2015 IL 118043

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket Nos. 118043, 118072 cons.) 

THE BOARD OF EDUCATION OF THE CITY OF CHICAGO, Appellee,

v. THE ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD et al., 

Appellants. 

Opinion filed December 17, 2015.

JUSTICE FREEMAN delivered the judgment of the court, with opinion. 

Chief Justice Garman and Justices Thomas, Karmeier, Burke, and Theis 

concurred in the judgment and opinion. 

Justice Kilbride dissented, with opinion. 

OPINION

¶ 1 The Chicago Teachers Union, Local 1, IFT-AFT, AFL-CIO (Union) filed an 

unfair labor practice charge with the Illinois Educational Labor Relations Board 

(IELRB) against the Board of Education of the City of Chicago (Board). The Union 

alleged that the Board violated section 14(a)(1) of the Illinois Educational Labor 

Relations Act (Act) (115 ILCS 5/14(a)(1) (West 2010)) by refusing to arbitrate 

grievances. The IELRB found that the Board had violated the Act. On direct 

administrative review, a divided panel of the appellate court reversed the IELRB’s 

decision. 2014 IL App (1st) 130285. 
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¶ 2 This court allowed the Union’s and the IELRB’s separate petitions for leave to 

appeal (Ill. S. Ct. R. 315 (eff. Jan. 1, 2015)), and consolidated the causes for review. 

We now affirm the judgment of the appellate court, and remand to the IELRB for 

further proceedings. 

¶ 3 I. BACKGROUND

¶ 4 The appellate court adequately recited the stipulated facts. We need not repeat 

those details here. As defined in the Act, the Board is an educational employer (115 

ILCS 5/2(a) (West 2010)), and the Union is an employee organization (115 ILCS 

5/2(c) (West 2010)) that is an exclusive representative (115 ILCS 5/2(d) (West 

2010)) of a bargaining unit of the Board’s employees that includes teachers. The 

Board and the Union were parties to a collective bargaining agreement (CBA) in 

effect from 2007 to 2012. The CBA established a grievance procedure that 

culminated in final and binding arbitration. 

¶ 5 In June 2010, the Board notified the Union of a new policy. The Board was 

going to designate as ineligible for rehire nonrenewed probationary appointed 

teachers (PATs) who have been nonrenewed twice, or who have been given an 

unsatisfactory performance rating. At the end of the 2009-10 school year, the Board 

began implementing this policy by placing in the personnel files of such PATs a 

“Do Not Hire” (DNH) designation. 

¶ 6 The Union timely presented to the Board four grievances and demanded 

arbitration. Three of the grievances were on behalf of individual PATs and one was 

on behalf of all PATs. The Board had notified all of the individual PATs that they 

were being nonrenewed with the Chicago Public Schools for the following school 

year, but did not inform them that it had placed a DNH designation in their 

personnel files. The grievances alleged that the Board’s DNH policy violated 

various sections of the CBA. 

¶ 7 In the individual grievances, the Union requested the Board, respectively, to 

restore two grievants to their teaching positions at particular schools, and to allow 

the third grievant to seek a Chicago Public Schools position for which she qualifies. 

In the collective grievance, the Union requested that the Board: cease the practice 

of placing DNH designations in union members’ files if the terminations were not 

for cause; remove union members from the DNH list; notify all union members in 
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writing who have received a DNH designation; give the Union a list of all Union 

members on the DNH list; allow all Union members to seek employment within the 

Chicago Public Schools; and “[d]iscuss any and all changes that affect the working 

conditions and employment status” of union members with the Union. 

¶ 8 The Board notified the Union that it refused to arbitrate the grievances, which 

the Board viewed as an attempt by the Union to require the Board to hire persons 

whom the Board did not believe it should hire. The Board claimed that the subject 

matter of the grievances was excluded from arbitration because Board hiring 

decisions were exclusive management rights. 

¶ 9 The Union filed an unfair labor practice charge with the IELRB against the 

Board. The Union alleged that the Board violated section 14(a)(1) of the Act by 

refusing to arbitrate the grievances. The executive director of the IELRB 

investigated the Union’s charge and issued a complaint. See 115 ILCS 5/15 (West 

2010). In lieu of a hearing before an administrative law judge (ALJ), the parties 

filed a stipulated record. An ALJ ordered that the case be removed to the IELRB 

based on her certification that there were no determinative issues of fact requiring 

an ALJ’s recommended decision. In a written opinion and order, the IELRB found 

that, pursuant to the Act and the CBA, the Board had a duty, upon the Union’s 

request, to arbitrate the DNH grievances and, by refusing to do so, the Board 

violated section 14(a)(1) of the Act. The IELRB ordered the Board to arbitrate the 

grievances and to grant other relief requested by the Union.

¶ 10 On direct administrative review, a divided panel of the appellate court reversed 

the IELRB’s decision. 2014 IL App (1st) 130285. Reviewing the IELRB’s decision 

de novo, the appellate court concluded that the Board was contractually and 

statutorily not obligated to arbitrate the grievances and, therefore, held that the 

IELRB erred in finding that the Board violated section 14(a)(1) of the Act. Id. ¶ 44. 

The dissenting justice would have confirmed the IELRB’s decision, concluding 

that the grievances were arbitrable. Id. ¶ 69 (Gordon, P.J., dissenting). The Union 

and the IELRB each appeals to this court.

¶ 11 II. ANALYSIS

¶ 12 Before this court, the Union and the IELRB contend that the Board is obligated 

under the CBA to arbitrate the grievances. The Board contends that it has a 
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managerial right over hiring decisions that is contractually and statutorily excluded 

from arbitration.

¶ 13 A. Standard of Review 

¶ 14 At the outset, the parties disagree on the appropriate standard of review. On 

administrative review, our role is to review the decision of the administrative 

agency, here the IELRB, and not the determination of the appellate court. See Wade 

v. City of North Chicago Police Pension Board, 226 Ill. 2d 485, 504 (2007). The 

Act provides that a final order of the Board is subject to judicial review pursuant to 

the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2010)), taken 

directly to the appellate court. 115 ILCS 5/16(a) (West 2010). Under the 

Administrative Review Law, the scope of judicial review extends to all questions of 

law and fact presented by the record before the court. 735 ILCS 5/3-110 (West 

2010). The applicable standard of review, which determines the degree of 

deference given to the agency’s decision, depends on whether the issue presented is 

a question of law, fact, or a mixed question of law and fact. AFM Messenger 

Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 390 (2001). 

¶ 15 An agency’s conclusion on a question of law is reviewed de novo. A reviewing 

court is not bound by an agency’s interpretation of a statute. Cinkus v. Village of 

Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 210-11 (2008). 

However, the agency’s interpretation remains relevant where there is a reasonable 

debate about the meaning of the statute. Harrisonville Telephone Co. v. Illinois 

Commerce Comm’n, 212 Ill. 2d 237, 247 (2004). In contrast, “The findings and 

conclusions of the administrative agency on questions of fact shall be held to be 

prima facie true and correct.” 735 ILCS 5/3-110 (West 2010). Accordingly, when a 

court reviews an agency’s factual findings, the court will not reweigh the evidence, 

or substitute its judgment for that of the agency. Rather, the court simply 

determines whether the findings of fact are against the manifest weight of the 

evidence. American Federation of State, County & Municipal Employees, Council 

31 v. Illinois State Labor Relations Board, State Panel, 216 Ill. 2d 569, 577 (2005).

¶ 16 A mixed question of law and fact asks the legal effect of a given set of facts. In 

resolving a mixed question of law and fact, a reviewing court must determine 

whether established facts satisfy applicable legal rules. An agency’s conclusion on 

a mixed question of law and fact is reviewed for clear error. A decision is “clearly 
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erroneous” when the reviewing court is left with the definite and firm conviction 

that a mistake has been committed. AFM Messenger, 198 Ill. 2d at 391-95. 

¶ 17 Before this court, the Union and the Board agree that the appropriate standard 

of review is de novo because there are no determinative issues of fact and the 

IELRB only considered legal issues. For this reason, the appellate court reviewed 

the IELRB’s decision de novo. 2014 IL App (1st) 130285, ¶ 19. However, the 

IELRB contends that the clearly erroneous standard of review is appropriate 

because this case presents mixed questions of law and fact. 

¶ 18 We agree with the IELRB that the clearly erroneous standard of review is 

appropriate. The written order of the ALJ found that there were no questions of 

fact, and the IELRB decided the Union’s complaint solely on the legal issues 

presented. However, mixed questions of fact and law are “ ‘questions in which the 

historical facts are admitted or established, the rule of law is undisputed, and the 

issue is whether the facts satisfy the statutory standard, or to put it another way, 

whether the rule of law as applied to the established facts is or is not violated.’ ” 

American Federation of State, County & Municipal Employees, 216 Ill. 2d at 577 

(quoting Pullman-Standard v. Swint, 456 U.S. 273, 289 n.19 (1982)). Review for 

clear error is significantly deferential to an agency’s experience in construing and 

applying the statute that it administers. AFM Messenger, 198 Ill. 2d at 393-95. This 

court has recognized that “[d]etermination of whether specific issues are 

mandatorily bargainable or not is best left to the IELRB, which has the knowledge 

and experience to balance the equities in a given case. However, our legislature has 

placed guidelines in the Act as to what should, and should not be bargained.” 

Central City Education Ass’n v. Illinois Educational Labor Relations Board, 149 

Ill. 2d 496, 522 (1992). The main issue on review from the IELRB involves the 

application of the correct statutory interpretation of the Act to the facts. 

Accordingly, we apply the clearly erroneous standard of review. See City of 

Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 205 (1998); 

Chicago Teachers Union v. Illinois Educational Labor Relations Board, 334 Ill. 

App. 3d 936, 942 (2002). 

¶ 19 B. Arbitrability of Grievances 

¶ 20 Under section 14(a)(1) of the Act, “Educational employers, their agents or 

representatives are prohibited from *** [i]nterfering, restraining or coercing 
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employees in the exercise of the rights guaranteed under this Act.” 115 ILCS 

5/14(a)(1) (West 2010). A school district’s refusal to submit an employee 

grievance to binding arbitration under a collective bargaining agreement is a 

violation of section 14(a)(1) of the Act. Cobden Unit School District No. 17 v. 

Illinois Educational Labor Relations Board, 2012 IL App (1st) 101716, ¶ 19; 

Granite City Community Unit School District No. 9 v. Illinois Educational Labor 

Relations Board, 279 Ill. App. 3d 439, 442 (1996); Board of Trustees, Prairie State 

College v. Illinois Educational Labor Relations Board, 173 Ill. App. 3d 395, 409 

(1988). However, refusal to arbitrate is an appropriate method to challenge the 

issue of arbitrability. See Board of Education of Community School District No. 1, 

Coles County v. Compton, 123 Ill. 2d 216, 225-26 (1988); Niles Township High

School District 219 v. Illinois Educational Labor Relations Board, 379 Ill. App. 3d 

22, 24 (2007). A school district may refuse to arbitrate a grievance where: (1) there 

is no contractual agreement to arbitrate the substance of the dispute; or (2) the 

dispute is not arbitrable under section 10(b) of the Act (115 ILCS 5/10(b) (West 

2010)) because the subject matter of the dispute conflicts with Illinois law. Cobden 

Unit School District, 2012 IL App (1st) 101716, ¶ 19; Niles Township, 379 Ill. App. 

3d at 24. 

¶ 21 The Board’s position throughout these proceedings is that the decision to 

designate PATs as ineligible for rehire is a matter of inherent managerial policy for 

the selection of new employees. The Board contends that it did not contractually 

limit this authority and, further, that this authority is statutorily excluded from 

arbitration.

¶ 22 We first consider whether there was a contractual agreement to arbitrate the 

instant grievances concerning the DNH designations. In determining whether a 

school district is required to arbitrate a grievance, the mere existence of the dispute 

between the employer and the employee does not make the disputed matter subject 

to arbitration under a collective bargaining agreement. Rather, the IELRB must 

examine whether the grievance falls within the terms of the collective bargaining 

agreement. Cobden Unit School District, 2012 IL App (1st) 101716, ¶ 19. 

¶ 23 In the case at bar, article 3 of the CBA provides the following definition: “A 

grievance is a complaint involving a work situation; a complaint that there has been 

a deviation from, misinterpretation of or misapplication of a practice or policy; or a 

complaint that there has been a violation, misinterpretation or misapplication of 

any provisions of this Agreement.” As part of the grievance procedure, article 3-5 
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provides for binding arbitration. Further, article 34-4, concerning personnel files, 

provides as follows: 

“No derogatory statement about a teacher or other bargaining unit member 

originating outside of the Chicago public school system shall be placed in the 

teacher’s or other bargaining unit member’s personnel file, provided, further, 

that any official report or statement originating within the Chicago public 

school system may be placed in the teacher’s or other bargaining unit member’s 

personnel file only if the [person] is sent a dated copy thereof at the same time. 

The [person] may respond and such response shall be attached to the filed 

copy.”

Further, article 48-2 of the CBA provides in pertinent part: 

“The BOARD shall not be required to bargain over matters of inherent 

managerial policy within the meaning of the [Act] or Illinois School Code, 

which shall include such areas of discretion or policy as the functions of the 

BOARD, standards of service, its overall budget, the organizational structure 

and selection of new employees and direction of employees ***. The BOARD, 

however, shall be required to bargain collectively with the UNION with regard 

to policy matters directly affecting wages, hours and terms and conditions of 

employment as well as the impact thereon upon request by the UNION.” 

¶ 24 The IELRB found that “there is no express language excluding this matter from 

arbitration.” The IELRB determined that the DNH grievances were not 

contractually precluded from arbitration “[i]n light of the broad language in the 

grievance clause and the lack of exclusions from arbitration.” The agency viewed 

the management rights language in article 48-2 as pertaining to the Board’s 

“bargaining power, not arbitration.” 

¶ 25 The IELRB misconstrued the CBA. Pursuant to the Act, binding arbitration is a 

mandatory component in all collective bargaining agreements. 115 ILCS 5/10(c) 

(West 2010); see Compton, 123 Ill. 2d at 222-23. This court has repeatedly 

observed that employers have the right to refuse to bargain over “matters of 

inherent managerial policy.” However, employers must bargain over “wages, hours 

and other terms and conditions of employment.” 115 ILCS 5/4, 10(a) (West 2010); 

Central City, 149 Ill. 2d at 522; Compton, 123 Ill. 2d at 220. 
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¶ 26 In Central City, this court established a three-part test to determine whether a 

matter is subject to mandatory bargaining. First, is the matter one of “wages, hours 

and terms and conditions of employment?” “If the answer to this question is no, the 

inquiry ends and the employer is under no duty to bargain.” Central City, 149 Ill. 2d 

at 523. A term and condition of employment is something that an employer 

provides which intimately and directly affects the work and welfare of the 

employees. In addition to wages and hours, typical terms and conditions include 

health insurance and pension contributions. Vienna School District No. 55 v. 

Illinois Educational Labor Relations Board, 162 Ill. App. 3d 503, 507 (1987). 

¶ 27 In the case bar, we agree with the appellate court that the DNH grievances do 

not relate to terms and conditions of employment, but rather to the Board’s ability 

to initiate employment, which is a matter of managerial policy. 2014 IL App (1st) 

130285, ¶ 28. Although the CBA broadly defines a grievance, that broad definition 

does not, and as will be shown, cannot, pertain to the matters excluded from the 

bargaining process under the CBA, including the Board’s ability to make hiring 

decisions. 

¶ 28 Even if some provision in the CBA could be read to require that the DNH 

grievances be arbitrated, section 10(b) of the Act (115 ILCS 5/10(b) (West 2010)) 

would prohibit its enforcement because implementing the provision would violate 

or conflict with Illinois law. That section provides: 

“(b) The parties to the collective bargaining process shall not effect or 

implement a provision in a collective bargaining agreement if the 

implementation of that provision would be in violation of, or inconsistent with, 

or in conflict with any statute or statutes enacted by the General Assembly of 

Illinois.” 115 ILCS 5/10(b) (West 2010). 

In turn, section 4 of the Act provides in pertinent part: 

“Employers shall not be required to bargain over matters of inherent managerial 

policy, which shall include such areas of discretion or policy as the functions of 

the employer, standards of service, its overall budget, the organizational 

structure and selection of new employees and direction of employees.” 115 

ILCS 5/4 (West 2010). 

The instant DNH grievances are inarbitrable because their arbitration would 

conflict with section 4 of the Act.
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¶ 29 The arbitration of these grievances would also conflict with several sections of 

the School Code. “[A] school board has only those powers expressly conferred 

upon it by the General Assembly and those that are necessary to carry into effect the 

powers granted by the legislature.” Spinelli v. Immanuel Lutheran Evangelical 

Congregation, Inc., 118 Ill. 2d 389, 403 (1987) (citing Wesclin Education Ass’n v. 

Board of Education of Wesclin Community Unit School District, 30 Ill. App. 3d 67, 

75 (1975)). Section 34-84 mandates that the Board shall appoint teachers “for merit 

only, and after satisfactory service for a probationary period of 3 years.” 105 ILCS 

5/34-84 (West 2010). Also, section 10-22.4 of the Illinois School Code, which

authorizes a school district to dismiss a teacher “whenever, in its opinion, he is not 

qualified to teach, or whenever, in its opinion, the interests of the schools require it, 

subject, however, to the provisions of Sections 24-10 to 24-15, inclusive.” 105 

ILCS 5/10-22.4 (West 2010). This provision includes the power to terminate the 

employment of probationary teachers by the nonrenewal of their teachers’ 

contracts. This discretionary power may not be delegated to an arbitrator, or limited 

by a collective bargaining agreement. See Illinois Education Ass’n Local 

Community High School District 218 v. Board of Education of School District 218, 

Cook County, 62 Ill. 2d 127, 130-31 (1975); Wesclin, 30 Ill. App. 3d at 75-76. 

Thus, probationary teachers have no specific right to be retained by a school board. 

Rather, a school board may, subject to the provisions of the School Code, retain or 

dismiss probationary teachers entirely in its discretion. “In this situation, the 

probationary teacher is not discharged or dismissed so much as she is not asked to 

enter into continued contractual service.” Lockport Area Special Education 

Cooperative v. Lockport Area Special Education Cooperative Ass’n, 33 Ill. App. 3d 

789, 794 (1975). 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. “The Board may only agree to follow certain 

procedures before making a determination, which only the Board can make.” Id.; 

accord Cobden Unit School District, 2012 IL App (1st) 101716, ¶ 21.1

¶ 30 The instant DNH grievances attempt to force the Board to hire probationary 

teachers. As the appellate court observed, the relief that the Union sought from the 

Board included reinstating grievants to their particular jobs, or allowing grievants 

to seek employment within the Chicago Public School system. 2014 IL App (1st) 

 1

The Union contends that the Board’s failure to refer to the School Code before the IELRB 

precludes reference to it on administrative review. We disagree. Article 48-2 of the CBA and section

4 of the Act provide for the same management rights as these sections of the School Code.
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130285, ¶ 28. The grievances therefore conflict with the Board’s statutory authority 

to refuse to rehire probationary teachers, and the Board was not required to arbitrate 

them pursuant to section 10(b) of the Act. See id. ¶¶ 34-36. 

¶ 31 PATs are employed for a single school-year term, and the Board alone is vested 

with the selection of such employees as a matter of inherent managerial policy. 

Further, the Board’s policy of placing a DNH designation in the files of PATs 

following two nonrenewals or an unsatisfactory performance rating was within the 

Board’s authority because this policy directly relates to the Board’s exclusive right 

to determine its hiring guidelines. To the extent that PATs seek reinstatement, the 

disputed grievances are inarbitrable under both the CBA and section 10(b) of the 

Act. We agree with the appellate court that the Board was not obligated to arbitrate 

the instant grievances, and that the IELRB clearly erred in finding that the Board 

violated section 14(a)(1) of the Act. See id. ¶¶ 34-37. 

¶ 32 III. CONCLUSION

¶ 33 For the foregoing reasons, the judgment of the appellate court is affirmed, and 

the cause remanded to the IELRB for further proceedings. 

¶ 34 Affirmed and remanded.

¶ 35 JUSTICE KILBRIDE, dissenting: 

¶ 36 The issue presented in this appeal is whether the Board of Education of the City 

of Chicago (Board) committed an unfair labor practice by refusing to arbitrate 

grievances alleging the Board placed “Do Not Hire” (DNH) designations in certain 

probationary teachers’ personnel files without giving those teachers notice. There 

is no question that the ultimate decision on whether to rehire the probationary 

teachers cannot be made in the arbitration process, but is within the Board’s sole 

discretion. The grievants seek, among other things, enforcement of procedural 

protections in the parties’ collective bargaining agreement (CBA) prohibiting 

placement of statements in a teacher’s personnel file without giving the teacher 

notice and an opportunity to respond. The Illinois Educational Labor Relations 
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Board (IELRB) found that the Board committed an unfair labor practice by 

refusing to arbitrate the grievances. In my view, the IELRB’s decision is not clear 

error and should be confirmed. Accordingly, I respectfully dissent. 

¶ 37 On administrative review, this court reviews the administrative agency’s 

decision, not the decision of the appellate court. Wade v. City of North Chicago 

Police Pension Board, 226 Ill. 2d 485, 504 (2007). As the majority holds, the issues 

in this case present mixed questions of law and fact subject to review for clear error. 

A decision is clearly erroneous only when “the reviewing court, on the entire 

record, is ‘left with the definite and firm conviction that a mistake has been 

committed.’ ” AFM Messenger Service, Inc. v. Department of Employment 

Security, 198 Ill. 2d 380, 395 (2001) (quoting United States v. United States 

Gypsum Co., 333 U.S. 364, 395 (1948)). Review for clear error is significantly 

deferential to an administrative agency’s experience in construing and applying the 

statute it administers. AFM Messenger, 198 Ill. 2d at 393-95. 

¶ 38 In this case, the IELRB determined that the Board violated section 14(a)(1) of 

the Illinois Educational Labor Relations Act (Act) by refusing to arbitrate the DNH 

grievances. Section 14(a)(1) of the Act provides that “[e]ducational employers, 

their agents or representatives are prohibited from: (1) [i]nterfering, restraining or 

coercing employees in the exercise of the rights guaranteed under this Act.” 115 

ILCS 5/14(a)(1) (West 2010). An employer violates section 14(a)(1) and commits 

an unfair labor practice by refusing to arbitrate an arbitrable employee grievance. 

Board of Trustees, Prairie State College v. Illinois Educational Labor Relations 

Board, 173 Ill. App. 3d 395, 408-09 (1988). In determining whether a grievance is 

arbitrable, the IELRB must examine whether it falls within the terms of the 

collective bargaining agreement. Staunton Community Unit School District No. 6 v. 

Illinois Educational Labor Relations Board, 200 Ill. App. 3d 370, 376 (1990). A 

school district may refuse to arbitrate a grievance when: (1) the district did not 

contractually agree to arbitrate the dispute; or (2) the dispute is not arbitrable under 

section 10(b) of the Act (115 ILCS 5/10(b) (West 2010)) because its subject matter 

conflicts with Illinois law. Chicago Teachers Union v. Illinois Educational Labor 

Relations Board, 344 Ill. App. 3d 624, 636 (2003). 

¶ 39 This court must, therefore, first determine whether the IELRB clearly erred in 

finding that the parties contractually agreed to arbitrate the grievances involving 

placement of the DNH designations in probationary teachers’ personnel files. If the 
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IELRB did not clearly err on that point, we must consider whether it clearly erred in 

finding the grievances arbitrable under section 10(b) of the Act. 

¶ 40 Contractual Agreement to Arbitrate

¶ 41 Article 3 of the CBA defines a grievance as “a complaint involving a work 

situation; a complaint that there has been a deviation from, misinterpretation of or 

misapplication of a practice or policy; or a complaint that there has been a violation, 

misinterpretation or misapplication of any provision of this Agreement.” Article 

3-5 provides for binding arbitration as part of the grievance procedure. 

¶ 42 In this case, the IELRB observed that the language in the grievance clause is 

broad, allowing for arbitration of a grievance as long as it involves a “work 

situation.” The IELRB determined that the grievances are not contractually 

precluded from arbitration given the broad language in the grievance clause and the 

absence of any exclusions. In my view, the IELRB did not clearly err in finding the 

grievances arbitrable under the broad definition provided in the CBA. The basis for 

placing the DNH designations in probationary teachers’ personnel files was an 

evaluation of their conduct during work situations. 

¶ 43 Additionally, the grievances in this case allege a violation of specific 

procedural protections in the CBA governing the placement of reports or 

statements in a teacher’s personnel file. As the majority acknowledges, article 34-4 

of the CBA provides that: 

“No derogatory statement about a teacher or other bargaining unit member 

originating outside of the Chicago public school system shall be placed in the 

teacher’s or other bargaining unit member’s personnel file, provided, further, 

that any official report or statement originating within the Chicago public 

school system may be placed in the teacher’s or other bargaining unit member’s 

personnel file only if the teacher or other bargaining unit member is sent a dated 

copy thereof at the same time. The teacher or other bargaining unit member 

may respond and such response shall be attached to the filed copy.” 

¶ 44 The grievances state probationary teachers did not receive notice that DNH 

designations were placed in their files. The grievances further allege the Board’s 

policy violates specific provisions in the CBA, including article 34-4. Those 

allegations are clearly “complaint[s] that there has been a violation *** of any 
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provision of this Agreement” within the express language of the grievance clause. 

Accordingly, the IELRB did not clearly err in determining that those grievances fall 

within the broad language in the grievance clause. 

¶ 45 The majority, however, concludes that the IELRB misconstrued the CBA. The 

majority holds that employers may refuse to bargain over “matters of inherent 

managerial policy,” and the DNH grievances relate to a matter of managerial policy 

involving the Board’s ability to initiate employment or make hiring decisions, not 

to the terms and conditions of employment. Thus, the majority maintains that the 

matters alleged in the grievances are excluded from the bargaining process and 

cannot be covered by the grievance clause in the CBA. 

¶ 46 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. 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. The grievants seek, among other things, notice to teachers of any DNH 

designation placed in their personnel files and removal of designations placed in 

files in violation of article 34-4. Those grievances do not interfere with the Board’s 

right to make hiring decisions. Rather, they complain of a violation of a term and 

condition of employment involving placement of items in teachers’ personnel files.

¶ 47 The plain intent of article 34-4 is to provide some basic protection for teachers 

encountering the specific circumstances presented in this case. Absent enforcement 

of that provision, a teacher would have no recourse if a DNH designation were 

placed in his or her personnel file wrongfully or by mistake. Article 34-4 is directed 

at preventing the secret placement of derogatory statements or reports in personnel 

files with no notice to employees. Those are the precise complaints alleged by the 

probationary teachers in this case. 

¶ 48 The issue of whether the Board violated express procedural requirements in the 

CBA is arbitrable under the grievance clause. The IELRB did not clearly err in 

concluding the DNH grievances are arbitrable under the CBA.
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¶ 49 Arbitration Under Section 10(b) of the Act 

¶ 50 The majority also concludes that the IELRB committed clear error in finding 

the DNH grievances arbitrable under section 10(b) of the Act. The majority holds 

that arbitration of the grievances would conflict with section 4 of the Act (115 ILCS 

5/4 (West 2010)), stating employers are not required to bargain over “matters of 

inherent managerial policy,” and would also violate several provisions of the 

School Code providing for those same management rights. The majority’s 

determination is based on its claim that the DNH grievances interfere with the 

Board’s authority to decide whether to rehire probationary teachers. The majority 

states the “DNH grievances attempt to force the Board to hire probationary 

teachers.”

¶ 51 Section 4 of the Act states, in pertinent part: 

“Employers shall not be required to bargain over matters of inherent managerial 

policy, which shall include such areas of discretion or policy as the functions of 

the employer, standards of service, its overall budget, the organizational 

structure and selection of new employees and direction of employees. 

Employers, however, shall be required to bargain collectively with regard to 

policy matters directly affecting wages, hours and terms and conditions of 

employment as well as the impact thereon upon request by employee 

representatives.” 115 ILCS 5/4 (West 2010). 

¶ 52 The IELRB determined that section 4 does not apply to this case because it 

addresses bargaining, not arbitration. Section 4 does not indicate that the 

allegations of these grievances are prohibited subjects of bargaining or preclude 

arbitration of the grievances. In my view, the IELRB did not clearly err in finding 

section 4 inapplicable to this case.

¶ 53 Even if section 4 and the School Code provisions cited by the majority were 

applicable, however, the grievances in this case do not conflict with the Board’s 

authority to make hiring decisions. As noted above, the grievances allege violations 

of specific procedural protections set forth in the CBA. The grievances allege the 

Board violated article 34-4 of the CBA by placing DNH designations in 

probationary teachers’ personnel files without giving notice to the teachers. Article 

34-4 prohibits placement of official reports or statements in a teacher’s personnel 

file without giving the teacher notice and an opportunity to respond. The grievants 
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seek, in part, notice to teachers of any DNH designation placed in their personnel 

files and removal of designations placed in files in violation of article 34-4.

¶ 54 Those allegations do not conflict with the Board’s authority to make the 

ultimate decision on whether to rehire the probationary teachers. Rather, they seek 

to enforce basic procedural protections the parties bargained for in the CBA. The 

failure to give probationary teachers the notice and opportunity to respond required 

by article 34-4 is a violation of a term and condition of employment. 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. 

¶ 55 As the majority recognizes, the Board may agree to follow certain procedures 

before making hiring decisions. Supra ¶ 30 (citing Lockport Area Special 

Education Cooperative v. Lockport Area Special Education Cooperative Ass’n, 33 

Ill. App. 3d 789, 794 (1975), and Cobden Unit School District No. 17 v. Illinois 

Educational Labor Relations Board, 2012 IL App (1st) 101716, ¶ 21. In Lockport 

Area Special Education Cooperative, 33 Ill. App. 3d at 792, the appellate court 

observed that school boards had been “permitted to agree to procedural 

prerequisites to the exercise of [their] discretion” on whether to rehire probationary 

teachers, including “notice, hearing, conferences with the teacher and an 

opportunity to remedy alleged deficiencies.” (Emphasis omitted.) Article 34-4 is a 

procedure the Board agreed to follow before making its discretionary hiring 

decision. It does not interfere with the Board’s ultimate authority to decide whether 

to rehire probationary teachers. Accordingly, the IELRB did not commit clear error 

in finding the grievances arbitrable under section 10(b). 

¶ 56 In sum, I would hold that the IELRB did not clearly err in finding the DNH 

grievances in this case arbitrable under the CBA and section 10(b) of the Act. The 

IELRB’s decision that the Board violated section 14(a)(1) by refusing to arbitrate 

the grievances should be confirmed.