During the September term, the Illinois Supreme Court heard oral arguments in The Board of Education of the City of Chicago v. The Illinois Educational Labor Relations Board. Board of Education poses the question of whether the Illinois Educational Labor Relations Board erred in finding that the Board of Education was guilty of an unfair labor practice when it refused to arbitrate the Chicago Teachers Union’s grievances over the Board’s practice of placing “Do Not Hire” designations in the personnel files of certain non-renewed probationary appointed teachers. Our detailed summary of the underlying facts and lower court decisions is here.

The Union and the Board were parties to a Collective Bargaining Agreement from 2000 to 2012. In 2010, the Board alleged told the Union that it was placing a Do Not Hire designaton in the files of probationary appointed teachers who had been nonrenewed twice, or given an unsatisfactory performance rating. The Union filed several grievances, but the Board refused to arbitrate. The Union responded by filing an unfair labor practice charge. In December 2012, the Illinois Educational Labor Relations Board issued a written opinion and order finding that the Board of Education had violated Section 14(a)(1) of the Educational Labor Relations Act. The Appellate Court reversed.

Counsel for the Board began the argument. He explained that before the IELRB, the Chicago Board had made two arguments – that the Board’s management rights excluded the grievances, and that the Union’s complaints were not arbitrable. The Board determined that the matter was statutorily and contractually arbitrable. There are two appropriate reasons for a refusal to arbitrate, counsel explained – the contract excludes the matter, or there is forceful evidence of an intent to exclude; or the matter is not arbitrable under the Act because it is inconsistent with Illinois law. The proceeding begins with a review of limited scope – the Board asks whether, on their face, the grievances fall within the CBA. If so, then the matter goes to the arbitrator to argue the merits. The IELRB held that the matter fell within the limits of the contract – the argument that management rights covered the matter didn’t make the grievances non-arbitrable. Justice Thomas asked whether, given that a do not hire notice merely affected whether a teacher would be hired in the future, the notice was a work matter or a future hiring situation? Counsel responded that that was a question for the arbitrator. Justice Thomas again asked how that issue was a work situation. Counsel explained that if there’s a disagreement about the terms of the contract, that goes to the arbitrator. Justice Burke asked whether removal of the notice was tantamount to restricting the ability of the Board to decide who to hire. Counsel answered that these were procedural violations. Whenever an arbitrator decides a matter, it is reviewable by the Board, the Circuit Court and the Appellate Court. Arbitrability doesn’t depend on the arguments of the parties or the merits, or on speculation about the remedy the arbitrator might fashion.

Counsel for the Chicago Teachers’ Union followed. He argued that the grievance didn’t restrict the Board’s right to make hiring decisions. Nothing in the CBA restricts parties’ right to hire. The grievance arbitration process is aimed at maintaining the parties’ due process rights.

Counsel for the Chicago Board of Education followed, arguing that the Board doesn’t bargain or arbitrate over its right to decide who to hire. Counsel argued that there were two issues – the standard of review, and the question of whether the Board had the right to decide which employees to select. The standard of review, counsel argued, is de novo, with no deference to the agency’s interpretation. Whether something is substantively arbitrable is a question of law. Chief Justice Garman asked who decides the matter if there is a dispute over arbitration. Counsel answered that the matter is clear in the contract. Chief Justice Garman asked again who decides that matter. Counsel answered that the Union files an unfair labor practices grievance and the IELRB will decide it, but the Union has the right to take the matter up. Counsel argued that Wesclin Educational Association v. Board of Education of Wesclin Community Unit School District stands for the right to buy out probationary teachers.

Counsel for the IELRB led off the rebuttal, arguing that the Board’s finding on the failure to arbitrate, its interpretation of the Act and the enabling statute should all be granted deference. Chief Justice Garman asked whether the matter came to the Board on a stipulation of facts. Counsel responded that the case came up on a stipulated record. The Chief Justice asked whether the IELRB had merely applied the facts in the record to the terms of the agreement. Counsel answered that the first step is very limited – bedrock labor law is that disputes over a CBA go to arbitration. The process will merely continue to arbitration, and if there’s a problem, it’ll get corrected somewhere along the line. Justice Freeman asked counsel whether he was asking the Court to limit Central City Educational Association v. Illinois Educational Labor Relations Board to collective bargaining issues and not arbitration. Counsel answered yes, because arbitration enforces an already existing agreement. Central City was never meant to be the test for determining arbitration.

Counsel for the Teachers’ Union concluded with rebuttal, arguing that no provision in the CBA restricts the Board’s rights beyond merely abiding by fundamental fairness.

We expect Board of Education to be decided in four to six months.

Image courtesy of Flickr by Caitlyn Willows (no changes).