions employment, and to execute a written contract incorporating any agreement added.) reached by such obligation.” (Emphasis 115 ILCS (West 2004). 5/10

When the District and the Union negotiated good faith subjects about such as discharge and remediation procedures, and memorialized bargain they struck in the collective-bargaining agreement, they cre ated a set of rules their governing future relations. See Gratiot v. Community Hospital National Labor Relations (6th Board, 1255, 1995); 51 F.3d Cir. 242 Ill. 2d at J.). (Freeman, J., 135-36 Theis, dissenting, joined by creating the collective-bargaining agreement, the District and the deliberately Union for bargained adjust certain ments and concessions. The agreement embodies mutual and, assent during contract, the duration of the either party should able to rely on the provisions previously bargained for during negotiation agreement. of the See Port Huron v. Education Ass’n Port Huron Area School (Mich. 1996). District, 550 N.W2d 239-40 “Accord ingly, and remedies any rights possessed by the union and the employer, parties agreement, as to the and by as employee, third-party thereof, a beneficiary ultimately primarily derive from the of the language Kozura, agreement itself.” 791 A.2d at 1174. made,

Once the collective-bargaining agreement its provisions own govern procedures resolving which arise under its terms. P.R. & Mallory Co. disputes Board, v. National Labor Relations 411 F.2d (7th 1969). Cir. Provided that the terms of a collective- do not violate or bargaining agreement conflict with law, controlling rights statute or other and remedies

157 delineated by agreement in a must be parties specific Kozura, respected. 1174; 791 A.2d at In re White Moun (N.H. Regional District, 790, tain School 908 A.2d 794 2006) (same; holding that school district violated collective-bargaining agreement regarding teacher evalu ation procedures). Therefore, “a bargain where collective ing agreement is in place, representation rights must be based upon, may by, pact.” limited Landers (1st v. National R.R. Passenger 41, 814 Corp., F.2d 47 (1988). 1987), aff'd, Cir. 485 U.S. 652

The collective-bargaining agreement case, in this “as is true in any collective bargaining agreement, represents a series of trade-offs between an employer employees reaching a mutually satisfying agreement. Courts should be loathe for a multitude of reasons to abrogate clauses in such contracts absent a pressing legal Espi- reason.” nal v. Cruises, Royal Ltd., Caribbean 629, 253 F.3d 632 (11th 2001). Cir. Because of the fundamental policy of freedom contract, the parties are generally free to agree to whatever specific they like, rules and in most circumstances it beyond is the competence of regulatory agencies or the courts to interfere with the parties’ choice. See Department the Navy, Marine Corps Base, Logistics Albany, Georgia v. Federal Labor Rela- (D.C. 1992). tions 962 Authority, F.2d 57 Cir. A court must enforce a collective-bargaining agreement as writ- ten so as to give effect to the intent of the contracting parties. A court may not “abrogate a lawful agreement merely because one of the bargaining parties is unhappy with a term of the contract and prefer would to negotiate a better arrangement.” National Labor Relations Board v. (D.C. United Service, States Postal 8 F.3d Cir. 1993).

In the present case, this only court’s reference to the dispositive significance of the collective-bargaining agree- ment is found near the end of the majority opinion, where “Warning’s proof

the court concludes: erroneously lacking protected activity she in a engaged she has no evidence that she provided because entitled, contract, representa or to union either law 242 Ill. 2d at 121. meetings.” tion at remediation Without court to concede express analysis, appears entitled could have collective-bargaining agreement meet at the 2004-05 to union However, only portion this court relies on one ings. collective-bargaining agreement. of the one section court reasons: here does not collective-bargaining agreement

“The representation give employees right the to union explicitly Rather, of the meetings. reading our at remediation right representa us that the to union contract indicates to and re conferences postobservation tion does not attach to the mediation, ‘disciplinary action’ possible where the this conclu based. reach employee performance faces is We 8(F) collective-bargaining of the sion based on section 3— conclu specifically provides, ‘Evaluative agreement, which made in the sole discre remediation decisions are sions and non-grievable and are evaluating supervisor tion of the so, representative a union being This non-arbitrable.’ play postobservation role to at have no official would at 121- meetings.” 242 Ill. 2d and remediation conferences 22. of the the relevant provisions did not consider This court agreement. collective-bargaining of the dissent, I referenced several sections In my indisputably agreement collective-bargaining the at to union right granted Ill. 2d See 242 year. the 2004-05 school meetings during J.). Theis, J., (Freeman, dissenting, joined 129-30 3—8F of section only part cited majority Significantly, That entire sec collective-bargaining agreement. of the omitted from follows, part as tion reads procedures, “Evaluative italicized: opinion majority herein, procedure. to the subject grievance are contained are decisions and remediation conclusions Evaluative in the evaluating supervisor made the sole discretion of non-grievable (Emphasis and are and non-arbitrable.” added.) Further, colleagues majority in the omit en- my handbook, section of the which tirely employee 7H as fol- supplements collective-bargaining agreement herein, lows: “Evaluative contained includ- procedures, ing pertaining remediation, those are employee subject added.) Also, to the grievance procedure.” (Emphasis section 3—10A provides that teacher is entitled to union representation for disciplinary matters. These provisions supplied justification context and Warning’s actions.

When the relevant sections of the collective- bargaining agreement are in their entirety, viewed it is clear to see where the court off goes track. Rehearing should be granted order to allow this court to apply fundamental principles of labor law to the fairly- bargained-for agreement in this case.12

II. Protected Union Activity Petitioners ask this court to reconsider its conclusion failed prove that she was engaged protected union activity because she failed prove to that she was entitled to union representation at the 2004-05 meetings. Petitioners contend that this court failed to consider numerous areas of protected activity in which Warning engaged. was Petitioners suggest that had this court considered areas, these the court would have concluded that the District discharged Warning for

12Indeed, example another oversight small of the court’s is found in the court’s erroneous citation to section 34—84 of the (105 (West 2004)). School Code ILCS 242 Ill. 2d at 100 5/34 —84 n.2; (Freeman, J., 242 Ill. dissenting, joined Theis, 2d at 127 n.6 by J.). petition rehearing, petitioners parties note: “All agree applicable [section that provi 11] is the School Code 24— Rehearing provides sion.” an opportunity to correct this.

160 activity. points engaging protected These in the union are well-taken. petition- that did not consider the actions

This court agree- collective-bargaining ers took in reliance on the contains no ment, its conclusion that the record and rights collective-bargaining is evidence of alarming. Indeed, us contains undis- the record before representa- Warning to union facts that entitled puted tion. Clasberry’s undisputed 8, December

It that Dr. matter, which entitled 2004, letter involved a disciplinary representation, Warning the letter and that to Runyan Clasberry and meet Dr. directed with disciplinary progress regarding mat to discuss her (Freeman, dissenting, J., 242 Ill. 2d at 131-32 ter. See J.). meeting joined by Also, Theis, at the March ques Runyan, Warning Principal and Wierzbicki Runyan employed to evaluate tioned the procedure meeting, Warning Warning. and At the Wierzbicki wrong Runyan format. used the contended that meeting. brought employee She and to the handbook prescribed pointed format evaluation Wierzbicki Runyan These facts are found should have used. parties’ paragraph of Uncon “Joint Statement 15 of the added) (emphasis and the uncontested tested Facts” testimony Warning and Wierzbicki. provisions

Applying of the collective- the relevant undisputed bargaining agreement record, to the facts clearly entitled to union was year. during meetings the 2004-05 school agreement collective-bargaining entitled (1) questioned her evalu she: insofar as union assistance (2) responded procedure; the December to reasonably ative (3) disciplinary confused matter; intermingling express Runyan’s of remediation (Freeman, J., disciplinary 242 Ill. 2d at See issues. J.). by Theis, Rehearing necessary dissenting, joined these that takes into account provide analysis order to an undisputed facts. Pejorative

III. Remarks that, at claim that this court overlooked Petitioners 1, 2005, meeting Principal Runyan, with the March use the request Runyan and Warning’s Wierzbicki’s out of Warning solely correct format to evaluate “arose was an exercise agreement collective and bargaining I activity.” agree. openly applying union Rather than provisions collective-bargaining agree- clear facts, my colleagues ment in the undisputed major- to on ity aspersions Warning. cast facts, of the the court its recitation disparaged 1, 2005, the March Wierzbicki’s actions at evaluation, as “Rather than

meeting follows: discuss to argue and Beth took Warning opportunity this form, Runyan (Emphasis about the evaluation itself.” added.) 242 Ill. concluding analysis, 2d 104. In their my colleagues again decried as follows: if Warning

“And did not a right representa have to union tion, Warning then and the Associationfailed prove to engaged activity in union when she insisted having on at her evaluation confer meetings ence remediation and when she to chose fol representative’s taking low her lead in an assertive and regard stance with to evaluation and confrontational the provide attempts administration’s correctiveinstruc added.) (Emphasis tion.” 242 Ill. 2d at 122. importance central of the relevant and

Knowing fairly- bargained-for provisions collective-bargaining agree of the ment, and what knowing pursuant to that sought pact, this court’s denouncement of misap its plication of the law the facts seems inappropriate *** me. The Board recognized “give has and take may occur at a post-observation conference.” See Ill. J.). (Freeman, 2d J., Theis, at 142 dissenting, joined by 162 could to this surely suppress

This court not have intended vital, teachers under Board-recognized dialogue between remediation and their employers.

Further, message the court’s was that Warn- apparent herself, for or not up should not have stood should ing to rather have Runyan, have “talked back” but should However, “minded such a is itself place.” message her employment circumstantial evidence of discrimination. II, Inc., v. 796, e.g., Coburn PN See, App’x F. 801 372 (9th 2010) com- (unpublished opinion) (employer’s Cir. back”); Jones v. For- “you ment to don’t talk employee Inc., 4:06cv00944, 2008 Dist. City Grocery rest U.S. No. (other (E.D. 2008) employees June LEXIS 48193 Ark. supervisor, to while plaintiff-employee “talked back” v. Depot, Fulmore Home “insubordination”); fired for U.S.A., Inc., cv—0797—DFH—VSS, U.S. 2006 No. 1:03— 2006) (same). (S.D. This Ind. Mar. Dist. LEXIS poten- not intended to condone surely court could have discriminatory conduct. tially Regrettably, my colleagues majority publicly exercising legal right ques- her to Warning for deprecated chastised procedure, expressly tion her evaluative rehearing I exercising right. her for believe remedy this. warranted Conclusion

IV apply construe and fairly a court to Litigants expect other contract. any as collective-bargaining agreement a however, fulfill case, court did not In the this present school contrary, public these To obligations. were harmed because reputation livelihood and teacher’s right to union fairly-bargained-for her legal, she exercised representation.13 award tenure the Board’s 13Petitioners contend that However, appropriate remedy. I continue remedy restore appropriate have been to would believe probationary year. to a final reasons, the court’s I dissent from foregoing

For the rehearing. petition denial of

(No. 108893. al., et Appel MOTORS CORPORATION GENERAL and ex lees, PAPPAS, v. MARIA Treasurer officio (General Mo County, Collector of Cook Appellant tors v. Maria Corporation, Cross-Appellant, Pap Treasurer and ex Collector of Cook pas, officio County, Cross-Appellee).

Opinion May 2011. filed

Case Details

Case Name: Speed District 802 v. Warning

Court Name: Illinois Supreme Court

Date Published: May 23, 2011

Citation: 950 N.E.2d 1069

Docket Number: 108785

Court Abbreviation: Ill.