{ "id": 4288942, "name": "SPEED DISTRICT 802, a/k/a Governing Board of Special Education Joint Agreement District 802, Appellant, v. RACHEL WARNING et al., Appellees", "name_abbreviation": "Speed District 802 v. Warning", "decision_date": "2011-02-25", "docket_number": "No. 108785", "first_page": "92", "last_page": "163", "citations": [ { "type": "official", "cite": "242 Ill. 2d 92" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "392 Ill. App. 3d 628", "category": "reporters:state", "reporter": "Ill. 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App. 3d 220", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2547668 ], "year": 1991, "pin_cites": [ { "page": "230" } ], "opinion_index": 2, "case_paths": [ "/ill-app-3d/208/0220-01" ] }, { "cite": "29 U.S.C. \u00a7160", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 2000, "pin_cites": [ { "page": "(c)" } ], "opinion_index": 2 }, { "cite": "316 U.S. 31", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 368229 ], "year": 1942, "pin_cites": [ { "page": "47" } ], "opinion_index": 2, "case_paths": [ "/us/316/0031-01" ] }, { "cite": "321 F.3d 145", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9359866, 3717564 ], "year": 2003, "pin_cites": [ { "page": "153-54" } ], "opinion_index": 2, "case_paths": [ "/f3d/321/0145-01", "/us-app-dc/355/0160-01" ] }, { "cite": "321 U.S. 67", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 301804 ], "year": 1944, "pin_cites": [ { "page": "79-80", "parenthetical": "same, Interstate Commerce Commission" } ], "opinion_index": 2, "case_paths": [ "/us/321/0067-01" ] }, { "cite": "62 Ill. 2d 127", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2970899 ], "year": 1975, "pin_cites": [ { "page": "130-31" } ], "opinion_index": 2, "case_paths": [ "/ill-2d/62/0127-01" ] }, { "cite": "304 Ill. 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App'x 796", "category": "reporters:federal", "reporter": "F. App'x", "case_ids": [ 5769848 ], "year": 2010, "pin_cites": [ { "page": "801", "parenthetical": "unpublished opinion" } ], "opinion_index": 4, "case_paths": [ "/f-appx/372/0796-01" ] }, { "cite": "2008 U.S. Dist. LEXIS 48193", "category": "reporters:specialty_lexis", "reporter": "U.S. Dist. LEXIS", "year": 2008, "pin_cites": [ { "parenthetical": "other employees \"talked back\" to supervisor, while plaintiff-employee fired for \"insubordination\"" } ], "opinion_index": 4 }, { "cite": "2006 U.S. Dist. LEXIS 22909", "category": "reporters:specialty_lexis", "reporter": "U.S. Dist. LEXIS", "year": 2006, "pin_cites": [ { "parenthetical": "same" } ], "opinion_index": 4 } ], "analysis": { "cardinality": 2614, "char_count": 132386, "ocr_confidence": 0.827, "pagerank": { "raw": 6.36863391241863e-08, "percentile": 0.39021522104184453 }, "sha256": "10bf9dab26e54fb3afd1fcf978cc26eb01f4533ac45d55f94045ed766efb5b21", "simhash": "1:7baea14748214834", "word_count": 20337 }, "last_updated": "2023-07-14T21:25:04.106829+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "SPEED DISTRICT 802, a/k/a Governing Board of Special Education Joint Agreement District 802, Appellant, v. RACHEL WARNING et al., Appellees." ], "opinions": [ { "text": "JUSTICE BURKE\ndelivered the judgment of the court, with opinion.\nJustices Thomas, Carman, and Karmeier concurred in the judgment and opinion.\nChief Justice Kilbride dissented, with opinion.\nJustice Freeman dissented, with opinion, joined by Justice Theis.\nChief Justice Kilbride dissented upon denial of rehearing, with opinion.\nJustice Freeman dissented upon denial of rehearing, with opinion.\nOPINION\nOn January 8, 2008, the Illinois Educational Labor Relations Board (IELRB or the Board) issued a decision, finding that SPEED District 802 (the District) violated section 14(a)(3) and, derivatively, section 14(a)(1) of the Illinois Educational Labor Relations Act (115 ILCS 5/14(a)(l), (a)(3) (West 2004)), when it failed to renew the teaching contract of Rachel Warning (Warning), a nontenured probationary teacher, at the end of the 2004-05 school year. The decision of the Board was affirmed in a divided opinion by the appellate court. See 392 Ill. App. 3d 628. We granted the District\u2019s petition for leave to appeal and now set aside the Board\u2019s decision and reverse the appellate court judgment.\nBACKGROUND\nThe following facts are taken from the record and transcripts of the hearing before the administrative law judge.\nWarning began working as a special education teacher for SPEED District 802 in the 2001-02 school year and was assigned to teach a class of severely physically handicapped teenage students. With regard to this first school year, Warning\u2019s personnel file contains only Warning\u2019s annual evaluation, which shows she received an overall rating of \u201cStandard.\u201d\nDuring the following 2002-03 school year, however, a number of concerns surfaced regarding Warning\u2019s performance. Warning\u2019s personnel file contains a letter of reprimand, dated October 2, 2002, indicating that Warning was admonished for failing to notify the principal or other administrator before she sent a teaching assistant home due to his misconduct. Warning was advised that she did not have the authority to take this type of disciplinary action on her own and, in doing so, her actions denied the administration the opportunity to assess and document the situation firsthand.\nAlthough Warning again received an overall rating of \u201cStandard\u201d in her annual evaluation, dated January 31, 2003, she received a number of \u201cunsatisfactory\u201d ratings in individual performance objectives, as well as some \u201cexcellent\u201d ratings and comments. The objectives in which she received poor ratings were: \u201cEffectively manages the instructional team,\u201d \u201cInteracts effectively with co-workers,\u201d and \u201cExhibits professionalism and is a role model for other teachers and students.\u201d In the recommendation section of the evaluation form, Principal Call wrote:\n\u201cWhen it comes to the personnel working using a trans-disciplinary approach, that is not evident through many different observations. We have discussed concerns with the support staff regarding a comfort level in the classroom.\n^ \u00cd\nYour relationships with your classroom staff have been negative and strained this year. Earlier in the (school) year you made decisions about one of your assistants which were not within your role. When you were asked for follow up information on this situation, you did not follow up.\u201d\nIn response, Warning wrote on the evaluation form:\n\u201cI have requested from administrator and support staff for help in all matters but still this whole situation seems to be blamed on me.\u201d\nAttached to the 2002-03 evaluation was a memorandum, also dated January 31, 2003, and written by Principal Call. It stated, in part:\n\u201cThis afternoon we met to hold the post-conference meeting for your final evaluation. At this meeting the discussion centered on the concerns I have regarding your relationship and interactions with your support staff. I reviewed with you these areas and talked about how you need to be more effective in managing your classroom team. It is your responsibility to model and demonstrate for your assistants how they should be responding to support staff.\nYou received your copy of the evaluation on the morning of January 30, 2003. That morning, after receiving the evaluation, you approached the Speech Pathologist (in front of other staff) and blamed her for your unsatisfactory ratings. Your actions caused this person to be found in tears in the hall by several other staff members. You also addressed another one of your support staff members that same morning in such a negative manner that she told you that she was not going to be able to assist you on a field trip.\nYour reaction to the evaluation and interactions with the staff following demonstrated unsatisfactory behavior. At this post conference I discussed with you the need for you to develop a plan of what you will do to address the concerns that have arisen related to teaming in your classroom. You told me that you didn\u2019t know what to do and wanted me to help you with this. I again explained that I wanted you to come up with a plan and then we can discuss it. You asked me what happens if you do not come up with a plan, will I fire you. I told you that I had not said anything about firing you.\u201d\nWarning submitted a written response to the memorandum, stating:\n\u201cThe areas I was evaluated in unsatisfactorily seem unfair. I was unaware of the support staff avoiding my classroom and not feeling comfortable until the administrator made me aware of the personality conflict with an assistant in my classroom. (I was disappointed that the chain of communication was not followed. The support staff should have communicated their concerns to me first.) I was then directed to communicate this to my assistant and try to make the classroom atmosphere more comfortable for the support staff. I was directed to start documenting concerns. I had no concern in regards to my assistants other than in the beginning of the year. Since then everything has been excellent and I saw no need for further action.\n***\nI feel my attempts to communicate and be a team member are belittled and or not considered. I feel the support staff does not respond to my attempts to communicate and then it seems as if I am rated poorly for the personality communication problems.\u201d\nWarning was given another memo from Principal Call several months later, on May 12, 2003. This memo provided Warning, once again, with written notice of concerns the administration had regarding Warning\u2019s dealings with her support staff. The document also served to memorialize a conference meeting that had been held earlier that day and was attended by Warning, Principal Call, an Occupational Therapist (OT) named Robin, and two other members of Warning\u2019s support staff. The purpose of the meeting was to discuss Warning\u2019s interference in Robin\u2019s decisionmaking regarding scheduling of \u201cmake-up\u201d therapy time with a student. Warning was advised that she did not have the authority or responsibility to assess another professional staff member\u2019s performance. Warning was advised that she was the only teacher who had any problems dealing with Robin and, in the future, if she had any concerns regarding a staff member\u2019s performance, she should direct her concerns to the administration rather than the staff member. Also, Warning was advised that she had acted improperly by discussing her staff concerns with a parent.\nThe memo also reprimanded Warning for her behavior during the meeting. According to the memo, Warning and one of her assistants were rolling their eyes and nudging each other on the leg when certain comments were made by Robin or the principal. The memo advised Warning that she was expected to act more responsibly and professionally, and reminded her that she would be unable to meet the needs of her students if \u201cthe environment [in her classroom] is so tense that the support staff does not want to work in your room.\u201d\nIn closing, Principal Call noted that, since the team meeting conducted earlier in the year, there had been \u201clittle or no improvement\u201d in the situation in Warning\u2019s classroom and that Warning\u2019s interactions with her support staff was having a negative impact on her performance as a professional. Principal Call asked Warning to develop a plan on how she could improve the situation in her classroom. Principal Call commented that this was the second request for such a plan and she stated, \u201cIn developing this plan, you want to take time and look at what you need to do, not what others need to do.\u201d Warning was also advised that her classroom behavior would continue to be monitored for the remainder of that school year and the next.\nWarning responded to this memo largely by denying that her behavior with regard to Robin had been improper. Warning also denied rolling her eyes or nudging her assistant. In addition, Warning expressed her belief that, since the earlier team meeting, \u201ceverything had improved tremendously.\u201d Warning made no response to Principal Call\u2019s request that she develop a plan to improve the atmosphere in her classroom. Instead, she provided a list of \u201cconcerns\u201d she had regarding Robin, mentioning three or four instances when, in Warning\u2019s view, Robin had not acted as a team player in her classroom.\nIn another memo dated May 20, 2003, Principal Call documented the fact that Warning failed to show up for a scheduled meeting to discuss the plan she had been directed to develop on improving staff relationships in her classroom. The memo indicated that Principal Call contacted Warning to remind her of the meeting and when Warning finally arrived at Principal Call\u2019s office, she had not prepared a written plan. Moreover, Principal Call noted that when she asked Warning if she had any ideas on how she could improve her classroom atmosphere, Warning \u201cwith a smile on her face\u201d responded, \u201cI am going to continue to do an excellent job as I have done in the past.\u201d\nPrincipal Call also noted that Warning had acted unprofessionally after receiving the earlier memo and she advised Warning that she should take seriously the concerns that were being addressed with her, particularly in light of the fact that one of Warnings\u2019s assistants had filed a complaint with the State Board alleging that students in her classroom were not getting all the services they required. As a result of that complaint, Principal Call needed Warning to supply copies of her lesson plans for that school year in addition to supplying a plan on how she could improve her interactions with staff members.\nWarning\u2019s response to Principal Call\u2019s May 20, 2003, memo, dated May 22, 2003, purports to be Warning\u2019s plan for improving her relationships with her staff. The document indicates that it is the third plan submitted by Warning due to the fact that others had been \u201crejected.\u201d This plan, however, did not contain any ideas on how Warning might improve her relationships with her staff. Instead, it simply listed things Warning agreed to do or \u201ccontinue\u201d to do. For example, the first item provides:\n\u201c1. Will continue to communicate with all SPEED Team members by: (a) By [sic] a plan developed and agreed upon by all members of the SPEED Team.\u201d\nThe last two items on the list provide:\n\u201c6. Per your request (Kathy Call), Teacher will not monitor support staff minutes.\n7. Per your request (Kathy Call), I will decrease my jovial demeanor and be more serious.\u201d (Emphasis in original.)\nThe next item in Warning\u2019s personnel file is her evaluation for the 2003-04 school year, Warning\u2019s third probationary year. The evaluation form, dated January 26, 2004, was completed by Principal Call and, once again, gave Warning an overall rating of \u201cStandard.\u201d In her comments, Principal Call commended Warning for making \u201cgreat strides\u201d in implementing suggestions that had been made and for taking \u201ca great step in the direction of creating a positive environment\u201d in her classroom. The evaluation indicates that Warning was given all new assistants for this school year and \u201con several occasions\u201d Warning had sought help directly from Principal Call to work out a plan that would allow these new assistants to be more actively involved in the lesson plans. Principal Call encouraged Warning to continue the practice of seeking help in areas of need.\nPrincipal Call also advised Warning in the evaluation that she needed to be more consistent in her data collection in order to provide a better measure of her students\u2019 progress. She noted, too, that Warning needed to implement different activities to keep her students engaged when they were not working directly with a staff member.\nThe following 2004-05 school year was Warning\u2019s fourth year as a probationary teacher for SPEED District 802. On November 16, 2004, Assistant Principal Julie Egan conducted an initial observation of Warning\u2019s classroom for that school year. Egan described Warning\u2019s classroom as \u201cwarm and supportive\u201d and gave Warning high grades for her \u201cpositive and caring connections\u201d with the students, her motivation of the students, and her management and organization of the classroom in regard to providing space and interesting activities for the students. However, Egan suggested that Warning \u201ccontinue to have open communication\u201d with her team and \u201cconsider meeting daily\u201d with them so they could discuss the monthly units and the needs of each student. Also, similar to comments in Warning\u2019s evaluation a year earlier, Egan reminded Warning that she must prepare written daily lesson plans and that she needed to find a means of monitoring and recording student progress.\nThe next entry in Warning\u2019s personnel file is a memo from Dr. Genevra Clasberry, director of Human Resources, dated December 8, 2004. The subject line reads: \u201cAttempt to Correct Deficiencies\u201d and the body of the memo explains that on December 3, 2004, a paraprofessional had reported Warning for using inappropriate language. The memo memorializes a meeting that was held with Warning, which was also attended by the new principal, Ben Runyan, and a union representative, Beth Wierzbicki. The memo indicates that Warning admitted at the meeting that she had used improper language, but commented that she had only been \u201cjoking.\u201d\nIt was noted in Dr. Clasberry\u2019s memo that the current incident was the second time during that school year that a paraprofessional had reported Warning for inappropriate language. Warning was advised that her conduct was unacceptable and that her language had to be corrected. Warning also was advised that further incidents could result in discipline \u201cup to dismissal.\u201d To remedy the problem, Warning was told that she would be required to participate in training focused on building interpersonal skills.\nIn Warning\u2019s response, dated December 15, 2004, she implied that her use of improper language was not serious because she had been talking to an adult outside the classroom setting. Further, Warning wrote:\n\u201cThis behavior was corrected immediately and My [stc] apology was accepted. According to the hierarchy in the chain of command, the situation was taken care of between the individuals. And was also at the time stated by the paraprofessional that it was not a situation that needed to be addressed. This should have gone no further (which was two weeks later) and blown out of proportion. The situation had been resolved.\nI am a respectable and professional individual.\nI will continue to refrain from using inappropriate language and I will participate in training sessions.\u201d\nIn addition to the above-quoted response, Warning submitted a memo in which she describes various behaviors of the paraprofessional who had reported her inappropriate language. It appears Warning believed that the paraprofessional reported her in retaliation for incidents that had occurred in the classroom between October and November of 2004.\nIn February 2005, Warning had her second classroom observation for that school year. This observation was conducted by Principal Runyan. Following the observation, Principal Runyan completed Warning\u2019s evaluation, gave a copy to Warning, and scheduled a meeting for March 1, 2005, to review and discuss the evaluation with her. The evaluation that was given to Warning rated her \u201cUnsatisfactory\u201d in four of seven categories, giving her an overall rating of \u201cUnsatisfactory.\u201d In the commentary at the end of the evaluation, Principal Runyan wrote:\n\u201cRachel, during the school day the students in your classroom need to be actively engaged in more instructional activities. From my observations there appears to be a lot of unengaged and misuse of instructional time. You\u2019ve had several encounters over the last couple of years in reference to inappropriate communication with team members. Recommendations have been made from previous counseling sessions with Dr. Clasberry and me to address the inappropriate comment issues. As a supervisor of paraprofessionals it is your responsibility to maintain poise, tact and professionalism in both oral and written communication. Due to the overall summative rating of unsatisfactory, it is my recommendation to Dr. Pointer, Executive Director of SPEED, that you be placed on a plan to correct deficiencies to work on the four unsatisfactory domains in this evaluation. Please find attached a corrective deficiency plan. Immediately upon receipt and review of the plan, corrective actions must take place by May 1, 2005, or recommendation for your termination will be presented to Dr. Pointer.\u201d\nAt the scheduled March 1, 2005, meeting, Principal Runyan planned to review the evaluation with Warning and discuss with her the \u201cCorrective Action Plan\u201d that he developed. The plan identified two main areas of concern regarding Warning\u2019s performance: her communication with classroom support staff and her \u201cinstructional presentation.\u201d The plan indicated that Warning\u2019s classroom presentation lacked \u201cconsistency, student engagement, and fails to meet the standards and expectations of best practice approaches within the identified group of students.\u201d The plan indicated that Runyan and Warning would meet biweekly for remediation and, initially, required Warning to complete two tasks: (1) utilize a resource guide and certain identified strategies (previously presented to her by Principal Runyan) to develop and put into practice a plan to improve communication with staff; provide evidence that team meetings are being conducted and of any other methods used to accomplish the goal; (2) produce evidence of weekly lesson plans and themes, documenting the amount of time each student is engaged in \u201cstandard-based instruction.\u201d\nFor the March 1, 2005, evaluation conference, Warning brought with her a union representative, Beth Wierzbicki. Rather than discuss the evaluation, Warning and Beth took this opportunity to argue with Runyan about the evaluation form, itself. They insisted that Runyan was required to rate each of the subcategories contained within the main evaluation domains. Runyan, however, asserted that the collective-bargaining agreement did not require him to rate the individual subcategories and that he would not do so since the evaluation clearly indicated the areas of concern regarding Warning\u2019s deficiencies.\nAt the close of this meeting, Principal Runyan told Beth that her services would no longer be necessary at subsequent remediation meetings. Warning objected and Beth asserted the position that Warning was entitled to union representation because Warning\u2019s job was on the line. Principal Runyan, however, expressed his belief that representation was neither necessary nor required at performance-based meetings.\nThe next scheduled meeting between Warning and Principal Runyan was set for March 4, 2005. Beth accompanied Warning and, according to notes Beth took, they again spent much of the time during this second meeting requesting additional clarification as to the specific performance objectives in which Warning was rated unsatisfactorily. Beth\u2019s notes indicated that she and Warning debated with Runyan on the requirements of the Illinois Learning Standards. Also, Warning tried to demonstrate to Principal Runyan how her lesson plans were based on the Learning Standards, as well as her students\u2019 IEPs (Individual Education Plans). Beth noted that, at one point during the meeting, Principal Runyan received a phone call. Beth then directed Warning to retrieve her lesson plans and the Illinois Assessment Book from her classroom. Upon her return, Beth and Warning debated further with Principal Runyan over the application of the learning standards. Warning also tried to compare herself to other teachers, asserting that she had spoken to other teachers at the school and, in her opinion, they were not using the learning standards she was now being required to implement. When this happened, Principal Runyan complained that the remediation process was becoming much too cumbersome and that Beth should not be present at future meetings. Runyan believed that with Beth present the focus remained on the evaluation procedure and general standards, preventing them from working on Warning\u2019s personal corrective action plan. Principal Runyan told Warning that he just wanted her to complete the corrective action tasks that he had assigned her.\nSometime after the March 4, 2005, meeting, Principal Runyan ran into Warning in the hall. He asked to meet with her briefly and Warning agreed and they went to Runyan\u2019s office. There, Principal Runyan tried to explain to Warning why he was not going to allow Beth to be a part of the remediation meetings anymore. Warning, however, said she would refuse to meet without representation and began to read from her union card. Principal Runyan became upset, jumped up from his chair and, in a loud voice, said, \u201cI don\u2019t care what the card says.\u201d Warning responded that she did not have to take this treatment and walked out of the meeting.\nOn March 9, 2005, Principal Runyan visited Beth\u2019s classroom and asked to speak with her. He told Beth that he did not hold anything against her personally, nor was he against the union, but that he had discussed the situation with Dr. Pointer, executive director of SPEED, and they had agreed that union representation was not appropriate at Warning\u2019s remediation meetings. Beth disagreed and asserted the position that, because Warning might be subject to dismissal, she had a right to union representation. Beth admitted that Principal Runyan acted professionally when speaking with her. He also conceded that, as a new principal, he was somewhat unfamiliar with the rules concerning the right to union representation. Nevertheless, he maintained that union representation in this situation was neither appropriate nor necessary.\nAfter this meeting, Beth wrote a memo to Principal Runyan, dated March 17, 2005, asserting the position that Warning was entitled, by the collective-bargaining agreement and her Weingarten rights, to have representation of her choice, if she requests it. The next day, March 18, 2005, Beth accompanied Warning to her next scheduled remediation meeting. When they arrived at Principal Runyan\u2019s office they saw that Dr. Pointer was present. Dr. Pointer was quite upset and began the meeting by advising Beth that she would no longer be permitted to attend Warning\u2019s remediation meetings. According to notes Beth took of the meeting, Warning became emotional and expressed her belief that \u201cthings were very negative against her\u201d and that she felt she needed the support of Beth\u2019s representation because she really felt like she was going to be terminated, and she still did not understand why because her performance had not been substandard prior to that.\nAs the meeting progressed, Dr. Pointer countermanded herself and agreed to permit Beth to attend Warning\u2019s remediation meetings. However, this permission was contingent on Beth\u2019s promise to act as a mere observer during the meetings. In other words, Beth was not permitted to speak or participate in the meetings, communicate with Warning during the meeting, or answer any questions directed at Warning. In fact, Beth was told that if she tried to participate in the meeting in any way, Principal Runyan was instructed to have her removed from the meeting.\nOn March 22, 2005, Principal Runyan held another remediation meeting to make up for the March 18 meeting that had been taken up discussing Beth\u2019s participation. Beth attended this meeting and, according to her notes, Principal Runyan used this time to review Warning\u2019s lesson plans with her. Runyan also discussed with Warning the methods she used in her classroom, as well as her communication with staff and assignment of duties to peer professionals. According to Beth, Principal Runyan appeared to be satisfied with Warning\u2019s lesson plans and the information she provided to him. He then gave Warning a reading assignment \u2014 to read a chapter from a book that Principal Runyan had shown Warning. When Principal Runyan indicated that he would need the book back, Warning immediately became upset and demanded to know how she was going to read a 53-page chapter without access to the book. Beth noted that she interceded, suggesting that Warning photocopy the chapter.\nBeth also reported that during the March 22, 2005, meeting, Principal Runyan broached the subject of Warning\u2019s past difficulties in \u201cgetting along with people.\u201d Immediately, Warning became defensive and wanted to know specifics, stating that she was \u201cnot familiar with what he was talking about.\u201d When Principal Runyan mentioned a particular situation involving a parent, Warning denied there had been a problem, explaining that the parent did not speak English and, for that reason, she told the parent to speak with the social worker, who spoke Spanish.\nBecause of notice requirements under the collective-bargaining agreement, Warning was given a \u201cnon-renewal letter\u201d dated March 24, 2005, informing her that her teaching contract would not be renewed for the following year due to performance reasons. However, Warning was also advised by Dr. Pointer that her contract might still be renewed if she successfully completed the corrective action plan.\nOn March 31, 2005, Principal Runyan sent a memo to Warning indicating, once again, that Beth would not be permitted to attend her corrective action plan meetings. In a letter to IEA UniServ Director Janet Zitzer, dated April 6, 2005, Dr. Pointer explained the reason for Principal Runyan\u2019s renewed decision to exclude Beth\u2014 although Beth had previously agreed to act as a mere observer at the remediation meetings, Beth had, once again, begun to \u201cinsert\u201d herself into the discussions \u201cin a different way.\u201d Specifically, because Beth had agreed not to speak at the meetings, she began passing notes back and forth with Warning. Also, using her body language \u2014 such as nodding and shaking her head \u2014 she made her feelings known to Warning. Dr. Pointer wrote in the letter that she considered Beth\u2019s behavior to be \u201cinsubordinate,\u201d \u201cmanipulative,\u201d and \u201cunacceptable.\u201d After meeting with Warning and Beth one final time on April 21, 2005, Principal Runyan prepared a written evaluation dated April 22, 2005, informing Warning that he was recommending that the District not renew her contract. He noted that, although she had made \u201cdemonstrated improvement\u201d in the area of instruction, there had been little growth in the area of communication. Principal Runyan wrote:\n\u201cDuring the time span you were working on the plan to correct deficiencies, more concerns were raised due to your lack of ability to communicate. You made the choice to be late for several scheduled meetings and failed to participate in a process that enabled you and me to communicate freely. Your actions have created barriers in our ability to effectively communicate. The process was tension driven and failed to honestly develop to a relationship to move forward in this area.\nDuring the planning time I had to present requests to you in verbal and written format. You failed to consistently provide prepared evidence when requested and seemed inadequately prepared for our meetings. We were unable to get into open dialog during our meeting time. During the conversations you failed to see your role in the breakdown of communications. The corrective process became cumbersome and chaotic due to the choices you made.\u201d\nHaving determined that Warning\u2019s overall performance remained unsatisfactory, Warning was advised on April 28, 2005, that her teaching contract would terminate at the end of that school year.\nIn August 2005, Warning and the SPEED Education Association, IEA-NEA (the Association), filed an unfair labor practice charge with the IELRB against SPEED District 802. The complaint alleged that the District dismissed Warning \u201cin retaliation for Warning\u2019s insistence on having a fellow employee and Union representative assist her in defending herself against the possibility of adverse employment actions.\u201d In a subsequent \u201cPosition Statement,\u201d the plaintiffs elaborated, stating: (1) Warning had insisted upon having union representation at all of her meetings with the administration of SPEED District 802 from December 2004 through the spring of 2005 and this was a protected activity because she had the right to union representation at these meetings pursuant to both the Illinois Educational Labor Relations Act and the collective-bargaining agreement, (2) that the District was aware that Warning was asserting a right to union representation at the meetings she had with the administration, and (3) that the District was hostile toward Warning because she exercised her rights and, ultimately, took adverse action against her, i.e., did not renew her contract, because she exercised her right to have union representation accompany her to her remediation meetings with the District.\nThe parties presented witness testimony and other evidence at a hearing held before an Administrative Law Judge (ALJ) on November 28, 2006. In April 2007, the ALJ issued a recommended order, finding that the District had violated section 14(a)(3) and, derivatively, section 14(a)(1), of the Act (115 ILCS 5/14(a)(l), (a)(3) (West 2004)). As a result, the ALJ recommended that Warning be reinstated to her teaching position and awarded back pay. Also, because the dismissal had come after Warning\u2019s fourth probationary year, the ALJ recommended that she be granted tenure.\nThe IELRB adopted the findings and recommendations of the ALJ. Two members of the Board, however, did not agree that awarding Warning tenure was a proper remedy.\nThe District then appealed the decision of the IELRB to the appellate court. In a divided opinion, the appellate court affirmed. 392 Ill. App. 3d 628. Justice Garcia dissented. He believed that Warning had no right to union representation at her postevaluation meetings and, thus, he did not believe the evidence supported a finding that the District discriminated against Warning as a result of union activity. But, even if the evidence did support a finding that the District had violated the Act, Justice Garcia believed that granting tenure was an inappropriate remedy.\nThe District filed a timely petition for leave to appeal with this court pursuant to Supreme Court Rule 315(b), and we granted the petition. In addition, the Illinois Association of School Boards and the Illinois Association of School Administrators were permitted to file an amicus brief in support of SPEED District 802, and the Illinois Federation of Teachers was permitted to file an amicus brief in support of Warning and the Association.\nANALYSIS\nStandard of Review\nWhat we must decide in this case is whether the IELRB correctly determined that SPEED District 802 violated section 14(a)(3) and, derivatively, section 14(a)(1) of the Illinois Educational Labor Relations Act (the Act), when it did not renew the teaching contract of Warning, a nontenured, probationary teacher. The standards by which we review the findings and decision of the IELRB are not in dispute. The parties agree that judicial review of an IELRB decision is governed by the Administrative Review Law (735 ILCS 5/3 \u2014 101 et seq. (West 1994)) and extends to all issues of law and fact presented by the record. City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 204 (1998). On issues of law, we review the Board\u2019s findings de novo; while findings on issues of fact are deemed prima facie correct unless they\nare against the manifest weight of the evidence. City of Belvidere, 181 Ill. 2d at 204-05. Further, as we stated in Board of Trustees of the University of Illinois v. Illinois Labor Relations Board, 224 Ill. 2d 88, 97-98 (2007):\n\u201c[T]he clearly erroneous standard of review is proper when reviewing a decision of the IELRB or the ILRB because the decision represents a mixed question of fact and law. [Citation.] An agency decision will be reversed because it is clearly erroneous only if the reviewing court, based on the entirety of the record, is \u201c \u2018left with the definite and firm conviction that a mistake has been committed.\u2019 \u201d [Citation.] While this standard is highly deferential, it does not relegate judicial review to mere blind deference of an agency\u2019s order.\u201d\nSections 14(a)(1) and 14(a)(3) of the Act\nIn the case at bar, the Board decided that the District violated section 14(a)(3) and, derivatively, section 14(a)(1) of the Act (115 ILCS 5/14(a)(l), (a)(3) (West 2004)). Section 14, entitled \u201cUnfair Labor Practices,\u201d provides in pertinent part:\n\u201c(a) Educational employers, their agents or representatives are prohibited from:\n(1) Interfering, restraining or coercing employees in the exercise of the rights guaranteed under this Act.\n(3) Discriminating in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any employee organization.\u201d 115 ILCS 5/14(a)(l), (a)(3) (West 2004).\nIt has been held that section 14(a)(1) refers to adverse action taken against an employee as a result of any protected concerted activity, while section 14(a)(3) refers specifically to discrimination based on union activity. See Bloom Township High School District 206 v. Illinois Educational Labor Relations Board, 312 Ill. App. 3d 943, 957 (2000). Where, as here, an alleged violation of sections 14(a)(1) and 14(a)(3) stems from the same conduct, the section 14(a)(1) violation is said to be derivative of the section 14(a)(3) violation. Bloom Township, 312 Ill. App. 3d at 957. In such cases, the test to be applied is the one used to determine whether a section 14(a)(3) violation occurred. Bloom Township, 312 Ill. App. 3d at 957. A prima facie case of a section 14(a)(3) violation requires proof that the employee was engaged in activity protected by section 14(a)(3); that the District was aware of that activity; and that the employee was discharged for engaging in that protected (union) activity. Board of Education, City of Peoria School District No. 150 v. Illinois Educational Labor Relations Board, 318 Ill. App. 3d 144, 150 (2000). The third part of the test is established if the employee\u2019s protected activity was a substantial or motivating factor for the discharge or other adverse action taken against the employee. Hardin County Education Ass\u2019n v. Illinois Educational Labor Relations Board, 174 Ill. App. 3d 168, 174 (1988). Since motive is a question of fact, a Board\u2019s finding as to motive can only be set aside if it is against the manifest weight of the evidence. City of Burbank v. Illinois State Labor Relations Board, 128 Ill. 2d 335, 345 (1989); Bloom Township, 312 Ill. App. 3d at 957. However, even if a prima facie showing has been made, there can be no finding that an unfair labor practice occurred if the employer can demonstrate, by a preponderance of the evidence, that the adverse action would have occurred notwithstanding the protected activity. City of Burbank, 128 Ill. 2d at 346; Board of Education, City of Peoria School District No. 150, 318 Ill. App. 3d at 150.\nIn the case at bar, the District challenges the Board\u2019s decision that it committed an unfair labor practice on two grounds. First, the District contends that the first prong of the test used to prove a section 14(a)(3) violation was not satisfied. The District argues that Warning was not engaged in a protected union activity when she insisted on having representation at her remediation meetings. Second, the District contends that, even if a prima facie case was made, the manifest weight of the evidence supports a finding that Warning\u2019s contract would not have been renewed in any event, due to deficiencies in her teaching and communication skills. Accordingly, the District asks us to find that the Board\u2019s decision, finding that the District committed an unfair labor practice, is clearly erroneous.\nProtected Activity\nWe first consider the District\u2019s contention that the Board erred when it found that Warning made out a prima facie case of a section 14(a)(3) unfair labor practice. As noted above, for the Board to have found that Warning demonstrated a prima facie case of a section 14(a)(3) violation and, derivatively, a section 14(a)(1) violation, the Board had to find that Warning satisfied her initial burden of proving that she had been discriminated against (i.e., discharged) because she had engaged in an activity protected by section 14(a)(3) (i.e., union activity).\nWarning and the Association alleged in the complaint against the District that Warning was engaged in a protected activity when she insisted on union representation at her remediation meetings. Warning and the Association contended that Warning was entitled to union representation by both the Labor Act and the collective-bargaining agreement between the Association and SPEED District 802. Before the ALJ, they pointed to section 3 \u2014 10 of the collective-bargaining agreement, which provides:\n\u201cA bargaining unit member shall be entitled to have present a representative of the Association during any meeting which leads to disciplinary action.\u201d\nThey argued that, because Warning\u2019s remediation meetings with Runyan had the potential of resulting in adverse action, i.e., Warning\u2019s dismissal, she had the right to representation under the agreement.\nThe District challenged this allegation, noting that section 3 \u2014 10 of the collective-bargaining agreement further provides that \u201cdisciplinary action is not performance based.\u201d Thus, the District maintained that, because remediation meetings are performance based, the collective-bargaining agreement did not afford Warning a right to union representation and, therefore, there was no evidence that Warning suffered any adverse action as a result of her participation in a protected union activity.\nIn resolving this controversy, the ALJ agreed that section 3 \u2014 10 of the collective-bargaining agreement defined \u201cdisciplinary action\u201d as \u201cnot performance based.\u201d Nevertheless, the ALJ dismissed the District\u2019s argument in one sentence, stating: \u201cThere is no evidence, however, that the contractual provision was intended to waive a non-tenured teacher\u2019s Weingarten rights to union representation during an investigatory conference.\u201d\nIn National Labor Relations Board v. Weingarten, 420 U.S. 251 (1975), it was held that an employer violated section 8(a)(1) of the NLRA \u2014 the model for our section 14(a)(1) \u2014 when it denied an employee\u2019s request for union representation at an \u201cinvestigatory interview\u201d which the employee reasonably believed would result in discipline. The ALJ found that remediation meetings are \u201cinvestigatory,\u201d relying on Summit Hill School District 161, 4 Pub. Employee Rep. (Ill.) par. 1009, No. 86 \u2014 CA\u20140090\u2014C (IELRB December 1, 1987).\nIt is true that, in Summit Hill, the IELRB found that remediation meetings were \u201cinvestigatory.\u201d However, that is only one of the IELRB\u2019s findings in that case, which the ALJ selectively adopted. Summit Hill involved a tenured teacher who was denied union representation at postobservation (remediation) meetings held during the one-year remediation period required for tenured teachers by the School Code. When asked to determine whether this denial of representation was an unfair labor practice, the IELRB in Summit Hill held:\n\u201cUnder the Education Reform Act, the remediation process may lead to one of two results: successful remediation or discharge. One purpose of the process is to alert the teacher to perceived problems and provide the teacher with a one-year opportunity to improve. *** However, discipline may be imposed at the end of the one-year remediation period if the teacher has not received a \u2018satisfactory\u2019 or better rating. Ill. Rev. Stat. Ch. 122, pars. 24A \u2014 5(i) and (j). In other words, attempted remediation is a required preliminary step for the alternative result under the Education Reform Act, dismissal. If improvement is not shown, the employee may expect the commencement of the dismissal process, during which the observations of a teacher undergoing remediation and the reports of such observations may very well be used as \u2018evidence\u2019 to support the district\u2019s case for dismissal. Thus, a teacher may reasonably fear that that [sic] at least some, if not all, post-observation conferences may ultimately lead to discharge.\nNevertheless, we conclude that the right to have union representation as a matter of law does not attach to post-observation conferences ***.\u201d (Emphasis added.) 4 Pub. Employee Rep. (Ill.) par. 1009, at IX \u2014 32.\nThe IELRB then explained that educational labor laws in Illinois do not provide for union representation in remediation. One reason is that postobservation conferences are required by the State Board of Education and, therefore, \u201can employer is not free, as in the private sector or the usual investigatory interview, to discontinue a postobservation conference and proceed to obtain information from other sources.\u201d Furthermore, \u201cdiscontinuance would also undermine one of the goals of the conference which is to discuss and correct deficiencies.\u201d Accordingly, the IELRB concluded in Summit Hill that, since the law did not afford a tenured teacher the right to union representation at postobservation conferences, if such a right was to exist, it would have to be contained in the collective-bargaining agreement, but was not.\nIn the present case, the ALJ found that the Board\u2019s holding in Summit Hill did not extend to nontenured teachers. Its rationale for this determination was that Warning\u2019s remediation period was much shorter, lasting only from March 1 to May 1, 2005, and that \u201cthe union representative whom Warning repeatedly requested *** was her representative to protect her interests against unjust dismissal and, similarly, the interests of all nontenured teachers under remediation.\u201d The ALJ then recommended that the Board rule that the District violated section 14(a)(3) of the Act.\nThe Board subsequently adopted the ALJ\u2019s recommendation. In its written order, the Board, addressing the contested issue of whether Warning had engaged in protected activity, stated:\n\u201cHere, Warning engaged in union activity when she invoked representation by Association grievance representative Beth Wierzbicki. In Chicago Board of Education, 22 PERI 143, Case No. 2004 \u2014 CA\u20140061\u2014C (IELRB, April 11, 2006), the Illinois Educational Labor Relations Board (\u2018IELRB\u2019) ruled that an employee engaged in union activity when he sought the union\u2019s assistance in disciplinary matters and when union representatives accompanied him to pre-disciplinary meetings.\u201d\nHowever, in the cases cited by the Board, the employees who were found to have engaged in union activity had a right to union representation. The Board never addressed the District\u2019s claim that Warning was not engaged in protected activity because she was not entitled to union representation at her remediation meetings. Instead, the Board stated: \u201cIt is unnecessary for us to decide whether denying Warning union representation at the post-evaluation meetings would have been an unfair labor practice under Summit Hill School District 161, A PERI 1009, Case No. 86 \u2014 CA\u20140090\u2014C (IELRB, December 1, 1987) and NLRB v. Weingarten, 420 U.S. 251 (1975).\u201d The Board reasoned that this was so because \u201cin this case it is not alleged that the District violated the Act by denying Warning union representation.\u201d\nThe District timely appealed the Board\u2019s ruling to the appellate court, again arguing that, to prove an unfair labor practice under section 14(a)(3), it was imperative that Warning show that she had engaged in a protected activity. The District further argued that the Board was clearly erroneous in finding that Warning engaged in a protected activity because Warning did not have the right to union representation at her postobservation remediation meetings. The appellate court disagreed with the District, stating:\n\u201cWe agree with the holding in Summit Hill School District 161, 4 Pub. Employee Rep. (Ill.) par. 1009 n.7, No. 86 \u2014 CA\u20140090\u2014C, at IX \u2014 33 (IELRB December 1, 1987) (hereinafter 4 Pub. Employee Rep. (111.) par. 1009), where the Board determined that since postobservation remedial meetings can sometimes result in a teacher\u2019s discharge, the suggestion that such meetings were not \u2018investigatory\u2019 must be rejected. We agree with the Board that Warning was engaged in a protected activity when she requested union representation during her remedial meetings with Runyan. See, e.g., Georgetown-Ridge Farm Community Unit School District No. 4 v. Illinois Educational Labor Relations Board, 239 Ill. App. 3d 428, 464, 606 N.E.2d 667 (1992) (employee engaged in protected activity by seeking the assistance of union representative concerning reduction of hours and filing of complaint); Abuzir, 22 Pub. Employee Rep. (Ill.) par. 143, at 553 (employee engaged in protected activity when union representative accompanied him to prediseiplinary meetings).\u201d 392 Ill. App. 3d at 636-37.\nThis is the sum total of the discussion on the District\u2019s main claim on appeal. Justice Garcia dissented, however, stating, \u201cWarning\u2019s desire to have union representation at her postevaluation meetings [could not be transformed] into union activity when no such right exists under the collective bargaining agreement between Speed District 802 and SPEED Education Association.\u201d 392 Ill. App. 3d at 642 (Garcia, J., dissenting). Justice Garcia also believed that the Board had improperly sidestepped this issue, stating:\n\u201cEither Ms. Warning had the right to have union representation at the postevaluation meetings or she did not. If she did not, Speed District 802 was well within its \u2018supervisory authority\u2019 to restrict union representation at the postevaluation meetings to a nonactive role.\u201d 392 Ill. App. 3d at 641 (Garcia, J., dissenting).\nNow, before this court, the District asks us to find that the Board and the appellate court improperly determined that Warning engaged in a protected activity when she insisted on having union representation at her remediation meetings. The District maintains \u2014 as it has from the beginning \u2014 that Warning had no right to union representation at her postobservation conference and remediation meetings with Principal Runyan. Accordingly, the District contends that the Board\u2019s decision that it committed an unfair labor practice when it dismissed Warning is clearly erroneous. We agree.\nWarning, the Association and the Board continue to maintain that Warning engaged in protected union activity when she asked for and received union representation at her evaluation conference and postobservation remediation meetings. They contend, \u201cthere is no issue here of whether Warning had a right to union representation during the meetings; the Board did not make, nor did it have to make, that determination.\u201d In their view, \u201cthe District\u2019s right-based argument comes too late because the District failed to enforce its view that Warning did not have a right to representation.\u201d Based on this rationale, they claim the District\u2019s rights-based assertion is \u201cirrelevant.\u201d They contend \u201cthe issue here is not whether Warning had the right to Union representation, because it was never denied her, or whether that right was waived by contract, but rather, once she engaged Union representation during the meetings, the District retaliated against her and discharged her for doing so.\u201d\nWe reject the argument that if the District did not believe that Warning was entitled to union representation at her remediation meetings, it should have refused to meet with her under those conditions and then sought a ruling on whether their action was an unfair labor practice. As explained in Summit Hill, imposing such a requirement is impractical, if not impossible. The District, unlike other employers, does not have the discretion to discontinue remediation and attempt to obtain information from other sources. Warning was a fourth-year probationary teacher and under section 3 \u2014 9 of the collective-bargaining agreement she could not be dismissed for performance reasons without the District establishing at least one documented attempt to correct deficiencies. Thus, the District was not free to discontinue remediation.\nFurther, it is counterintuitive \u2014 particularly with regard to nontenured teachers where the remediation period is brief \u2014 to require the District to discontinue corrective meetings and seek a ruling on whether a teacher has the right to union representation. As stated in Summit Hill, such a requirement would undermine the goal of remediation conferences, which is to correct deficiencies.\nWe believe the District acted reasonably in this situation. It permitted Warning to have a union representative accompany her to her remediation meetings despite its belief that she was not entitled to that right. Also, we agree with Justice Garcia that Warning\u2019s insistence on having union representation at her remediation meetings did not automatically transform this situation into a protected union activity. An employee engages in protected union activity only when the employee\u2019s actions invoke a right under the law or the collective-bargaining agreement. As Warning and the Association concede in their brief, the United States Supreme Court concluded in National Labor Relations Board v. City Disposal Systems, Inc., 465 U.S. 822 (1984), that \u201cemployees engage in protected activity when invoking contractual rights because that activity is a direct extension of collective bargaining.\u201d\nIn the case at bar, Warning\u2019s proof that she engaged in a protected union activity is lacking because she has provided no evidence that she was entitled, either by law or contract, to union representation at remediation meetings. As stated in Summit Hill, even though remediation meetings are \u201cinvestigatory,\u201d the right to union representation does not attach by law and, to exist, must be contracted for through collective bargaining. The collective-bargaining agreement here does not explicitly give employees the right to union representation at remediation meetings. Rather, our reading of the contract indicates to us that the right to union representation does not attach to postobservation conferences and remediation, where the possible \u201cdisciplinary action\u201d the employee faces is performance based. We reach this conclusion based on section 3 \u2014 8(F) of the collective-bargaining agreement, which specifically provides, \u201cEvaluative conclusions and remediation decisions are made in the sole discretion of the evaluating supervisor and are non-grievable and nonarbitrable.\u201d This being so, a union representative would have no official role to play at postobservation conferences and remediation meetings.\nWe conclude, therefore, that Warning failed to prove that she was entitled to union representation. And if Warning did not have a right to union representation, then Warning and the Association failed to prove that Warning was engaged in union activity when she insisted on having union representation at her evaluation conference and remediation meetings and when she chose to follow her representative\u2019s lead in taking an assertive and confrontational stance with regard to her evaluation and the administration\u2019s attempts to provide corrective instruction.\nWithout a showing of protected activity, there can be no finding that the District discriminated against Warning for engaging in protected activity. We find, therefore, that Warning and the Association failed to prove the District violated section 14(a)(3) of the Act. As a result, we find the Board\u2019s decision, that the District committed an unfair labor practice when it failed to renew Warning\u2019s teaching contract, is clearly erroneous.\nIn light of our conclusion that the District\u2019s actions did not constitute an unfair labor practice, we need not consider whether reinstating Warning to a tenured position was an appropriate remedy.\nCONCLUSION\nFor all the reasons stated above, we reverse the judgment of the appellate court and set aside the decision of the IELRB that SPEED District 802 committed an unfair labor practice when it failed to renew Rachel Warning\u2019s teaching contract. The cause is remanded to the Board for further proceedings consistent with this opinion.\nAppellate court judgment reversed; Illinois Educational Labor Relations\nBoard decision set aside; cause remanded.\nThe rating system used by the school district has only three classifications: \u201cExcellent,\u201d \u201cStandard,\u201d and \u201cUnsatisfactory.\u201d A \u201cStandard\u201d rating means the teacher is performing satisfactorily.\nSection 34 \u2014 84 of the School Code (105 ILCS 5/34 \u2014 84 (West 2004)) provides that permanent appointment of a full-time teacher \u201cshall be made for merit only\u201d and, after January 1, 1998, only after \u201csatisfactory service for a probationary period of *** 4 years.\u201d The Code provision also states that teachers, once permanent, shall be subject to removal for cause, but that \u201cduring [this probationary] period the board may dismiss or discharge any such probationary employee upon the recommendation, accompanied by the written reasons therefor, of the general superintendent of schools.\u201d\nThere is no evidence in the personnel file regarding the previous incident of improper language referred to here.\n4The collective-bargaining agreement between the union and the District prohibits the District from dismissing a third- or fourth-year probationary teacher for performance reasons \u201cwithout at least one documented attempt to correct deficiencies.\u201d\nIt should be noted here that two other teachers were placed on corrective action plans at the same time as Warning. Both of these teachers were permitted to have union representation at their remediation meetings. One teacher voluntarily left her position without completing the corrective action plan. The other teacher successfully completed his corrective action plan and had his teaching contract renewed.", "type": "majority", "author": "JUSTICE BURKE" }, { "text": "CHIEF JUSTICE KILBRIDE,\ndissenting:\nI agree with the dissent\u2019s analysis with two exceptions. First, on the unfair labor practice discussion, I believe the dissent\u2019s application of Weingarten and Summit Hill is unnecessary given the facts of this case. As noted by the Illinois Educational Labor Relations Board, Warning was not denied union representation. Instead, she alleged that the District retaliated against her for having union representation at the meetings during the 2004-05 school year. Thus, it is unnecessary to decide whether denying Warning union representation at those meetings would have been an unfair labor practice under Weingarten and Summit Hill.\nWarning engaged in protected union activity by having union representation at the meetings, as permitted by the collective-bargaining agreement. I agree with the dissent that Warning was entitled to union representation at those meetings and her teaching contract was not renewed based on her exercise of that right. The Board correctly determined that the District committed an unfair labor practice by not renewing Warning\u2019s teaching contract for engaging in protected union activity. Accordingly, I join in the dissent\u2019s conclusion that the Board did not err in finding the District committed an unfair labor practice.\nSecond, I disagree with the dissent\u2019s analysis of the remedy for the unfair labor practice. Under the Illinois Educational Labor Relations Act, the Board is not only empowered to order a party committing an unfair labor practice to stop the unfair practice, but may also \u201ctake additional affirmative action.\u201d (Emphasis added.) 115 ILCS 5/15 (West 2004). The Board\u2019s purpose in fashioning a remedy in an unfair labor practice case is to \u201cmake-whole\u201d the parties by placing them \u201c \u2018in the same position they would have been in had the unfair labor practice not been committed.\u2019 [Citation.]\u201d Paxton Buckley-Loda Education Ass\u2019n v. Illinois Educational Labor Relations Board, 304 Ill. App. 3d 343, 353 (1999). The Board has \u201c \u2018substantial flexibility and wide discretion to ensure that victims of unfair labor practices be returned to the position that would have obtained had the illegal conduct not occurred.\u2019 [Citation.]\u201d Paxton-Buckley-Loda Education Ass\u2019n, 304 Ill. App. 3d at 353-54. The Board\u2019s remedial orders are reviewed for abuse of discretion. Paxton-Buckley-Loda Education Ass\u2019n, 304 Ill. App. 3d at 353.\nHere, the Board adopted the administrative law judge\u2019s recommendation reinstating Warning to her teaching position and awarding back pay. The Board determined that reinstatement of Warning\u2019s teaching position was the appropriate remedy for the nonrenewal of her teaching contract because it placed her in the position that would have existed had the unlawful nonrenewal not occurred. The Board certainly had the authority to reinstate Warning\u2019s employment following the nonrenewal of her teaching contract. In fact, reinstatement of employment was the only remedy that could \u201cmake-whole\u201d Warning for the unlawful nonrenewal. The Board did not abuse its discretion in ordering this remedy.\nThe reinstatement of Warning\u2019s employment would have resulted in tenure by operation of the School Code because she was dismissed at the end of her fourth and final probationary year. If her employment were reinstated, Warning would have completed her probationary period and entered into contractual continued service under section 24 \u2014 11 of the School Code (105 ILCS 5/24 \u2014 11 (West 2004)).\nContrary to the dissent, the Board had the authority to order the reinstatement of Warning\u2019s teaching contract with the consequence that she receive tenure. Section 14(a)(3) of the Act prohibits discrimination \u201cin regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any employee organization.\u201d (Emphasis added.) 115 ILCS 5/14(a)(3) (West 2004). By not renewing Warning\u2019s teaching contract at the end of her final probationary year based on her protected union activity, the District discriminated \u201cin regard to *** tenure of employment.\u201d The denial of tenure was a direct result of the nonrenewal of Warning\u2019s teaching contract.\nUnder section 14(a)(3), denial of tenure based on the exercise of protected union rights is unlawful. The Board\u2019s authority must include the power to remedy the unlawful deprivation of tenure based on protected union activity. The Board, therefore, had the authority under the Act to order the \u201cmake-whole\u201d remedy of reinstating Warning\u2019s teaching contract with the consequence that she receive tenure.\nFurther, Warning\u2019s acquisition of tenure as a result of the reinstatement of her employment would not interfere with the District\u2019s legitimate interest in overseeing tenure decisions. The record indicates that prior to the protected union activity in this case, Warning\u2019s performance had always been rated at least \u201cstandard\u201d or satisfactory. Warning received \u201cstandard\u201d or satisfactory ratings in each of her first three years of employment with the District. She received a rating of \u201cprofessional,\u201d \u201cexcellent,\u201d and \u201coutstanding\u201d in the fall of her fourth and final probationary year. It was only after Warning was subsequently admonished about using inappropriate language with a paraprofessional and sought the assistance of a union representative that questions were raised about her performance. The meetings following that admonition when Warning requested union representation led to the nonrenewal of her teaching contract.\nAs the dissent clearly establishes, Warning was entitled to union representation at those meetings and the record shows her teaching contract was not renewed based on her exercise of that protected right. The record indicates that Warning\u2019s teaching contract would have been renewed and she would have acquired tenure if she had not been discharged based on an unfair labor practice.\nI recognize that the District has a legitimate interest in overseeing tenure to assure continuous service by teachers of ability and experience. See Johnson v. Board of Education of Decatur School District No. 61, 85 Ill. 2d 338, 344 (1981). The District\u2019s tenure decisions must be based on lawful considerations, however. The nonrenewal of Warning\u2019s teaching contract was based on her protected union activity, and the District does not have a legitimate interest in denying a probationary teacher tenure based on an unfair labor practice. Thus, the fact that Warning would have acquired tenure through the Board\u2019s reinstatement of her employment does not interfere with the District\u2019s legitimate interest in overseeing tenure decisions.\nBased on these circumstances, I conclude that the Board did not abuse its discretion in reinstating Warning\u2019s employment. The reinstatement of employment would have resulted in tenure. There is no need for an additional probationary year because the District never identified any legitimate concern with Warning\u2019s performance. In my view, the appellate court properly confirmed the Board\u2019s decision and I would affirm the appellate court\u2019s judgment. Accordingly, I respectfully dissent.", "type": "dissent", "author": "CHIEF JUSTICE KILBRIDE," }, { "text": "JUSTICE FREEMAN,\ndissenting:\nI believe that Warning was entitled to union representation at the meetings during the 2004-05 school year. Therefore, I would affirm in part the judgment of the appellate court (392 Ill. App. 3d 628), which confirmed the decision of the Illinois Educational Labor Relations Board (Board). I would uphold the Board\u2019s determination that SPEED District 802 (District) committed an unfair labor practice when it dismissed Warning. However, I disagree with the Board that tenure is the proper remedy. Rather, I would restore Warning to a final probationary year. Accordingly, I respectfully dissent.\nI. BACKGROUND\nThe District is a special education joint agreement district comprised of 15 member school districts that pool their resources to provide special education services to students of all age and grade levels who have a range of disabilities. The District employed Warning as a teacher. As mandated by section 24 \u2014 11 of the School Code, Warning had a probationary period of four consecutive years. However, after the four-year probationary period, Warning would have entered \u201ccontractual continued service,\u201d i.e., tenure. See 105 ILCS 5/24 \u2014 11 (West 2004).\nA. Employment Documents\nA collective-bargaining agreement exists between the District and the SPEED Education Association, IEA-NEA (Association or Union). The District\u2019s evaluation and remediation procedures are set forth in the parties\u2019 collective-bargaining agreement, supplemented by the District\u2019s employee handbook. This case turns on the correct interpretation and application of the agreement. Because the majority opinion omits a comprehensive recitation of the evaluation and remediation procedures in the collective-bargaining agreement, I discuss the relevant provisions in detail.\nSection 3 \u2014 8 of the agreement, captioned \u201cEmployee Evaluation,\u201d begins by declaring that \u201call evaluations shall be conducted in good faith *** and in accordance with the provisions of this Agreement. The criteria and procedures contained herein shall be applied uniformly through [the District].\u201d Subsection A provides that teachers shall be formally evaluated at least once during each nontenured year. Subsection B provides: \u201cPrior to October 1, employees will be informed as to who will be responsible for each employee\u2019s supervision and evaluation. At this time, the evaluation procedure and instrument to be used for the school year will be reviewed and each employee shall receive a complete copy of the evaluation instrument.\u201d Subsection B further provides that the evaluation of all teachers shall be completed by March 1.\nSection 3 \u2014 8C details the evaluation process. A qualified administrator must evaluate each teacher through personal observation. Each District supervisor must hold a pre-evaluation conference with each teacher to discuss expectations, and to set the specific dates and times for observations. Each evaluation must be conducted with not less than two on-the-job site observations for no less than 30 consecutive minutes for each observation. The second observation must be separated from the first by at least one work day. After the first observation, the teacher and the evaluator must discuss strengths and weaknesses. They will determine the need for additional activities, observations, and technical assistance, and decide a schedule for these activities. The completed formal evaluation must be reduced to writing and submitted to the teacher no later than March 1.\nThe teacher must receive a written evaluation within five school days of the final observation. Between 24 hours and five school days after receipt of the written evaluation, a postevaluation conference must take place at a mutually agreeable date and time. An evaluation should include specific reasons for the ratings given. Any teacher who receives any unsatisfactory rating, but is not placed on a remediation plan, must be provided specific suggestions for improvement, developed by the evaluator and the employee.\nSignificantly, section 3 \u2014 8F provides: \u201cEvaluative procedures, contained herein, are subject to the grievance procedure. Evaluative conclusions and remediation decisions are made in the sole discretion of the evaluating supervisor and are non-grievable and non-arbitrable.\u201d (Emphasis added.) Section 7H of the employee handbook, labeled \u201cStaff Evaluation Procedures,\u201d supplements the collective-bargaining agreement as follows: \u201cEvaluative procedures, contained herein, including those pertaining to employee remediation, are subject to the grievance procedure.\u201d (Emphasis added.)\nSection 3 \u2014 9 of the collective-bargaining agreement is labeled \u201cRemediation of Staff.\u201d Subsection B provides that nontenured teachers in the third or fourth probationary year will not be dismissed for performance reasons without at least one documented attempt to correct deficiencies. Subsection D provides: \u201cRemediation of staff for performance based reasons shall not be subject to grievance and/or arbitration.\u201d\nSection 3 \u2014 10 of the collective-bargaining agreement is labeled \u201cEmployee Discipline.\u201d Subsection A provides: \u201cA bargaining unit member shall be entitled to have present a representative of the Association during any meeting which leads to disciplinary action. *** A bargaining unit member may choose which union representative is present provided it does not unreasonably delay the meeting. Disciplinary action is not performance based.\u201d Subsection B provides a nonexclusive and nonhierarchical list of disciplinary consequences that include: \u201cwritten warning; copy placed in employee\u2019s personnel file, with duration of time to remain in file stated in letter\u201d and \u201cdismissal.\u201d Subsections C and D provide: when the District determines to hold a disciplinary meeting, the employee shall be informed of the violation that is to be discussed; disciplinary decisions resulting from the meeting shall be reduced to writing and presented to the employee; and no bargaining unit member shall be dismissed or suspended without pay for disciplinary reasons without at least one documented attempt by a supervisor with a 12-month period to correct the behavior.\nIn sum, the District must conduct all teacher evaluations according to the collective-bargaining agreement, supplemented by the employee handbook. Evaluation conclusions and remediation decisions are nongrievable. However, evaluative procedures, including those pertaining to employee remediation, are grievable. Further, section 7 \u2014 1A of the collective-bargaining agreement defines a \u201cgrievance\u201d as a complaint by a teacher or the Union that there has been a \u201cviolation, misinterpretation, or misapplication\u201d of the collective-bargaining agreement. Also, a teacher is entitled to union representation for disciplinary matters. These provisions memorialize the relationship between the District and the Union as it pertains to teacher evaluation and remediation. Thus, whether a nontenured teacher is entitled to union representation at an employment meeting with the District depends on how the meeting is characterized and the nature of the teacher\u2019s grievance.\nB. Warning\u2019s Meetings With District Personnel\nBeginning in the 2001-02 school year, Warning was employed by the District as a full-time teacher of high-school-age students with severe physical disabilities in its Program for Adaptive Learning (PAL). During each of her first three probationary years, Warning received from PAL Principal Kathy Call an overall summative evaluation rating of \u201cstandard,\u201d i.e., satisfactory. During the 2002- 03 school year, Warning\u2019s second probationary year, Principal Call expressed concerns regarding Warning\u2019s performance. However, Warning ultimately received an evaluation rating of \u201cstandard\u201d for the 2002-03 school year, and her employment contract was renewed. For the 2003- 04 school year, Principal Call gave Warning an overall rating of \u201cstandard.\u201d\nThe 2004-05 school year was Warning\u2019s fourth and final probationary year. Principal Call was replaced by the new PAL principal, Benoit Runyan. In the fall of 2004, Warning was notified, pursuant to section 3 \u2014 8B of the collective-bargaining agreement, that Assistant Principal Julie Egan would evaluate her during that school year. After observing Warning\u2019s classroom in November 2004, Egan rated Warning as \u201cprofessional,\u201d \u201cexcellent,\u201d and \u201coutstanding.\u201d\nOn December 8, 2004, District Human Resources Director Dr. Genevra Clasberry sent a memorandum to Warning, which stated in full:\n\u201cOn Friday, December 3, 2004, a substitute paraprofessional reported to me that you had used inappropriate language with her prior to the Holiday break. I discussed the incident with you while the substitute was present and you stated that you did use the language but it was in the context of \u2018joking.\u2019 After further investigation, a paraprofessional present during the incident confirmed that inappropriate language was used. She stated that she did not feel that the language was directed towards anyone or meant to be derogatory. However, as Mr. Runyan and I discussed with you in the presence of Beth Wierzbicki (Union representative), inappropriate language should not be used in the classroom setting regardless of the context. Furthermore, this is the second incident during your employment with [the District] in which a substitute paraprofessional expressed concerns about the use of inappropriate language. As Mr. Runyan and I discussed with you, this behavior is unacceptable and must be corrected immediately. Your interaction with all staff must be professional and appropriate for the school setting. The following are expectations of you in the future:\n\u2022 You will refrain from using inappropriate language in the classroom. Another report could result in disciplinary action up to dismissal.\n\u2022 You will be responsible for selecting and participating in training focusing on building your skills in interacting with adults in the school setting. You must receive approval from Mr. Runyan prior to participating.\n\u2022 You will meet with Mr. Runyan and I prior to the end of the school year to discuss your progress.\n*This memo will remain in your personnel file for the duration of your employment with [the District].\u201d (Emphases added.)\nThe record further indicates that Warning requested union representation at this disciplinary meeting, and that Wierzbicki spoke on Warning\u2019s behalf. Additionally, in a written response, Warning admitted, explained, and apologized for the inappropriate language. She concluded: \u201cI will continue to refrain from using inappropriate language and I will participate in training sessions.\u201d\nOn February 15, 2005, Warning had her second classroom observation for the 2004-05 school year pursuant to section 3 \u2014 8 of the collective-bargaining agreement. Approximately one week prior to the observation, Warning was notified that Principal Runyan, rather than Assistant Principal Egan, would conduct the observation. Principal Runyan did not hold a preobservation conference with Warning in contravention of section 3 \u2014 8C of the collective-bargaining agreement. Warning testified that Runyan\u2019s observation lasted only approximately 20 minutes, also in violation of section 3 \u2014 8C.\nAccording to paragraph 15 of the parties\u2019 \u201cJoint Statement of Uncontested Facts,\u201d on March 1, 2005:\n\u201cWarning had a meeting with Principal Runyan to discuss Runyan\u2019s recent observation of Warning\u2019s class. Warning requested Union representation at this meeting and was accompanied by Wierzbicki. At this meeting, Runyan provided Warning with a summative evaluation in which he gave Warning unsatisfactory rating[s] in instructional planning and development, management of instructional time, instructional presentation and feedback, [and] communication and professional responsibilities. Runyan stated in his evaluation of Warning that due to the overall summative rating of unsatisfactory, it was his recommendation that Warning be placed on a plan to correct her deficiencies. Runyan attached a corrective deficiency plan to his evaluation and stated that *** Warning must take corrective actions by May 1, 2005, or Runyan would recommend her termination. At the meeting, Warning asked that Mr. Runyan separately rate each objective cited in her evaluation. Runyan denied Warning\u2019s request, stating that he would not separately rate each objective, that he was not required to do so and that he had never done so in the past. Wierzbicki responded that Runyan had rated each of the objectives in her [Wierzbicki\u2019s] evaluation separately. Wierzbicki was evaluated using a different instrument than Warning. At the conclusion of the meeting, Runyan stated that Wierzbicki would not be needed at any further meetings. Warning responded that she wanted Union representation. Runyan stated that \u2018having the Union involved just makes the situation more complicated, I would rather just go through giving you instructions.\u2019 \u201d\nWarning and Wierzbicki each testified at the administrative hearing. According to their testimony, Principal Runyan\u2019s evaluative procedures did not conform to the format prescribed by the employee handbook. Warning brought the handbook to the meeting, where she and Wierzbicki pointed to the prescribed evaluation format that Runyan should have used. As the meeting progressed, Runyan\u2019s demeanor was described as growing increasingly \u201cnervous,\u201d \u201cagitated,\u201d \u201cimpatient,\u201d and \u201cangry.\u201d\nAlso on March 1, 2005, Principal Runyan sent a letter to Dr. Betty Pointer, the District executive director, informing her that he presented a corrective deficiency plan to Warning at the meeting with Wierzbicki. In this letter, elsewhere in the record designated a \u201cCorrective Action Plan,\u201d Principal Runyan identified two areas of concern: (1) Warning\u2019s \u201ccommunication with classroom support personnel,\u201d and (2) her \u201cinstructional presentation.\u201d The plan described the first issue as follows:\n\u201cDuring the school year we had one identified incident that was discuss[ed] with Dr. [Clasberry] (Director of Human Resource[s]) and myself. During our meeting it was brought to my attention that this was the second incident within one calendar year related to inappropriate comments directed towards a paraprofessional supporting you in the classroom. I shared with you during the year that some support staff members have felt intimidated in your classroom setting. As a classroom instructor you have the responsibility of setting the tone and climate in modeling appropriate communications/actions with all students and staff members within classroom and building setting [sic].\u201d\nThis paragraph plainly references the events memorialized in Dr. Clasberry\u2019s December 8, 2004, disciplinary memorandum to Warning.\nWierzbicki accompanied Warning to subsequent meetings, where they debated the evaluative procedures with Principal Runyan and other District personnel, who consistently stated that they did not want Wierzbicki to participate at these meetings. 242 Ill. 2d at 104-07. On March 24, 2005, the District\u2019s governing board gave Warning notice of dismissal and nonrenewal of her teaching contract at the end of the 2004-05 school year. On the same day, Dr. Pointer notified Warning that the \u201cnotice of dismissal and non-renewal is contingent on the successful completion of the Corrective Action Plan.\u201d On April 28, 2005, Dr. Pointer notified Warning that her teaching contract with the District would terminate at the end of the 2004-05 school year. The letter cites \u201cthe unsuccessful attempt to correct deficiencies that were outlined in [Principal Runyan\u2019s March 1, 2005, corrective deficiency plan].\u201d See 242 Ill. 2d at 104-09. Additional pertinent background will be discussed in the context of my analysis of the issues.\nII. ANALYSIS\nIn the present case, the initial question presented is whether the District committed an unfair labor practice in violation of section 14(a)(3) and, derivatively, section 14(a)(1) of the Illinois Educational Labor Relations Act (IELRA or Act) (115 ILCS 5/14(a)(l), (a)(3) (West 2004)). If so, the next question is whether the grant of tenure to Warning was the appropriate remedy.\nA. Unfair Labor Practice\nThe primary issue in this case is simple: Was Warning engaged in a protected union activity when she insisted on having Wierzbicki attend the meetings at issue during the 2004-05 school year? The court holds that she was not. I disagree with this conclusion because the collective-bargaining agreement allowed for such representation. Having concluded that Warning was legally entitled to have Wierzbicki present at the meetings, I have no trouble accepting the Board\u2019s finding that the District terminated Warning because she had engaged in protected union activity.\nTo properly analyze this issue, the first step is to identify the situations in which the parties\u2019 collective-bargaining agreement confers the right to representation. When an employer and a labor union bargain about a subject and memorialize that bargain in a collective-bargaining agreement, they create a set of rules governing their future relations. National Labor Relations Board v. United States Postal Service, 8 F.3d 832, 836 (D.C. Cir. 1993). Rights to union representation must be based upon, and may be limited by, the collective-bargaining agreement. See Ryan v. Union Pacific R.R. Co., 286 F.3d 456, 459 (7th Cir. 2002). Further, courts read collective-bargaining agreements as a whole. International Brotherhood of Electrical Workers, Local 176 v. Balmoral Racing Club, Inc., 293 F.3d 402, 406 (7th Cir. 2002).\nThe IELRA reflects the intent of the General Assembly to protect the rights given in collective-bargaining agreements between teachers and educational employers. Section 14(a) of the IELRA prohibits educational employers from, in pertinent part: \u201c(1) Interfering, restraining or coercing employees in the exercise of the rights guaranteed under this Act[;] *** (3) Discriminating in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any employee organization\u201d (115 ILCS 5/14(a)(l), (a)(3) (West 2004)). In light of the close parallel between section 14(a) of the IELRA and section 8(a) of the National Labor Relations Act (NLRA) (29 U.S.C. \u00a7 158(a) (2000)), federal interpretations of the NLRA are persuasive authority in construing the IELRA. See American Federation of State, County & Municipal Employees, Council 31 v. Illinois State Labor Relations Board, State Panel, 216 Ill. 2d 569, 579 (2005); City of Burbank v. Illinois State Labor Relations Board, 128 Ill. 2d 335, 345 (1989); Wapella Education Ass\u2019n v. Illinois Educational Labor Relations Board, 177 Ill. App. 3d 153, 161 (1988).\nSection 14(a)(1) refers to adverse action taken against an employee as a result of any protected concerted activity, while section 14(a)(3) refers specifically to discrimination based on union activity. Where, as here, an alleged violation of sections 14(a)(1) and 14(a)(3) stems from the same conduct, the section 14(a)(1) violation is said to be derivative of the section 14(a)(3) violation. In such cases, the test to be applied is the one used to determine whether a section 14(a)(3) violation occurred. Bloom Township High School District 206 v. Illinois Educational Labor Relations Board, 312 Ill. App. 3d 943, 957 (2000) (and cases cited therein).\nA section 14(a)(3) violation requires proof of improper motivation on the part of the employer. Under this test, the complainant must establish a prima facie case by proving that: (1) the employee was engaged in activity protected by section 14(a)(3) of the Act; (2) the employer was aware of that activity; and (3) the employee was discharged for engaging in that activity. Bloom Township, 312 Ill. App. 3d at 957; Georgetown-Ridge Farm Community Unit School District No. 4 v. Illinois Educational Labor Relations Board, 239 Ill. App. 3d 428, 464 (1992). Because the test of discrimination under section 14(a)(3) turns on motive and because motive is a question of fact (City of Burbank, 128 Ill. 2d at 345), this court is limited to ascertaining whether the Board\u2019s findings are against the manifest weight of the evidence. \u201cAn administrative agency\u2019s factual determinations are contrary to the manifest weight of the evidence where the opposite conclusion is clearly evident.\u201d City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 204 (1998). The District contends that Warning failed to establish the first and third elements of her prima facie case.\n1. Protected Union Activity\nThe Board found that Warning engaged in protected union activity. I agree. An employee engages in activity protected by section 14(a)(3) when the employee seeks union assistance. Georgetown-Ridge, 239 Ill. App. 3d at 464; Abuzir, 22 PERI H143 (IELRB 2006) (\u201cAbuzir engaged in union activity when he sought the Union\u2019s assistance in disciplinary matters [and] when union representatives accompanied him to pre-disciplinary meetings\u201d). The District cannot contest that Warning had union representation at multiple meetings with Principal Runyan and other District administrators during the 2004-05 school year.\nRejecting the Board\u2019s finding, this court reasons that Warning\u2019s union representation, in the person of Wierzbicki, at the 2004-05 meetings did not constitute protected union activity because Warning did not have a right to union representation at those meetings. I disagree. Whether Warning was entitled to union representation at the meetings with the District depended on how the meetings were characterized and the nature of Warning\u2019s grievance. Therefore, the characterization of a particular meeting has legal consequences, and must be thoughtfully considered. However, the parties, the appellate court dissent, and my colleagues in the majority loosely characterize the meetings during the 2004-05 school year variously as \u201cremediation meetings\u201d (see 242 Ill. 2d at 104-09, 120), \u201cpostevaluation meetings\u201d (see 242 Ill. 2d at 111), \u201cevaluation conference\u201d (see 242 Ill. 2d at 104, 119, 122), \u201cpostobservation remediation meetings\u201d (see 242 Ill. 2d at 119), and a meeting that involved potential \u201cdiscipline\u201d (see 242 Ill. 2d at 102). These labels eventually coagulate and muddle this court\u2019s analysis. The fact that the meetings defy precise characterization reveals that they covered a wide variety of grounds, some grievable, such as evaluative procedure, and some nongrievable, such as remediation decisions. Moreover, the meetings covered discipline as well.\nDuring the 2004-05 school year, Warning\u2019s fourth and final probationary year, her first confrontation with the District is memorialized in the December 8, 2004, memorandum from Dr. Clasberry, the District\u2019s human resources director. Union representative Wierzbicki accompanied Warning at the meeting. The memorandum expressly referred to \u201cdisciplinary action up to dismissal,\u201d and directed Warning to meet with Dr. Clasberry and Principal Runyan prior to the end of the school year to discuss the matter. Further, the memorandum stated that it would remain in her personnel file for the duration of her employment with the District. This matter was indisputably treated as employee discipline pursuant to section 3 \u2014 10 of the collective-bargaining agreement.\nPursuant to section 3 \u2014 8B of the collective-bargaining agreement, Assistant Principal Egan was designated to evaluate Warning during that school year. However, contrary to that section, Warning was notified that Principal Runyan would conduct her second classroom evaluation.\nSection 3 \u2014 8F of the collective-bargaining agreement, as supplemented by section 7H of the employee handbook, provided that evaluation conclusions and remediation decisions were nongrievable, but evaluation procedures, including those pertaining to employee remediation, were subject to the grievance procedure. At the postobservation conference, Warning requested union representation and, assisted by Wierzbicki, questioned Runyan as to the appropriate evaluative procedure. Warning and Wierzbicki voiced their concern that, as provided by the collective-bargaining agreement, there had been \u201ca violation, misinterpretation, or misapplication\u201d of its provisions. Additionally, Runyan attached to Warning\u2019s evaluation a \u201ccorrective deficiency plan,\u201d which identified as an area of concern the disciplinary matter of December 2004.\nThe record clearly shows that the collective-bargaining agreement granted Warning the right to union representation for at least two reasons. First, Warning had the right to union assistance pertaining to the separate and distinct December 2004 disciplinary incident. Indeed, the District plainly intertwined the disciplinary matter with her performance evaluations, which raised a procedural discrepancy justifying Warning to seek union assistance. This disciplinary matter, which ostensibly was closed in December 2004, became part and parcel of the \u201cremediation.\u201d Second, Warning certainly had the right under the collective-bargaining agreement to reasonably question the other disparities or inconsistencies in the evaluative procedure imposed on her. Since evaluative procedure is a matter that is grievable under the collective-bargaining agreement, it is not surprising that union representation would be wanted to investigate whether in fact the evaluative procedures contained in the agreement were properly followed.\nTherefore, it appears that Warning\u2019s \u201cremediation\u201d meetings included a component that was clearly \u201cinvestigatory.\u201d In National Labor Relations Board v. J. Weingarten, Inc., 420 U.S. 251 (1975), the United States Supreme Court accepted the decision of the NLRB that section 7 of the NLRA (29 U.S.C. \u00a7157 (2000)) creates a statutory right in an employee to refuse to submit without union representation to an interview which the employee reasonably fears may result in his or her discipline. Weingarten, 420 U.S. at 256. The Court further recognized the Board\u2019s contours and limits on what are now commonly called Weingarten rights: (1) the right inheres in the guarantee of section 7 to act in concert for mutual aid and protection; (2) the right arises only in situations where the employee requests representation; (3) the employee must reasonably believe the investigation will result in disciplinary action; (4) exercise of the right may not interfere with legitimate employer prerogatives. In other words, the employer is free to continue the investigation without interviewing the employee, and thereby leave to the employee the choice between having an interview unaccompanied by the representative, or having no interview and forgoing any benefits that might be derived therefrom; (5) the employer has no duty to bargain with any union representative who may be permitted to attend the investigatory interview. Id. at 256-60.\nThe Court held that the action of the employee in seeking to have the assistance of his or her union representative at a confrontation with the employer clearly falls within the plain language of section 7 that employees shall have the right to engage in concerted activities for the purpose of mutual aid or protection. Id. at 260; see 29 U.S.C. \u00a7157 (2000). The Court reasoned that this applies even though the employee alone may have an immediate stake in the outcome; after all, the employee seeks \u201caid or protection\u201d against a perceived threat to his or her employment security. The union representative whose participation the employee seeks is, however, safeguarding not only the particular employee\u2019s interest, but also the interests of the entire bargaining unit by exercising vigilance to make certain that the employer does not initiate or continue a practice of imposing punishment unjustly. The representative\u2019s presence is an assurance to other employees in the bargaining unit that they, too, can obtain aid and protection if called upon to attend a like interview. Id. at 260-61.\nIn the present case, Warning was entitled to union representation at the December 2004 investigatory meeting. Further, Principal Runyan expressly incorporated this investigatory matter as a component of Warning\u2019s remediation. Therefore, insofar as Warning\u2019s remediation pertained to this disciplinary matter, she had the right to union representation.\nFurther, in Summit Hill Council, AFT, Local 604, 4 PERI 1\u00cd1009 (IELRB 1987), the Board found Weingarten rights to inhere in the IELRA. The Board observed that section 3(a) of the IELRA is virtually identical to section 7 of the NLRA. Compare 115 ILCS 5/3(a) (West 2004) with 29 U.S.C. \u00a7157 (2000). The Board then stated: \u201cWe conclude that Section 3(a) of the IELRA encompasses the right to refuse to submit to an investigatory interview without union representation where the employee reasonably fears that the interview might result in discipline.\u201d The Board explained that a teacher under remediation \u201cmay reasonably fear that at least some, if not all, post-observation conferences may ultimately lead to discharge.\u201d \u201cBecause of the give and take that may occur at a post-observation conference,\u201d the Board determined that postobservation conferences are \u201cinvestigatory\u201d interviews.\nHowever, the question presented in Summit Hill was whether a tenured teacher under remediation is entitled to union representation at a postobservation conference upon request. The Board in Summit Hill concluded that Weingarten rights do not attach to the postobservation conferences of tenured teachers under remediation, based on the provisions of the Education Reform Act of 1985, which added article 24A to the School Code. Pub. Act 84 \u2014 126 (eff. Aug. 1, 1985); Pub. Act 84 \u2014 972 (eff. Sept. 25, 1985) (adding 105 ILCS 5/art. 24A). The Board observed that section 24A sets forth the minimum role of the union in the evaluation process, subject to supplementation of that role through collective bargaining. The Board in Summit Hill further observed that the collective-bargaining agreement in that case did not provide for union representation at postevaluation conferences. Consequently, the Board in Summit Hill found that the school district did not violate the IELBA by refusing the teacher\u2019s request for union representation during a postobservation conference.\nIn the present case, while the Board found it unnecessary to apply Weingarten and Summit Hill in this case, I agree with the ALJ that the Summit Hill limitation of Weingarten rights does not apply to nontenured teachers. As the ALJ correctly noted, the remediation process for a nontenured teacher is notably different from the process that article 24 of the School Code prescribes for tenured teachers. For example, where a tenured-teacher evaluation results in an unsatisfactory rating, participants in the remediation plan include not only the teacher and administrator, but also a \u201cconsulting teacher,\u201d who must be a bargaining unit employee. The union is permitted to supply a roster of teachers qualified to serve as consulting teachers, and a school district must select a consulting teacher from that list. The consulting teacher helps to develop the remediation plan, and then advises the tenured teacher in remediation on how to improve his or her teaching skills. See 23 Ill. Adm. Code 25.875. No similar provisions exist in the School Code and supporting regulations for nontenured teachers. In the absence of such provisions, the remediation process for a nontenured teacher is governed by the collective-bargaining agreement.\nIn this case, the collective-bargaining agreement did not clearly and unmistakably waive the right to union representation at a postobservation conference. To the contrary, section 3 \u2014 8F of the agreement, supplemented by section 7H of the employee handbook, expressly provides that evaluative procedures, including those pertaining to employee remediation, are subject to the grievance procedure. The meetings between Warning and the District involved disciplinary matters as well as evaluative and remediation procedure, all of which entitled Warning to union representation under the collective-bargaining agreement. Additionally, the \u201cremediation\u201d meetings here clearly had a component that was \u201cdisciplinary,\u201d which unquestionably entitled Warning to union representation. If this were not enough, the pervasive intermingling of references to \u201cremediation\u201d and \u201cdiscipline\u201d throughout the 2004-05 school year was reasonably confusing to such a degree as to allow Warning, assisted by Wierzbicki, to question in good faith the evaluative process, as granted by the collective-bargaining agreement.\nAccordingly, because Warning was nontenured, her right to union representation at the 2004-05 meetings depended on whether the collective-bargaining agreement granted her that right. The record clearly shows that it did. I conclude that Warning had the .right to union representation. Because Warning did seek union assistance during the 2004-05 meetings with the District, I would hold that Warning engaged in protected union activity, satisfying the first element of her prima facie case.\n2. Antiunion Motivation\nThis court ends its analysis by concluding that Warning failed to establish the first element of her prima facie case. Because I conclude that Warning did establish this element, I now analyze the remaining elements of her complaint.\nThe third element of a prima facie case for a violation of section 14(a)(3) of the IELRA requires the employee to prove that he or she was discharged for engaging in the protected union activity. Bloom Township, 312 Ill. App. 3d at 957. The complainant must establish that \u201c \u2018the employee\u2019s protected conduct was a substantial or motivating factor in the adverse action.\u2019 \u201d City of Burbank, 128 Ill. 2d at 345 (quoting National Labor Relations Board v. Transportation Management Corp., 462 U.S. 393, 401 (1983)). Surveying federal labor law decisions, this court explained:\n\u201cAntiunion motivation may reasonably be inferred from a variety of factors, such as an employer\u2019s expressed hostility towards unionization, together with knowledge of the employee\u2019s union activities [citation], proximity in time between the employees\u2019 union activities and their discharge [citation], disparate treatment of employees or a pattern of conduct which targets union supporters for adverse employment action [citations], inconsistencies between the proffered reason for discharge and other actions of the employer [citation], and shifting explanations for the discharge [citations].\u201d City of Burbank, 128 Ill. 2d at 346.\nSince motive is a question of fact, the Board may infer discriminatory motive from either direct or circumstantial evidence. Id. at 345.\nIn the present case, Warning\u2019s protected union activity was seeking union assistance in her meetings with the District during the 2004-05 school year. The Board found that Warning has established the element of antiunion motivation for two reasons: expressed hostility and shifting explanations for the nonrenewal of Warning\u2019s contract. Neither of these findings is clearly erroneous.\nFirst, the Board found that \u201cRunyan and Dr. Pointer repeatedly expressed hostility toward Warning\u2019s union activity in the form of representation by Wierzbicki.\u201d Indeed, Principal Runyan\u2019s animus against this protected union activity cannot seriously be disputed. The record is replete with Runyan\u2019s oral and written statements to Warning that he did not want union representative Wierzbicki to assist Warning at the meetings.\nSecond, the Board found evidence of shifting explanations for the District\u2019s actions in Runyan\u2019s April 22, 2005, evaluation, his final written evaluation in which he recommended nonrenewal of Warning\u2019s contract. I quote the evaluation in relevant part:\n\u201cYou received an unsatisfactory rating in two main areas: Instructional Presentation and Professional Communication/Responsibilities. *** There has been some demonstrated improvement in the area of instruction. You have taken steps to align your instruction to state standards in design and implementation.\n[While] you were working on the plan to correct deficiencies more concerns were raised due to your lack of ability to communicate. You made the choice to be late for several scheduled meetings and failed to participate in a process that enabled you and me to communicate freely. Your actions have created barriers in our ability to effectively communicate. The process was tension driven and failed to honestly develop to a relationship to move forward in this area.\n*** You failed to consistently provide prepared evidence when requested and seemed inadequately prepared for our meetings. We were unable to get into open dialog during our meeting time. During the conversations you failed to see your role in the breakdown of communications. The corrective process became cumbersome and chaotic due to the choices you made.\nBy the time this process was over there appeared to be little growth in the area of improved communication. Therefore it is my assessment that you have not met the terms of the plan to correct deficiencies. It will be my recommendation to [the District] that you be terminated.\u201d (Emphases added.)\nThe Board observed that, according to the evaluation, Warning failed to remediate concerning \u201cprofessional communication,\u201d yet the same document states that Warning had \u201cdemonstrated improvement in the area of instruction,\u201d yet the District contended before the Board that Warning was discharged because of \u201cinadequate teaching abilities.\u201d The Board, as the finder of fact, could infer a discriminatory motive from these shifting explanations. Additionally, the Board found that the \u201cactions\u201d and \u201cchoices\u201d to which Runyan refers were Warning\u2019s repeated assertions of her right to union representation, as granted by the collective-bargaining agreement. The Board found that these remarks were additional evidence of the District\u2019s expressed hostility toward Warning\u2019s protected union activity. The manifest weight of the evidence supports the Board\u2019s finding of antiunion motivation and, consequently, its finding that Warning has proved a prima facie case of discriminatory discharge in violation of 14(a)(3) of the IELRA.\n3. District\u2019s Affirmative Defense\nOnce a complainant establishes a prima facie case:\n\u201cthe employer can avoid a finding that it violated the statute by demonstrating that the discharged employee would have been fired for a legitimate business reason notwithstanding the employer\u2019s antiunion animus. [Citations.] Merely proffering a legitimate business reason for the adverse employment action does not end the inquiry, for it must be determined whether the reasons advanced are bona fide or pretextual. If the suggested reasons are a mere litigation figment or were not relied upon, then the determination of pretext concludes the inquiry. [Citation.] However, where the employer advances legitimate reasons for the discharge and is found to have relied upon them in part, then the case is characterized as one of \u2018dual motive\u2019 and the employer must demonstrate by a preponderance of the evidence that the employee would have been terminated notwithstanding his union involvement.\u201d City of Burbank, 128 Ill. 2d at 346-47.\nAccord Bloom Township, 312 Ill. App. 3d at 960; Georgetown-Ridge, 239 Ill. App. 3d at 464. This burden shifting has been characterized as an affirmative defense for the employer. See Transportation Management Corp., 462 U.S. at 400.\nThe Board concluded that this was a \u201cpretext case.\u201d The Board noted the District\u2019s asserted reasons for non-renewing Warning\u2019s contract \u2014 her alleged failure to re-mediate concerning professional communications and her allegedly inadequate teaching abilities. The Board found that Runyan\u2019s April 22, 2005, evaluation of Warning evinced the pretextual nature of the District\u2019s asserted reasons. The evaluation indicated that the District was not discharging Warning based on her allegedly inadequate teaching abilities, because Runyan stated in the evaluation that Warning had shown \u201cdemonstrated improvement\u201d in the area of instruction. The Board observed that the evaluation also contained \u201cveiled references\u201d to Warning\u2019s insistence that she be represented by Wierzbicki. Moreover, according to the Board, \u201cRunyan inaccurately stated in the memorandum that Warning was late for several scheduled meetings and failed to provide \u2018prepared evidence when requested.\u2019 The inaccuracy of these statements demonstrates their pretextual nature.\u201d\nThe Board also observed that, during the 2004-05 school year, another employee was under a corrective action plan with Runyan and was represented by a union representative other than Wierzbicki. This employee was not dismissed. The Board found that the District objected particularly to \u201cWierzbicki\u2019s assertiveness in representing Warning.\u201d\nWhether an employer\u2019s articulated reason for its employment decision is pretextual is a question of fact for the Board to decide, and its decision will not be disturbed on review unless it is against the manifest weight of the evidence. See City of Burbank, 128 Ill. 2d at 350; Bloom Township, 312 Ill. App. 3d at 957; Georgetown-Ridge, 239 Ill. App. 3d at 465. Further, the ALJ heard the testimony of several witnesses, including Warning, Wierzbicki, and Dr. Pointer. It was the Board\u2019s function, as the finder of fact, to determine the weight to be given the evidence and to assess the credibility of the witnesses. Marconi v. Chicago Heights Police Pension Board, 225 Ill. 2d 497, 540 (2006); Jackson v. Board of Review of the Department of Labor, 105 Ill. 2d 501, 513 (1985); Board of Regents of Regency Universities v. Illinois Educational Labor Relations Board, 208 Ill. App. 3d 220, 230 (1991). Here, the evidence supports the Board\u2019s finding that the District\u2019s stated reasons for non-renewing Warning\u2019s contract were pretextual and that the nonrenewal was actually the product of unlawful discrimination. I would hold that the Board\u2019s finding of pretext was not against the manifest weight of the evidence.\nIn sum, the collective-bargaining agreement granted Warning the right to union representation at her meetings with the District during the 2004-05 school year. Further, the record clearly shows that Warning was discharged for engaging in this protected union activity. In nonrenewing Warning\u2019s contract, Dr. Pointer expressly stated that Warning failed to correct the two deficiencies that Principal Runyan proffered in his March 1, 2005, corrective deficiency plan. The first deficiency that Runyan alleged was \u201cprofessional communication,\u201d which pertained to the December 2004 disciplinary matter, which clearly allows for union representation. The second alleged deficiency was Warning\u2019s \u201cinstructional presentation,\u201d which, as the Board observed, Runyan concluded that Warning had \u201cdemonstrated improvement.\u201d Warning had the right, with the assistance of Wierzbicki, to question in good faith whether the format of Warning\u2019s evaluation constituted a \u201cviolation, misinterpretation, or misapplication\u201d of the collective-bargaining agreement. The manifest weight of the evidence supports the Board\u2019s findings that Warning established a prima facie case of a violation of section 14(a)(3) of the IELRA, and that the District\u2019s proffered reasons for nonrenewing Warning\u2019s contract were pretextual. Consequently, I would uphold the Board\u2019s determination that the District committed an unfair labor practice as not clearly erroneous.\nB. Remedy\nBecause this court holds that the District\u2019s conduct did not constitute an unfair labor practice, my colleagues in the majority do not address whether granting Warning tenure was an appropriate remedy. Although the District committed an unfair labor practice when it dismissed Warning, I conclude that tenure is not the appropriate remedy. Rather, I would restore Warning to a final probationary year.\nAfter finding that the District violated section 14(a)(3) and, derivatively, section 14(a)(1) of the IELRA, the ALJ recommended that Warning be reinstated to her teaching position and awarded back pay. Further, because Warning was dismissed at the end of her fourth and final probationary year, the ALJ recommended that Warning be granted tenure. The Board adopted this recommended remedy. However, dissenting in part, two members of the Board concluded that an award of tenure is beyond the authority of the Board. The appellate court confirmed the decision of the Board, including the remedy of tenure. 392 Ill. App. 3d at 639-40.\nPursuant to section 15 of the IELRA, if the Board finds that a party has committed an unfair labor practice, the Board is \u201cempowered to issue an order requiring the party charged to stop the unfair practice, and may take additional affirmative action.\u201d (Emphasis added.) 115 ILCS 5/15 (West 2004). As earlier observed, the IELRA closely parallels the NLRA, including section 15 of the IELRA and section 10 of the NLRA. Compare 115 ILCS 5/15 (West 2004), with 29 U.S.C. \u00a7160(c) (2000). In accord with federal decisions construing the NLRA, our appellate court has held that remedial orders of the Board are reviewed for abuse of discretion. Paxton-Buckley-Loda Education Ass\u2019n v. Illinois Educational Labor Relations Board, 304 Ill. App. 3d 343, 353 (1999). The court in Paxton-Buckley-Loda explained that the Board has \u201c \u2018substantial flexibility and wide discretion to ensure that victims of unfair labor practices be returned to the position that would have obtained had the illegal conduct not occurred.\u2019 [Citation.]\u201d Id. Therefore, the purpose of the Board in fashioning a remedy in an unlawful labor practice case is to order a \u201cmake-whole\u201d remedy that achieves this end. Id. at 353-54.\nHowever, the Board has no authority with respect to the interpretation of the School Code. In the context of the NLRA, the United States Supreme Court has observed:\n\u201c[T]he Board [NLRB] has not been commissioned to effectuate the policies of the [NLRA] so single-mindedly that it may wholly ignore other and equally important Congressional objectives. Frequently the entire scope of Congressional purpose calls for careful accommodation of one statutory scheme to another, and it is not too much to demand of an administrative body that it undertake this accommodation without excessive emphasis upon its immediate task.\u201d Southern S.S. Co. v. National Labor Relations Board, 316 U.S. 31, 47 (1942).\nThus, where the policies of the NLRA conflict with another federal statute, the NLRB cannot ignore the other statute. Rather, it must fully enforce the requirements of its own statute, the NLRA, but must do so, as far as possible, in a manner that minimizes the impact of its actions on the policies of the other statute. Can-Am Plumbing, Inc. v. National Labor Relations Board, 321 F.3d 145, 153-54 (D.C. Cir. 2003); see McLean Trucking Co. v. United States, 321 U.S. 67, 79-80 (1944) (same, Interstate Commerce Commission).\nBased on this reasoning, I conclude that the collective-bargaining agreement in the present case neither restricted nor expanded the powers conferred or the rights granted by section 24 \u2014 11 of the School Code. See Illinois Education Ass\u2019n Local Community High School District 218 v. Board of Education of School District 218, Cook County, 62 Ill. 2d 127, 130-31 (1975). This court has explained the significance of teacher tenure as follows:\n\u201cThe dispositive factor in our consideration is a determination of the intent of the legislature in enacting sections 24 \u2014 11 and 24 \u2014 12 of the School Code. One objective of teacher tenure is \u2018to assure continuous service on the part of teachers of ability and experience.\u2019 [Citation.] The tenure system is, we believe, intended to provide continuity and stability for students; provide some degree of job security, thus affording teachers the ability to pursue a career free from arbitrary hiring and firing; attract teachers of high quality; and retain experienced teachers. Since, however, the statutes create liabilities where none would otherwise exist, they must be strictly construed in order not to unduly interfere with the responsibility of local boards to efficiently operate the educational systems.\u201d Johnson v. Board of Education of Decatur School District No. 61, 85 Ill. 2d 338, 344 (1981).\nAccordingly, the Board\u2019s authority to order make-whole relief does not extend to an award of tenure, which is a decision section 24 \u2014 11 of the School Code vests in the District. Now that the Board has set aside the District\u2019s unlawful nonrenewal of Warning\u2019s contract, the District must be given the opportunity to exercise its statutory discretion regarding tenure.\nThe two Board members who dissented on the issue of awarding Warning tenure concluded as follows:\n\u201cThe proper remedy in this case would be to reinstate Warning for another final probationary year and order that she be evaluated by someone other than Principal Benoit or Dr. Betty Pointer. *** This remedy, rather than reinstatement with tenure, would place Warning in \u2018the position that would have obtained had the illegal conduct not occurred.\u2019 [Paxton-Buckley-Loda, 304 Ill. App. 3d at 353.] If Warning had not been non-renewed on the basis of her union activity, there would have been an assessment by [the District] as to whether tenure was appropriate on other grounds. Putting Warning in the position in which she would have been if a decision had not been made to non-renew her on the basis of her union activity includes allowing such an assessment.\u201d\nI agree and would so hold. Courts must uphold and enforce the rights granted by collective-bargaining agreements. In fulfilling this duty, however, courts must be vigilant not to intrude upon the province of educational employers as provided by the School Code.\nIII. CONCLUSION\nFor the foregoing reasons, I would affirm in part the judgment of the appellate court, which confirmed the Board\u2019s decision. I would uphold the Board\u2019s determination that the District committed an unfair labor practice when it dismissed Warning. However, I disagree with the Board that tenure is the proper remedy. Rather, I would restore Warning to a final probationary year under the conditions described in the Board\u2019s partial dissent.\nJUSTICE THEIS joins in this dissent.\nDissenting Opinions Upon Denial of Rehearing\nThis court cites section 34 \u2014 84 of the School Code (105 ILCS 5/34 \u2014 84 (West 2004)) for this four-year probationary period. 242 Ill. 2d at 100 n.2. This section provides specifically for appointments and promotions of teachers in cities having a population exceeding 500,000 persons. However, section 24 \u2014 11 expressly states: \u201cThe employment of any teacher in a program of a special education joint agreement *** shall be under this and succeeding Sections of this Article.\u201d 105 ILCS 5/24 \u2014 11 (West 2004).\nThe District concedes that Warning established the second element of her prima facie case. The District indisputably knew of Warning\u2019s union activity. On multiple occasions during the 2004-05 school year, Principal Runyan met personally with Warning and her union representative, Wierzbicki. Also, Runyan continually referred to Warning \u201chaving the Union involved,\u201d and directed Warning not to bring union representation with her to their meetings.\nTherefore, this court\u2019s characterization of Warning as \u201ctaking an assertive and confrontational stance with regard to her evaluation\u201d (242 Ill. 2d at 122) is not only erroneously pejorative, but also contrary to this express Board recognition.\nThe Board reasoned: \u201cIn this case it is not alleged that the District violated the [IELRA] by denying Warning union representation, but rather that it retaliated against her for having union representation. \u2019 \u2019\nThe fact that other employees had union representation during meetings with District personnel underscores my belief that the collective-bargaining agreement entitled Warning to such assistance.", "type": "dissent", "author": "JUSTICE FREEMAN," }, { "text": "CHIEF JUSTICE KILBRIDE,\ndissenting:\nI would allow rehearing in this case for all the reasons stated in Justice Freeman\u2019s dissent upon denial of rehearing. In addition, I believe this court should allow rehearing to consider the appropriate remedy for the unfair labor practice in this case.\nThe petitioners ask this court to address the appropriate remedy for the unfair labor practice, contending that the Board\u2019s \u201cmake-whole\u201d remedy of reinstatement with acquisition of tenure should be affirmed. I agree. As noted in my dissent (242 Ill. 2d at 124 (Kilbride, C.J., dissenting)), the Board has wide discretion in fashioning \u201cmake-whole\u201d remedies in unfair labor practice cases. Paxton-Buckley-Loda Education Ass\u2019n, 304 Ill. App. 3d at 353-54. The Board did not abuse its discretion in reinstating Warning\u2019s teaching contract with the consequence that she receive tenure. I believe the appellate court properly confirmed the Board\u2019s decision, including its remedy of reinstatement of Warning\u2019s employment. I would allow rehearing to address the appropriate remedy for the unfair labor practice as well as the points identified in Justice Freeman\u2019s dissent upon denial of rehearing.", "type": "dissent", "author": "CHIEF JUSTICE KILBRIDE," }, { "text": "JUSTICE FREEMAN,\ndissenting:\nWarning and the Union petitioned for rehearing in this case. Petitioners request this court to reconsider its decision reversing the judgment of the appellate court and setting aside the decision of the Illinois Educational Labor Relations Board. I would allow rehearing. This decision was erroneous on multiple levels. This court overlooked dispositive legal principles, ignored undisputed facts, and misapplied the law to the facts. Further, this decision may have consequences that my colleagues in the majority surely could not have intended. Therefore, I dissent from the denial of the petition for rehearing.\nI. The Collective-Bargaining Agreement\nPetitioners claim that this court overlooked that, \u201c[a]s a non-tenured teacher, Warning\u2019s right to have a corrective deficiency plan arises solely out of the collective bargaining agreement.\u201d I agree. My colleagues in the majority overlooked the legal centrality of the collective-bargaining agreement in this case. Lacking this focus, with corresponding analysis, this court reached a result that is contrary to settled labor law.\nOne of the fundamental policies of the NLRA and the IELRA is freedom of contract. Indeed, it is a \u201cfundamental principle that a collective bargaining agreement constitutes a contract.\u201d Kozura v. Tulpehocken Area School District, 791 A.2d 1169, 1174 (Pa. 2002). The United States Supreme Court has recognized that the \u201cfundamental premise\u201d of the NLRA is private bargaining without any official compulsion over the actual terms of the contract, but with governmental supervision of only the bargaining procedure. H.K. Porter Co. v. National Labor Relations Board, 397 U.S. 99, 108 (1970). Indeed, federal labor law is chiefly designed to promote the formation of the collective-bargaining agreement and the private settlement of disputes under it. Mulvihill v. Top-Flite Golf Co., 335 E3d 15, 24 (1st Cir. 2003); United Telegraph Workers v. Western Union Corp., 771 F.2d 699, 704 (3d Cir. 1985).\nCorrespondingly, the Illinois General Assembly has declared that the public policy of this state is \u201cto promote orderly and constructive relationships between all educational employees and their employers\u201d and that this \u201coverall policy may best be accomplished by *** requiring educational employers to negotiate and bargain with employee organizations representing educational employees and to enter into written agreements evidencing the result of such bargaining.\u201d 115 ILCS 5/1 (West 2004). Section 10 of the Illinois Educational Labor Relations Act (IELRA) mandated that the District and the Union \u201cconfer in good faith with respect to wages, hours and other terms and conditions of employment, and to execute a written contract incorporating any agreement reached by such obligation.\u201d (Emphasis added.) 115 ILCS 5/10 (West 2004).\nWhen the District and the Union negotiated in good faith about subjects such as discharge and remediation procedures, and memorialized the bargain that they struck in the collective-bargaining agreement, they created a set of rules governing their future relations. See Gratiot Community Hospital v. National Labor Relations Board, 51 F.3d 1255, 1261 (6th Cir. 1995); 242 Ill. 2d at 135-36 (Freeman, J., dissenting, joined by Theis, J.). In creating the collective-bargaining agreement, the District and the Union deliberately bargained for certain adjustments and concessions. The agreement embodies mutual assent and, during the duration of the contract, either party should be able to rely on the provisions previously bargained for during negotiation of the agreement. See Port Huron Education Ass\u2019n v. Port Huron Area School District, 550 N.W2d 228, 239-40 (Mich. 1996). \u201cAccordingly, any rights and remedies possessed by the union and the employer, as parties to the agreement, and by the employee, as a third-party beneficiary thereof, ultimately derive primarily from the language of the agreement itself.\u201d Kozura, 791 A.2d at 1174.\nOnce the collective-bargaining agreement is made, its own provisions govern the procedures for resolving disputes which arise under its terms. P.R. Mallory & Co. v. National Labor Relations Board, 411 F.2d 948, 952 (7th Cir. 1969). Provided that the terms of a collective-bargaining agreement do not violate or conflict with a statute or other controlling law, the rights and remedies delineated by the parties in a specific agreement must be respected. Kozura, 791 A.2d at 1174; In re White Mountain Regional School District, 908 A.2d 790, 794 (N.H. 2006) (same; holding that school district violated collective-bargaining agreement regarding teacher evaluation procedures). Therefore, where \u201ca collective bargaining agreement is in place, representation rights must be based upon, and may be limited by, that pact.\u201d Landers v. National R.R. Passenger Corp., 814 F.2d 41, 47 (1st Cir. 1987), aff'd, 485 U.S. 652 (1988).\nThe collective-bargaining agreement in this case, \u201cas is true in any collective bargaining agreement, represents a series of trade-offs between an employer and 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 reason.\u201d Espinal v. Royal Caribbean Cruises, Ltd., 253 F.3d 629, 632 (11th Cir. 2001). Because of the fundamental policy of freedom of contract, the parties are generally free to agree to whatever specific rules they like, and in most circumstances it is beyond the competence of regulatory agencies or the courts to interfere with the parties\u2019 choice. See Department of the Navy, Marine Corps Logistics Base, Albany, Georgia v. Federal Labor Relations Authority, 962 F.2d 48, 57 (D.C. Cir. 1992). A court must enforce a collective-bargaining agreement as written so as to give effect to the intent of the contracting parties. A court may not \u201cabrogate a lawful agreement merely because one of the bargaining parties is unhappy with a term of the contract and would prefer to negotiate a better arrangement.\u201d National Labor Relations Board v. United States Postal Service, 8 F.3d 832, 836 (D.C. Cir. 1993).\nIn the present case, this court\u2019s only reference to the dispositive significance of the collective-bargaining agreement is found near the end of the majority opinion, where the court erroneously concludes: \u201cWarning\u2019s proof that she engaged in a protected union activity is lacking because she has provided no evidence that she was entitled, either by law or contract, to union representation at remediation meetings.\u201d 242 Ill. 2d at 121. Without express analysis, the court appears to concede that the collective-bargaining agreement could have entitled Warning to union representation at the 2004-05 meetings. However, this court relies on only one portion of one section of the collective-bargaining agreement. The court reasons:\n\u201cThe collective-bargaining agreement here does not explicitly give employees the right to union representation at remediation meetings. Rather, our reading of the contract indicates to us that the right to union representation does not attach to postobservation conferences and remediation, where the possible \u2018disciplinary action\u2019 the employee faces is performance based. We reach this conclusion based on section 3 \u2014 8(F) of the collective-bargaining agreement, which specifically provides, \u2018Evaluative conclusions and remediation decisions are made in the sole discretion of the evaluating supervisor and are non-grievable and non-arbitrable.\u2019 This being so, a union representative would have no official role to play at postobservation conferences and remediation meetings.\u201d 242 Ill. 2d at 121-22.\nThis court did not consider the relevant provisions of the collective-bargaining agreement.\nIn my dissent, I referenced several sections of the collective-bargaining agreement that indisputably granted Warning the right to union representation at the meetings during the 2004-05 school year. See 242 Ill. 2d at 129-30 (Freeman, J., dissenting, joined by Theis, J.). Significantly, the majority cited only part of section 3 \u2014 8F of the collective-bargaining agreement. That entire section reads as follows, with the part omitted from the majority opinion italicized: \u201cEvaluative procedures, contained herein, are subject to the grievance procedure. Evaluative conclusions and remediation decisions are made in the sole discretion of the evaluating supervisor and are non-grievable and non-arbitrable.\u201d (Emphasis added.) Further, my colleagues in the majority omit entirely section 7H of the employee handbook, which supplements the collective-bargaining agreement as follows: \u201cEvaluative procedures, contained herein, including those pertaining to employee remediation, are subject to the grievance procedure.\u201d (Emphasis added.) Also, section 3 \u2014 10A provides that a teacher is entitled to union representation for disciplinary matters. These provisions supplied the context and justification for Warning\u2019s actions.\nWhen the relevant sections of the collective-bargaining agreement are viewed in their entirety, it is clear to see where the court goes off track. Rehearing should be granted in order to allow this court to apply fundamental principles of labor law to the fairly-bargained-for agreement in this case.\nII. Protected Union Activity\nPetitioners ask this court to reconsider its conclusion that Warning failed to prove that she was engaged in protected union activity because she failed to prove 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 was engaged. Petitioners suggest that had this court considered these areas, the court would have concluded that the District discharged Warning for engaging in the protected union activity. These points are well-taken.\nThis court did not consider the actions that petitioners took in reliance on the collective-bargaining agreement, and its conclusion that the record contains no evidence of Warning\u2019s collective-bargaining rights is alarming. Indeed, the record before us contains undisputed facts that entitled Warning to union representation.\nIt is undisputed that Dr. Clasberry\u2019s December 8, 2004, letter involved a disciplinary matter, which entitled Warning to union representation, and that the letter directed Warning to meet with Dr. Clasberry and Runyan to discuss her progress regarding that disciplinary matter. See 242 Ill. 2d at 131-32 (Freeman, J., dissenting, joined by Theis, J.). Also, at the March 1, 2005, meeting with Principal Runyan, Warning and Wierzbicki questioned the procedure that Runyan employed to evaluate Warning. At the meeting, Warning and Wierzbicki contended that Runyan used the wrong format. Warning brought the employee handbook to the meeting. She and Wierzbicki pointed to the prescribed evaluation format that Runyan should have used. These facts are found in paragraph 15 of the parties\u2019 \u201cJoint Statement of Uncontested Facts\u201d (emphasis added) and the uncontested testimony of Warning and Wierzbicki.\nApplying the relevant provisions of the collective-bargaining agreement to the undisputed facts of record, Warning was clearly entitled to union representation at the meetings during the 2004-05 school year. The collective-bargaining agreement entitled Warning to union assistance insofar as she: (1) questioned her evaluative procedure; (2) responded to the December 2004 disciplinary matter; and (3) was reasonably confused by Runyan\u2019s express intermingling of remediation and disciplinary issues. See 242 Ill. 2d at 144 (Freeman, J., dissenting, joined by Theis, J.). Rehearing is necessary in order to provide an analysis that takes into account these undisputed facts.\nIII. Pejorative Remarks\nPetitioners claim that this court overlooked that, at the March 1, 2005, meeting with Principal Runyan, Warning\u2019s and Wierzbicki\u2019s request that Runyan use the correct format to evaluate Warning \u201carose solely out of the collective bargaining agreement and was an exercise of union activity.\u201d I agree. Rather than openly applying the clear provisions of the collective-bargaining agreement to the undisputed facts, my colleagues in the majority cast aspersions on Warning.\nIn its recitation of the facts, the court disparaged Warning\u2019s and Wierzbicki\u2019s actions at the March 1, 2005, meeting as follows: \u201cRather than discuss the evaluation, Warning and Beth took this opportunity to argue with Runyan about the evaluation form, itself.\u201d (Emphasis added.) 242 Ill. 2d at 104. In concluding their analysis, my colleagues again decried Warning as follows:\n\u201cAnd if Warning did not have a right to union representation, then Warning and the Association failed to prove that Warning was engaged in union activity when she insisted on having union representation at her evaluation conference and remediation meetings and when she chose to follow her representative\u2019s lead in taking an assertive and confrontational stance with regard to her evaluation and the administration\u2019s attempts to provide corrective instruction.\u201d (Emphasis added.) 242 Ill. 2d at 122.\nKnowing the central importance of the relevant and fairly-bargained-for provisions of the collective-bargaining agreement, and knowing what Warning sought pursuant to that pact, this court\u2019s denouncement of Warning in its misapplication of the law to the facts seems inappropriate to me. The Board has recognized that \u201cgive and take *** may occur at a post-observation conference.\u201d See 242 Ill. 2d at 142 (Freeman, J., dissenting, joined by Theis, J.). This court surely could not have intended to suppress this vital, Board-recognized dialogue between teachers under remediation and their employers.\nFurther, the court\u2019s apparent message was that Warning should not have stood up for herself, or should not have \u201ctalked back\u201d to Runyan, but rather should have \u201cminded her place.\u201d However, such a message is itself circumstantial evidence of employment discrimination. See, e.g., Coburn v. PN II, Inc., 372 F. App\u2019x 796, 801 (9th Cir. 2010) (unpublished opinion) (employer\u2019s comment to employee \u201cyou don\u2019t talk back\u201d); Jones v. Forrest City Grocery Inc., No. 4:06cv00944, 2008 U.S. Dist. LEXIS 48193 (E.D. Ark. June 23, 2008) (other employees \u201ctalked back\u201d to supervisor, while plaintiff-employee fired for \u201cinsubordination\u201d); Fulmore v. Home Depot, U.S.A., Inc., No. 1:03 \u2014 cv\u20140797\u2014DFH\u2014VSS, 2006 U.S. Dist. LEXIS 22909 (S.D. Ind. Mar. 30, 2006) (same). This court surely could not have intended to condone potentially discriminatory conduct.\nRegrettably, my colleagues in the majority publicly deprecated Warning for exercising her legal right to question her evaluative procedure, and expressly chastised her for exercising her right. I believe that rehearing is warranted to remedy this.\nIV Conclusion\nLitigants expect a court to fairly construe and apply a collective-bargaining agreement as any other contract. In the present case, however, this court did not fulfill these obligations. To the contrary, a public school teacher\u2019s livelihood and reputation were harmed because she exercised her legal, fairly-bargained-for right to union representation.\nFor the foregoing reasons, I dissent from the court\u2019s denial of the petition for rehearing.\nThis court overlooked the settled legal principle that federal interpretation of the National Labor Relations Act (NLRA) is persuasive authority in construing the Illinois Educational Labor Relations Act (IELRA). 242 Ill. 2d at 135-37 (Freeman, J., dissenting, joined by Theis, J.) (collecting cases).\nIndeed, another small example of the court\u2019s oversight is found in the court\u2019s erroneous citation to section 34 \u2014 84 of the School Code (105 ILCS 5/34 \u2014 84 (West 2004)). 242 Ill. 2d at 100 n.2; 242 Ill. 2d at 127 n.6 (Freeman, J., dissenting, joined by Theis, J.). In the petition for rehearing, petitioners note: \u201cAll parties agree that [section 24 \u2014 11] is the applicable School Code provision.\u201d Rehearing provides an opportunity to correct this.\nPetitioners contend that the Board\u2019s award of tenure to Warning was the appropriate remedy. However, I continue to believe that the appropriate remedy would have been to restore Warning to a final probationary year.", "type": "dissent", "author": "JUSTICE FREEMAN," } ], "attorneys": [ "Raymond A. Hauser and William E Gleason, of Sraga Hauser, LLC, of Flossmoor, for appellant.", "Paul R. Klenck, of Chicago, for appellees Rachel Warning and SPEED Education Association, IEA-NEA.", "Lisa Madigan, Attorney General, of Springfield (Michael A. Scodro, Solicitor General, and Ann C. Chalstrom, Assistant Attorney General, of Chicago, of counsel), for appellees Illinois Educational Labor Relations Board and Lynne O. Sered.", "Stanley B. Eisenhammer and Athena Christofalos, of Hodges, Loizzi, Eisenhammer, Rodick & Kohn, of Arlington Heights, for amici curiae the Illinois Association of School Boards and the Illinois Association of School Administrators.", "Melissa J. Auerbach, of Cornfield & Feldman, of Chicago, for amicus curiae Illinois Federation of Teachers." ], "corrections": "", "head_matter": "(No. 108785.\nSPEED DISTRICT 802, a/k/a Governing Board of Special Education Joint Agreement District 802, Appellant, v. RACHEL WARNING et al., Appellees.\nOpinion filed February 25, 2011.\nRehearing denied May 23, 2011.\nRaymond A. Hauser and William E Gleason, of Sraga Hauser, LLC, of Flossmoor, for appellant.\nPaul R. Klenck, of Chicago, for appellees Rachel Warning and SPEED Education Association, IEA-NEA.\nLisa Madigan, Attorney General, of Springfield (Michael A. Scodro, Solicitor General, and Ann C. Chalstrom, Assistant Attorney General, of Chicago, of counsel), for appellees Illinois Educational Labor Relations Board and Lynne O. Sered.\nStanley B. Eisenhammer and Athena Christofalos, of Hodges, Loizzi, Eisenhammer, Rodick & Kohn, of Arlington Heights, for amici curiae the Illinois Association of School Boards and the Illinois Association of School Administrators.\nMelissa J. Auerbach, of Cornfield & Feldman, of Chicago, for amicus curiae Illinois Federation of Teachers." }, "file_name": "0092-01", "first_page_order": 102, "last_page_order": 173 }