Saying to rule otherwise would illegally limit the ability of the Chicago Public Schools and other school districts to choose to hire or not hire teachers, the Illinois Supreme Court has rejected the Chicago Teachers’ Union’s attempt to force the Chicago Board of Education to arbitrate grievances over how CPS designates probationary teachers it ultimately opts not to hire.

In a 6-1 ruling, with Justice Thomas L. Kilbride dissenting, the high court said provisions in the Illinois Educational Labor Relations Act, which declared the school board’s managerial discretion over who to hire cannot be bargained over, took precedence over “broad language” in provisions of the CTU’s Collective Bargaining Agreement governing grievances.

The case arose out of the Chicago Board of Education’s 2010 notification to the CTU of a new policy to designate as ineligible for future employment in Chicago’s public schools so-called “probationary appointed teachers” – new teachers who have been given one-year employment contracts – whose employment CPS has decided twice not to renew. According to court documents, the board then began inserting “Do Not Hire” notices in the personnel files of those non-renewed probationary teachers.

The CTU responded by filing grievances against the Board of Education, saying the policy ran afoul of the teachers’ CBA. Specifically, the union said the DNH notices violated provisions barring the board from placing anything of the sort in a teacher’s personnel file without also informing the teacher and allowing the teacher a chance to dispute the insertion of the document or notice.

In its grievance actions, the CTU demanded CPS stop placing the DNH notices in the personnel files unless the decision to not renew a teacher’s employment was “for cause,” remove union members from the DNH list; notify all union members in writing who have received a DNH designation; give the CTU a list of all union members on the DNH list; allow all union members to seek employment within the Chicago Public Schools; and “discuss any and all changes that affect the working conditions and employment status” of union members with the union.

The CTU further demanded its specific grievants either be rehired to their former positions, or be permitted to apply for teaching positions for which they might qualify elsewhere within CPS.

The union demanded the grievances be sent to binding arbitration.

The matter was taken to the Illinois Educational Labor Relations Board, which found the CPS Board in violation of the CBA for refusing to arbitrate the grievances.

CPS appealed the matter to the Illinois First District Appellate Court for administrative review, where a three-justice panel ruled 2-1 to overturn the decision of the IELRB. The appeals panel said neither the law nor the CBA required the Board of Education to take the matters to arbitration.

The CTU and IELRB then appealed the matter to the Illinois Supreme Court.

On Dec. 17, a majority of the state’s high court justices said the appellate court and CPS were right, and the union and IELRB were incorrect.

The justices said the IELRB misconstrued both the CBA and its position relative to state law, finding, like the appellate court, under neither controlling document is CPS obligated to take to arbitration grievances of who it does or does not hire.

The majority opinion, authored by Justice Charles E. Freeman, stressed that the court’s majority believed the IELRB erred in interpreting the grievance provisions of the CTU’s CBA. But even if it did not misinterpret the CBA, no provision of the CBA would be allowed to conflict with either the Illinois Educational Labor Relations Act or the state School Code, which the justices said is clear in granting school boards the authority to select new employees or choose not to hire probationary teachers, free of any compulsory bargaining with a union.

“Probationary teachers have no specific right to be retained by a school board,” the majority said in its opinion. “Rather, a school board may, subject to the provisions of the School Code, retain or dismiss probationary teachers entirely in its discretion … The school board may not delegate this power by agreeing to dismiss teachers only for just cause, or agreeing to submit to binding arbitration whether or not there is just cause.”

In his dissent, Kilbride, however, argued the majority misconstrued the nature of the arguments. He said the central issue was not the seeming conflict between the grievance arbitration attempts and state law, but rather the CPS Board’s decision to place the Do Not Hire notices in the personnel files without notifying the affected teachers it had done so. That, he said, is the purported CBA violation that triggered the grievances, and so, the matter should fall under the grievance provisions and should be arbitrable.

“I agree that employment decisions are a matter of inherent managerial policy and the Board has the sole right to determine whether probationary teachers are rehired,” Kilbride said. “The grievances in this case, however, allege a clear violation of article 34-4 of the CBA, prohibiting placement of official reports or statements in a teacher’s personnel file without giving the teacher prompt notice and an opportunity to respond.”

This provision, he said, does not interfere with the Board’s right to make managerial decisions regarding teacher employment, but rather serves as protection for teachers who may wrongly have such a Do Not Hire document placed in their personnel files.

“Without the enforcement of article 34-4, the probationary teachers would have no recourse or opportunity to be heard if a DNH designation were placed in their file wrongfully or by mistake,” Kilbride said.

The Chicago Board of Education was represented in the action by attorneys James L. Bebley, Lee Ann Lowder and Sabrina Haake, all of the board’s Law Department.

The IELRB was represented by Illinois Solicitor General Michael A. Scodro and Assistant Illinois Attorney General Sharon A. Purcell, of Attorney General Lisa Madigan’s office.

The CTU was represented by attorney Kurtis Hale, of Poltrock & Giampietro, of Chicago, and CTU attorneys Thaddeus Goodchild and Graham Hill.

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