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How STEM became 'The Mayor's Pet School'.... Chicago Teachers Union's Unfair Labor Practice Complaint is Comprehensive

As the campaign by Chicago Mayor Rahm Emanuel and the administration of Chicago's public schools to get some Chicago elementary teachers to approve a waiver on the length of the school day entered its second week on September 9, 2011, the CTU filed an Unfair Labor Practice complaint with the Illinois Education Labor Relations Board (IELRB), outlining the charges it has been making against the CPS administration.

The Chicago Teachers Union discussed the issues in a lengthy press release issued on Friday September 9, 2011. The press release said:

CHICAGO – As the Chicago Public Schools (CPS) continues its costly campaign to discredit teachers and distort the conversation about what components make up a quality education for CPS students, on Thursday the Chicago Teachers Union (CTU) filed an unfair labor practice lawsuit against the Board of Education for coercing CTU-represented teachers at elementary and other schools to waive their labor rights in order to lengthen the school day this year. (Attached)

The lawsuit, filed with the Illinois Educational Labor Relations Board, contends CPS threatened to close schools if teachers did not approve contract modifications; interrogated teachers about their Union activities; directed teachers to report their communications with the Union; wrote and distributed the contract waiver; and banned CTU representatives from consulting with teachers before they were coerced into waiving parts of their labor contract.

Despite crying broke and citing a $200 million budget deficit, CPS has offered to pay schools willing to lengthen its school day this year a whopping $150,000 each which could cost taxpayers more than $100 million if implemented system-wide. So far only four schools have accepted the proposition and less than 1 percent of Union teachers have signed contract waivers.

“Asking our members to void parts of their own contract it is unethical and illegal,” said CTU President Karen GJ Lewis. “We want them to cease and desist from its unlawful activity, restore our teachers’ rights, post appropriate notices of its intent to extend school hours and tell us how they intend to make the school day better for our children. We’ve asked them over and over to work with us not against us.” For the past six weeks, CPS has been on a costly political crusade for a longer school day. The campaign is designed to get the public to accept and submit to policies that have no proven impact on improving education. In addition to presenting the media and taxpayers with erroneous, false and misleading data to support its unscientific position, Board officials have simultaneously painted teachers as villains because they demand not only to be fairly compensated for working longer hours but also because they have asked CPS to enrich the current curriculum by adding art, music, science, world languages and social studies rather than continuing to force them to teach to standardized tests.

“When it is in their political interests to say test scores have gone up they do so,” Lewis explained,” and when it is in their political interests to say they’ve gone down they do so. In order for mind-game to work they must tap into negative attitudes about our public schools and the children in them. CPS tries to justify its longer school day position at all costs because it has vested too many tax payer dollars in this public relations campaign. Sadly, they do not care if they have to demoralize our students and demonize our teachers to get it done.”

Ironically, as the administration attempts to silence teacher voices and mislead the public about extending the school day, the new schools CEO Jean-Claude Brizard has taken to the airwaves to spew false data about Chicago’s school day compared to other cities. (See CTU website) He came to Chicago from Rochester, New York, where the “teachers gave him a 95 percent vote of no confidence because he “did things to us not with us,” according to Rochester Teachers Association President Adam Urbanski.

Escalating the War Against CTU

The Chicago Teachers Union has taken its call for a better school day across the city by having its members speak at churches, community groups, parent organizations and civic organizations. Despite these efforts, misinformation continues. On Thursday, despite the misgivings of several aldermen, the Chicago City Council took a ceremonial vote in support of a longer school day.

On April 15, Mayor Rahm Emanuel told the Chicago Sun-Times that not only would the school day be longer he was not willing to “negotiate” with the Chicago Teachers Union and the six other unions that represent the bulk of CPS workers. “We are not going to argue about a longer school day,” he said at the time.

Earlier Emanuel told the Chicago Tribune: “I will work with the teachers' union to lengthen the learning day and school year because it's the right investment in our children and our city's global standing. Increased learning time will include academic, arts and athletics programs beyond the traditional school day …”

However, in the last few weeks the mayor, Brizard and CPS officials have done just the opposite.

“A couple of weeks ago I sat down with the mayor in his office to talk about how to roll out a longer school year and what components would go into making it a better school year for our students but he did not want to have that conversation,” said Lewis. “When I explained to him that a longer school day should not be used for warehousing or babysitting our youth he exploded, used profanity, pointed his finger in my face and yelled. At that point the conversation was over—soon thereafter we found ourselves subject to a full-scale propaganda war over a moot point.”

Lewis said the Union has always been willing to discuss the better school day when the administration lengthens it next year. She cautioned that the District should not rush into extending the day without the necessary planning to ensure the program is properly implemented.

Union officials remain in conversation with Brizard and other officials despite what is being said to the media. “We are the legal bargaining agent for teachers and paraprofessionals and it is appropriate for us to discuss how they will be compensated when the Board extends the school year. What is unfortunate is they have decided to blackmail us into longer work hours this year by dangling before us half of our contracted pay raise –money they claimed they did not have-- as if it’s some sort of concession.”

The Union is currently conducting research to illustrate what a better school day would look like for CPS students.

A copy of the complete complaint follows below here:

Chicago Public Schools Chief Executive Officer Jean-Claude Brizard (at microphone) spoke under the watchful eye of Mayor Rahm Emanuel in the midst of a media event on September 6, 2011 at the STEM (formerly Thomas Jefferson) Elementary School on Chicago's near west side. In the foreground of the photo above are some of the children from the newly established magnet school, who were used as extras during the event by STEM Principal Maria McManus (second from right above). Substance photo by George N. Schmidt.STATE OF ILLINOIS, BEFORE THE ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD

CHICAGO TEACHERS UNION, Charging Party,

v.

CHICAGO BOARD OF EDUCATION,

Respondent Employer.

CHARGING PARTY’S POSITION STATEMENT AND REQUEST FOR INJUNCTIVE RELIEF

Because the Chicago Teachers Union labor contract with the Chicago Board of Education defines the length of each school day, the Chicago Board of Education cannot lengthen the school day without the CTU’s consent to reopen the agreement. When the CTU rebuffed the CBE’s recent effort to do so, the CBE simply bypassed the Union and dealt directly with teachers at neighborhood elementary schools. It negotiated changes to both length of work day and compensation directly with teachers. It offered them inducements, threatened them with layoffs, and monitored their private communications with the Union, among other things, in connection with securing their votes to waive labor contract rights at those schools. It distorted beyond recognition a contract provision used for limited, individual school-based waivers of contract terms by failing to follow clear procedural requirements, using the waivers to undermine basic negotiated terms and conditions, and stacking contract waiver votes with non-members. It has also refused to respond to CTU requests for information about its conduct. Its actions violate Sections 14(a)(1), (3) and (5) of the Act.

By imposing longer school days on teachers, altering their negotiated compensation, and bypassing the CTU to deal directly with teachers, the CBE has irreparably harmed both the CTU and its members, and preliminary injunctive relief should be obtained under Section 16(d) of the Act.

Factual Background

The CBE administers the Chicago public school system. Of its approximately 40,000 employees, approximately 32,000 are represented by the Chicago Teachers Union (“Union”).

The CBE and the Union are parties to a collective bargaining agreement (“CBA”) for the period of July 1, 2007 through June 30, 2012 (the relevant excerpts are attached hereto as Exhibit A; all exhibits are in the attached exhibit binder). The CBA clearly and unambiguously set the length of work days in elementary schools. Article 4 Sec. 4-6 provides that, since the 2004-05 school year, “the regular school day for elementary school teachers shall not exceed seven hours with a continuous duty-free lunch period of forty-five minutes.”(Exhibit A at 17) (1)

The waiver vote ballot prepared by Chicago Public Schools lawyers and given to principals at schools where the waiver is being pushed effectively gets teachers to surrender many of their contractual rights. Article 5 Sec. 5-8 sets the same hours for teachers in middle schools (Exhibit A at 22).

And, of course, the CBA clearly and unambiguously sets the compensation to be paid to teacher, as set forth in CBA Exhibit A, which sets the “salary schedules and other compensation” for all CTU-represented teachers. (Exhibit A at 121-97)

Appendix C of the CBA

Appendix C of the CBA creates procedures by which an individual school can conduct an election among Union members assigned to that school to propose a change to a provision of the CBA. Appendix C was first placed in the collective bargaining agreement between the CTU and the CBE in the 1989-90 agreement, and some version of it has remained in each collective bargaining agreement since then. Appendix C’s purpose and consistent use over the 20+ years of its existence is to allow school staff in individual schools to address unique concerns within a school, but not to eliminate or remove employees' rights under the CBA, including hours of work and compensation. It allows a vote on a proposal that requires a waiver of CBA provisions to be implemented. Appendix C has never been used to effect a change on a district-, area- or city-wide basis, nor has it ever been used to alter the negotiated compensation paid to teachers. These latter matters have always be addressed solely between the CBE and the CTU.

Appendix C imposes very clear requirements for such waivers. These requirements include:

• A secret ballot vote must be conducted (¶ 2)

• The voting must be limited to Union members (¶ 2)

• The procedures for conducting the vote must be approved by both the principal and the CTU school delegate (¶ 3)

• A majority of Union members voting must approve the waiver (¶ 4)

(Exhibit A at 203)

CBE’s Request that the CTU reopen the agreement to extend length of school day

By email of August 24, 2011, James Franczek, counsel for the CBE formally proposed to CTU that the parties modify the CBA by extending the length of the school day at elementary schools and middle schools by 90 minutes, to establish a school year of 180 student attendance days (by eliminating holidays, teacher institute days and professional development days), and increasing teacher pay by 2 percent. (A copy of that email with attachment is attached hereto as Exhibit B.)

By letter of August 25, 2011, the CTU, through its counsel Robert E. Bloch, responded to say, among other things, that the CTU declined to consider any modifications to its current labor agreement. (A copy of that letter is attached hereto as Exhibit C.). (2)

CBE’s Direct Dealing with Teachers

Shortly after the CTU declined to reopen its labor contract, and without prior notice to, discussion with or the consent of the CTU, the CBE bypassed the CTU to deal directly with the teachers in order to impose a 90-minute extension to the school day and to pay the teachers a lump sum equal to 2% of the salary increase.

The CBE purported to impose these unilateral changes under cover of Appendix C waiver procedures, but its conduct so obviously violated the Appendix C procedures as to render them a sham. Further, the CBE refused to allow for a free exercise of union member voting rights. To date, the CTU has declared its intention to impose contractual rights, the CBE threatened and intimidated teachers in the voting process. To the CTU’s knowledge, the CBE has attempted this end-run at STEM Magnet Elementary (“STEM”), Genevieve Melody Elementary School (“Melody”), and OTHER SCHOOL. The CBE has admitted that it is attempting to get all elementary schools to institute a lengthened school day.

STEM Magnet Elementary

At STEM, the school day ran from 8:45 a.m. to 2:45 p.m. On August 24, 2011, prior to the start of the school year, STEM Principal Maria McManus told some of the faculty, including teacher Luke Albrecht, in informal conversation that she wanted to extend the school day by 90 minutes. Principal McManus said that the extra work time would be without pay, but promised to make sure every teacher got a new iPad and an extra compensatory day off with pay per quarter. Principal McManus said that the comp day would not show up on teachers’ paychecks, but would be “unofficial.” Principal McManus later clarified that the comp day would be paid by another staff member swiping the teacher as present on that day. Principal McManus also said that, if the Union members agreed to the 90 minutes, then she could hire extra personnel in the form of teacher aides.

Albrecht told Principal McManus that, since this was a contract issue, the school probably needed to follow a required processes that involved the CTU. Albrecht said that the parties needed to start by getting a school delegate and said he would contact the CTU and was willing to be delegate if so appointed.

Early in the morning on Friday, September 2, 2011, 17 teachers and a clerk met to discuss the Principal McManus’s proposal. Principal McManus told the faculty they would be voting that afternoon at 1:00 p.m. She said that the teachers would get iPads, one comp day per semester, and a 2% of each teacher’s salary as a one-time payout if the teachers voted yes. Albrecht stated in the meeting that the school did not yet have a delegate and that the election needed to wait until the school had a CTU delegate certified and sworn, and that the voting CTU members needed more time to discuss the issues.

Later that day, at approximately 11:30 a.m., in Principal McManus’ office, Albrecht and CTU Field Representative John Kugler met with Principal McManus. Kugler advised Principal McManus that the vote was improper.

As soon as Kugler left the school, Principal McManus gave Albrecht a copy of the ballot which teachers would use to vote. (A copy of that ballot is attached hereto as Exhibit E.) Principal McManus had earlier told Albrecht that “downtown” had prepared the ballot.

Around noon that day, Principal McManus asked Albrecht whether he had been talking to the CTU about what was going on at STEM. Albrecht felt intimidated by the interrogation, but said that he had been. He also said that he believed that it was improper to offer teachers comp days if they voted yes to the proposal.

At 1:00 p.m., the 17 staff members assembled to vote, including 10 teachers who had signed union cards but had not yet been admitted to membership in the CTU. Further, there was as yet no appointed CTU delegate at the school. Right before the voting CTU members cast their ballots, Principal McManus told the voting CTU members all that if they voted yes, they would be “the Mayor’s pet school.” The faculty did not discuss the actual proposal outside of Principal McManus’ presence, and it was not presented until after Kugler left the school.

As Albrecht was leaving the school, the Principal McManus told him to speak with someone later identified as "John Mellios" from the CBE's main office. “Mellios” told Albrecht to sign the ballot form and certify the results. Albrecht told Mellios that he could not do so, because he was not formally the delegate. Mellios said it did not matter and said that Albrecht needed to certify that vote passed and that the results were accurate. Albrecht did as Mellios asked.

On September 3, 2011, at 11:47 p.m., Albrect received an email the principal sent the faculty, entitled “You Guys Are Awesome.” (A copy of that email, with individual teacher contact information redacted, is attached hereto as Exhibit F.) That email advised teachers, “If you should receive harassing telephone calls from the CTU, do not feel obliged to listen to or respond to their accusations. If they leave messages on your voicemail, save all messages.”

On September 6, 2011, Principal McManus called a meeting with the staff after school. She said in that meeting that if the CTU is “harassing” teachers, teachers did not have to talk to the CTU, and that if the CTU leaves voice mails, teachers should keep copies “because downtown wants them.” On that same day, Albrecht asked McManus for a copy of the vote tally to send to the CTU. Principal McManus said that she did not want Albrecht to give the vote tally to the CTU, and that she would send the vote tally downtown. The proposal passed by a vote of 13 - 4. (A true and correct copy of the vote tally is attached hereto as Exhibit G.) Thus, inclusion of the 10 non-members in the voting could have affected the results of the vote.

Genevieve Melody Elementary School

The CBE also orchestrated an election at Genevieve Melody Elementruy School ("Melody"). On September 2, 201 1, Principal Nancy Hanks called a meeting of teachers to vote on whether to lengthen the school day. She said that the school would be facing a longer school in any case. She said that, if teachers approved the longer school day, the school would get $15,000.00 more per month, which Principal Hanks said would be used to hire another teacher,and each teacher would get $800.00 as a lump sum payment. Principal Hanks also suggested that the CBE, when deciding what schools to close, might not close Melody if the teachers voted for a longer school day.Principal Hanks handed out ballots and left the room. There are 22 teachers at Melody. 16 voted for the longer school day and 4 voted against it.

Skinner North Classical School

The CBE also orchestrated an election at Skinner. On the morning of September 2, 201 1, Principal Ethan James Netterstrom placed ballots in teachers' mailboxes. At 10:00 a.m., Principal Netterstrom asked teachers to come to the library for a meeting. In that meeting, Principal Netterstrom said that he wanted teachers to vote to extend the school day. Principal Netterstrom promised that Skinner would get $150,000.00 to "buy whatever we wanted for the school" and a 2 percent raise. Principal Netterstrom gave the teachers an hour to vote on the matter and left the library.

Three teachers declined to vote, since they were not CTU members. The remaining teachers voted — the vote was a six-to-six tie. When Principal Netterstrom learned of those results, he directed the three non-member teachers to vote and obtained a nine-to-six majority supporting the longer school day. This nullified any secrecy to the vote, since it was clear who cast the deciding votes. Principal Netterstrom then instructed the office staff to turn away any union representatives that wish to talk to teachers unless the union representatives give 24 hours notice and get his permission to come.

Laura Ward Elementary School

At around 730 a.m. September 7, 2011, Laura Ward Elementary School ("Ward") Principal Hobbs called teachers in for an emergency meeting. Principal Hobbs said that she received instruction that the school needed to hold a vote on a longer school day. Principal Hobbs passed around a school schedule showing the longer day. Principal Hobbs said that, if teachers agree to the longer day, the school would get $150,000.00 (which Principal Hobbs said she would use for a new computer lab) and teachers would get 2% of their annual salary, paid out in a lump sum. Principal Hobbs said that if teachers do not agree to the longer day, then the school might have to cut positions, starring with teachers with the lowest seniority. Principal Hobbs said that teachers should mark on the schedules if they approve the change and return the schedules, so teachers returned the schedules.

Admission of City-Wide Effort

In a press release on September 6, 2011 (a copy of which is attached hereto as Exhibit H), the CBE admits that it is seeking that “all elementary schools [will] jump on board the longer-school-day train.” Further, the Sun-Times has reported that the CBE has requested that principals respond to an emailed questionnaire about whether the teachers at their schools would agree to a longer school day. (A true and correct copy of that article is attached hereto as Exhibit I, see page 2.) While Appendix C's function is to allow for individual schools to tailor the CBA to unique circumstances, the CBE is now using elections-styled as Appendix C elections but without any of the procedural protections — to obtain a city-wide change.

Further, while the individual schedules and effective dates on the ballots vary, it is clear from the face of the ballots at STEM, Skinner and Melody that they were prepared centrally, given their identical format and similar substance. (A true and correct copy of the STEM ballet is attached hereto as Exhibit E; true and correct copies of the Skinner and Melody ballots are attached hereto as Exhibit J.)

CTU's Information Requests

The CTU has made two information requests in connection with the CBE's efforts to obtain a longer school day by dealing directly with teachers.

Robert Bloch’s Email

On September 2, 2011, the CTU’s counsel Robert E. Bloch sent an email to the CBE’s counsel, James Franczek, requesting: (1) identification of all schools where votes about the lengthened school day have been taken or will be taken in the future; (2) the precise proposition voted on in each school; (3) information about the voting arrangements allegedly agreed upon by the school delegate; and (4) information about any inducements offered to teachers to support the lengthened school day. (A copy of that email is attached hereto as Exhibit K.)

On September 6, 2011, Franczek responded by letter. (A copy of that letter is attached hereto as Exhibit L.) The letter identified Melody, STEM and Skinner North as schools where elections had taken place, but did not provide any of the other information requested.

Karen Lewis’s Letter

On September 6, 2011, CTU President Karen Lewis sent a letter to CBE Chief Executive Officer Jean-Claude Brizard requesting the name of every school where the CBE has conducted or attempted to conduct a waiver vote for a longer school day, every school where it intends to conduct a vote, the terms of the proposed waivers, all compensation and inducements offered to teachers to approve the waiver (including indirect inducements such as additional money for the entire school), the voting arrangements agreed by a certified CTU delegate, and the waiver vote totals. Lewis’s letter also requested copies of all letters, memoranda and emails sent to every teacher from Chicago Public Schools, Chicago Public Schools administrators, the CBE, or Chicago Public Schools principals that relate to the waiver votes. (A copy of that letter is attached hereto as Exhibit M.)

Lewis’s letter requested a response no later than noon on September 7, 2011, but, as of the filing of this charge, the CBE has not responded to this information request.

President Lewis also requested that the CBE not implement the longer school day, which request was apparently ignored.

ARGUMENT

In attempting this end-run around the CTU, the CBE has violated the IELRA in the following ways:

1. The CBE has violated Sections 14(a)(1) and (3) by intimidating teachers in order to secure their votes for a longer school day and in response to teachers’ assertion of contractual rights.

2. The CBE has violated Section 14(a)(1) and (5) by dealing directly with teachers about their wages and hours of employment, in a manner plainly falling outside the scope of Appendix C, to effect a city-wide change to the CBA’s terms.

3. The CBE has violated Section 14(a)(1) and (5) by partially repudiating the parties’ labor contract

4. The CBE has violated Section 14(a)(1) and (5) by refusing to respond to information requests from the CTU.

While unfair labor practice charges that allege a violation of a collective bargaining agreement are sometimes referred to the parties' contractual arbitration process, referral is not appropriate here because since: (1) the charge includes intertwined allegations of intimidation; (2) the clear language of Appendix C does not require an arbitrator's interpretation; (3) the CBE's attempt to effect a city-wide change to the CBA's terms by using a distorted version of Appendix C evinces the CBE's enmity toward its collective bargaining obligations; and (4) the CBE cannot undermine the CBA through sham Appendix C votes and at the same time avail itself of the CBA's arbitration provisions. Unless these violations are halted immediately, there will be no effective remedy, since the school year is beginning with the illegally- lengthened school day. Further, the CBE's conduct constitutes a serious flouting of the IELRA. Accordingly, the CTU requests that the IELRB seek a preliminary injunction under Section 16(d) of the IELRA.

I. The CBE Has Violated Section 14(a)(1) and (3) of the Act by

Coercing Employees to Vote for the Longer School Day.

A. The CBE Has Interrogated Teachers.

Around noon on September 2, 2011, Principal McManus asked employee Albrecht whether he had been communicating with the CTU about the possible extended school day at STEM. But an employer unlawfully intimidates an employee by asking about whether there is ongoing union activity. Boulder City Hospital, 355 NLRB No. 203 at 9 (2010). Accordingly, Principal McManus's interrogation of Albrecht violated Section 14(a)(l).

B. The CBE Has Instructed Teachers to Report Private Communications with the CTU.

In Principal McManus's email of September 5, 2011 to teachers about the 90-minute extension of the school day, she wrote: "If you should receive harassing telephone calls from the CUT, do not feel obliged to listen to or respond to their accusations. If they leave messages on your voicemail, save all messages"(Exhibit Ff. Principz! Mchhmus reiterated this inswrlciion on September 6, 2011, instructing teachers that "downtown" wanted copies of CTU communications with teachers.

It is clearly established that instructing employees to report on their contacts with a union is unlawful intimidation. Smith & Johnson Constr. Co., 324 NLRB 970, 983 (1997) (requiring employees to report contacts with union unlawful); Brunswick Electric Membership Corn., 308 NLRB 361, 372 (1992), enf d, 991 F.2d 790 (4th Cir. 1993); Meisner Electric, inc., 316 NLFS3 597, 607 (1995), enf'd, 83 F.3d 436 (1 lth Cir. 1996); Arcata Grauhics/Fairfield, Inc., 304 N.L.R.B. 541 (1991). Accordingly, the CBE has violated Section 14(a)(l) of the IELRA. C. The CBE Has Threatened to Close Melody School If Its Teachers Reiected a Longer School Day

At Melody school, Principal Hanks also suggested that the CBE, when deciding what schools to close, might not close Melody if the teachers voted for a longer school day. An employer's comments that connected employee exercise of protected rights with closure of the employer's facilities constitute unlawful intimidation. Homer D. Bronson Co., 349 NLRB 512, 513 (2007), enfd, 273 Fed. Appx. 32 (2d Cir. 2008). Accordingly, the CBE has violated Section 14(a)(l) by threatening that it might close Melody school unless the CTU members vote to increase the school day.

D. The CBE Has Banned Union Representatives.

The CBE has further intimidated employees' protected rights by barring CTU representatives from Skinner school. Principal Netterstrom has instructed Skinner staff to turn away any union representatives that wish to talk to teachers unless the union representatives give 24 hours notice and get his permission to come. Discriminatonly banning union representatives unlawfully coerces employees. Downtown Hartford YMCA, 349 NLRB 960 (2007). Accordingly, the CBE has violated Section 14(a)(l) by banning the CTU from its Skinner.

E. The CBE Has Offered Inducements to Teachers.

The CBE has offered inducements to teachers to get them to sign on to the CBE's extended school day. Teachers at STEM were offered iPads, one comp day per semester, and a 2% of each teacher's salary as a one-time payout. STEM Principal McManus also promised that, if the voting CTU members approved the longer school day, they would be "the Mayor's pet school." Teachers at Skinner were told that, if they approved the longer school day, the school would get $150,000.00 to "buy whatever we wanted for the school" and the teachers would get a 2 percent raise.

An employer's offer of benefits in exchange for employees' not exercising their protected rights constitutes a violation of Section 14(a)(l). Saiaon Gourmet Restaurant. Inc., 353 NLRB No. 110 at 2 (2009). Here, the CBE, at various schools, induced teachers to waive their rights to a school day of the length set forth in the CBA, and their rights under the CBA to an election in keeping with the procedures established by Appendix C, in exchange for increased pay and other benefits. This violates Section 14(a)(l). Id.

II. The CBE Has Violated Section 14(a)(5) of the IELRA by Dealing Directly with Teachers and Partially Repudiating the CBA.

A. The CBE is Engaging In Direct Dealing with Employees.

Employers must negotiate terms and conditions of employment with their employees’ designated collective bargaining representatives. As the court stated in Board of Educ. v. IELRB, 250 Ill. App. 3d 878, 883 (4th Dist. 1993):

To permit the employer to go behind the chosen bargaining agent and negotiate with the employees individually, or with their committees, in spite of the fact that they had not revoked the agent's authority, would result in nothing but disarrangement of the mechanism for negotiation created by the Act, disparagement of the services of the union, whether good or bad, and acute, if not endless, friction, which it is the avowed purpose of the Act to avoid—or mitigate. In these circumstances, for the respondent to deal directly with its employees was to deny to the Union its statutory status and was, therefore, a refusal to bargain collectively.

Id., citing, In re Medo Photo Supply Corp., 43 NLRB 989, 997-98 (1942).

Having failed to obtain agreement from the CTU, the CBE decided that it would simply bypass the CTU and attempt to obtain agreement directly from teachers. While the CBE has styled its direct dealing campaign as Appendix C elections, in fact it is no such thing, principally since Appendix C elections cannot be used to alter the wage terms of the CBA. But further, the following aspects of a procedurally-proper Appendix C election are not met:

1 There was no agreement on election procedures between the principal and the CTU delegate; indeed, there was no CTU delegate at STEM.

2 At Skinner school, the CBE not only allowed ineligible teachers who were not CTU members to vote, but in fact ordered them to vote over their objections. 3 There was no secret ballot at Skinner school. 4 The CBE is attempting to implement a change to employee compensation and a city-wide change on a school-by-school basis, which is not the purpose of Appendix C elections. 5 Appendix C votes are being used to change compensation terms.

Since the CBE is using sham elections to change wages and has disregarded the procedures applicable to Appendix C elections, it cannot justify its direct dealing as somehow permitted by Appendix C. Rather, the this is nothing more than an attempt to bypass the CTU and obtain by supposed agreement of employees the changes to hours of work that the CBE desires. The form of direct dealing is not determinative—“the violation lies in bypassing the exclusive representative[.]” Id. at 884 (emphasis in original).

B. Partial Repudiation of an Agreement Violates the Dutv to Bargain.

Since the CBE was unable to get the Union to agree to reopen the CBA, it unlawfully induced teachers to vote to waive contract terms, the implementation of which is an unlawful repudiation of the agreement. While minor violations of a union contract might merely be subject to the grievance and arbitration process, "a party to an agreement violates its statutory duty to bargain collectively by modifying the terms of such a contract, where those terms are of such importance to the agreement that their unilateral modification would negate the very statutory duty to bargain collectively." Chicago Board of Education, 7 PERI 1114 (IELRB 1991). Thus, a contractual violation constitutes an unfair labor practice where is "in reality a basic repudiation of the bargaining relationship." Id.,citing, Oak Cliff-Golman Baking Company, 207 NLRB 1063, 1064 (1973), enfd 505 F.2d 1302 (5th Cir. 1974), cert. denied, 423 U.S.826 (1975).

Here, the CBE is repudiating the most basic terms of a collective bargaining agreement: hours and pay. Further, by the CBE's direct dealing through phony Appendix C votes repudiates the very concept of collective bargaining. Accordingly, the CBE's conduct goes beyond a simple dispute over contractual terms and amounts to a complete repudiation of the CBA, an unfair labor practice, which the IELRB must adjudicate.3

C. Referral of the Direct Dealing Charge is Not Appropriate.

The CBE may argue that the question of whether the elections were proper under Appendix C is a subject for an arbitrator to decide under the CBA's grievance and arbitration provisions, and that this charge should be referred to arbitration. But referral is not appropriate:

(1) there are intertwined independent Section 14(a)(l) violations; (2) the CBE has effectively repudiated the CBA's terms such that reliance on the CBA's arbitration provisions would be inconsistent; (3) there is no need for an arbitrator to consider the violation, since Appendix C is clear on its face; and (4) the CBE's course of conduct evinces enmity towards protected rights.

1. The IELRB Does Not Refer Cases That Include Allegations of Independent Section 14(a)(1) Allegations.

As noted above, this case involves related allegations of independent violations of Section 14(a)(l), specifically: (1) inducing teachers to vote for a longer school day by offering benefits; (2) interrogating teachers about their contacts with the CTU; (3) directing teachers to report to the CBE their contacts with the CTU about the vote for a longer school day; and (4) banning the CTU from Skinner. In University of Illinois, 15 PERI 1053 (IELRB 1998), the charge alleged that the employer unlawfully prohibited employees from wearing union insignia. The employer asked that the charge be referred to arbitration, but the IELRB refused to refer the charge, since it involved an alleged violation of Section 14(a)(l). Similarly, in Bloom Township High School District No. 206, 20 PERI 35 (IELRB ALJ 2004), the charge alleged an unlawful installation of surveillance cameras. The employer argued that the matter should be referred to arbitration in light of a supposed contractual right to install these cameras, but the IELRB ALJ

rejected that argument, since "[tlhe determinative issue here is not whether the employer's conduct was permitted by the contract, but whether the conduct was unlawfully motivated or whether it otherwise interfered with, restrained, or coerced employees in the exercise of the rights guaranteed them by Section 3 of the Act." Id.,citing University of Illinois, 15 PERI 1053 at IX-214.

Likewise, this case involves not simply the terms of Appendix C, but also involves employees’ rights to be free of coercion and restraint. Specifically, the charge alleges that the CBE coerced employees into voting for an extended school day. Since the charge is not limited to a contractual interpretation question, referral is simply not appropriate. University of Illinois, 15 PERI 1053; Bloom Township, 20 PERI 35.

2. Where a Contract Violation Is Clear on the Face of the Contract, an Arbitrator's View Is Not Required.

"Deferral to arbitration is not appropriate when, although contract provisions are involved in a dispute, those provisions are clear and unambiguous and do not present problems that require the special competence of an arbitrator." University Moving & Storage Co., 350 NLRB 6, 20 (2007). See also, New Mexico Symphony Orchestra, 335 NLRB 896 (2001) ("In the instant case, the admitted breach of the contract does not involve a question of contract interpretation or require the special competence of an arbitrator."). Thus, there is no need to for an arbitrator to consider the question of whether the CBE complied with Appendix C, since there can be no question that the CBE did not comply in at least some respects. There can be no dispute that the CBE has failed to comply with Appendix C, in that it has conducted votes without agreement on procedures with the CTU delegate, votes that without a secret ballot, and votes that included non-members. There is no need for an arbitrator to consider the CBE's possible contract defense, since Appendix C's language is clear, and just as clearly the CBE did not comply with those terms.

3. Referral Is Not Appropriate Because of the CBE's Evident Enmity Toward Employee Rights.

Further, even aside from the impossibility of referring the allegations because of the independent Section 14(a)(l) violation, referral is inappropriate where, as here, the employer's conduct involves aggravated circumstances and an enmity for protected rights. In Bloom Township High School District No. 206, 20 PER1 35 (IELRB ALJ 2004), the IELRB ALJ refused to refer the charge since the employer's conduct was more than merely a dispute over the meaning of the parties' collective bargaining agreement, but rather came out of animus toward protected rights.

Here, the CTU has provided extensive evidence that the CBE is acting out of disregard for the CBA. The CBE asked the CTU to reopen the CBA's provisions on the length of the school day, but the CTU declined. The CBE was not satisfied with the CTU's exercise of its contractual rights, however, and instead launched into a campaign to obtain its desired longer school day on a school-by-school basis, under the fig leaf of a sham Appendix C vote.

Specifically, the CTU has alleged that the CBE took the following steps:

1 Ignoring Appendix C's requirement of an agreement on election procedures between the principal and the CTU delegate. 2 Ignoring Appendix C's requirement that only CTU members can vote, 3 Deliberately stacking the vote with ineligible non-members in order to override the will of the Union members who are solely authorized to vote on the waiver 4 Ignoring Appendix C's requirement of a secret ballot at Skinner. 5 Attempting to implement a city-wide change on a school-by-school basis, which is not the purpose of Appendix C elections. 6 Attempting to alter the compensation paid to teachers established under Appendix A to the CBA Not only are the votes clearly a sham, but the CBE's related conduct indicates that it knows it. The CBE is asking teachers to report communications kom the CTU-Principal McManus said that this order comes from "downtown," i.e., the main office of the CBE. Principal McManus also admitted that she did not want the vote tally to go to the CTU. Going

even further, Principal Netterstrom instructed Skinner school staff to turn away any union representatives that wish to talk to teachers unless the union representatives give 24 hours notice

and get his permission to come. The CBE does not merely have an honest disagreement with the CTU about what an Appendix C election involves. Rather, the CBE is doing whatever it can to get a longer school day and is actively thwarting the CTU’s efforts to investigate.

In short, it is clear that the CBE is pursuing its longer school day at any cost, styling its efforts as Appendix C elections, but ignoring Appendix C’s requirements. The CBE’s patent enmity toward the collective bargaining process and its obligations under parties’ CBA makes referral inappropriate. Bloom Township, 20 PERI 35.

4. Repudiation of the CBA Prevents Referral.

Where the employer's conduct amounts to a repudiation of the principles of collective bargaining, referral is inappropriate, such as when an employer refuses to deal with its employees' chosen representative. Kenosha Auto Transuort Corn., 302 NLRB 888 n.2 (1991). Here, exactly that is happening: the CBE is refusing to deal with the CTU, but rather is going mund the CTU and dealing with e~ployees directly. Since the CBE has itself disavowed the CBA's terms on hours and wages, it cannot take the inconsistent position of availing itself of the CBA's terms on arbitration. See Capitol Roof & Supply Co., Inc., 217 NLRB 1004 (1975) ("Respondent is taking ambivalent, if not inconsistent positions, by attempting to repudiate the collective-bargaining agreement while seeking to resort to the grievance and arbitration machinery").

IV. The CBE Has Ignored the CTU’s Information Requests.

On September 2 and 6, 2011, the CTU requested that the CBE provide information about the schools in which the CBE is pushing elections for an extended school day. “Information concerning terms and conditions of employment is presumptively relevant,” Oak Lawn Community High School Dist. 229, 23 PERI 167 (IELRB 2007), and the CTU’s requests are directly targeted to wages and hours, but the CBE has not responded (except simply to identify STEM, Melody, and Skinner North as schools where vote have taken place). Accordingly, the CBE is violation of its obligation under Section 14(a)(5) to provide relevant information to the CTU.

V. Request for Injunctive Relief.

The CTU requests that the IELRB seek injunction relief under Section 16(d) of the IELRA because ordinary IELRB remedies will not be sufficient unless the CBE's unlawful cnnc!~ct is immedia?e!y blocked. For the reasoxs stated above, the CTU has already demonstrated a strong likelihood of success on the merits, so the only question is whether preliminary injunctive relief is just and proper. In determining whether preliminary injunctive relief is just and proper, the Board considers whether "(11 an injunction is necessary to prevent frustration of the basic remedial purposes of the Act; [2] the degree, if any, to which the public interest is affected by a continuing violation; [3] the need to immediately restore the status quo ante; [4] whether ordinary IELRB remedies are inadequate; and i5j whether irreparable harm will result without preliminary injunctive relief." University of Illinois, 23 PERI ¶86 (IELRB 2007). A. Injunction is Necessary to Prevent Frustration of the Basic Remedial Purposes of the IELRA.

The CBE’s actions here strike directly at the heart of collective bargaining relations established and guaranteed under the Act. The CBE is using the fig leaf of sham Appendix C elections to circumvent its contractual obligations—principals’ efforts to conceal the election process and vote tallies from the CTU admit as much. If the CBE is permitted to abuse Appendix C in this way, the parties’ entire CBA will become undone, since the CBE can simply push through fraudulent elections any time it wants to avoid a CBA provision. And the IELRB’s remedies are not sufficient to deal with this, since there is no effective way to go back and undo the additional time that teachers will have been compelled to work. As the Board ruled in East St. Louis School District, 5 PERI ¶1051 (IELRB 1989), “the failure to seek injunctive relief would risk a serious flouting of the Act to continue until the Board resolves the charge before it.”

B. The Public Interest is Affected by a Continuing Violation.

The CBE’s conduct is a continuing violation for two reasons. First, the CBE’s unlawfully extended school day will, absent injunction, persist during the pendency of the case at the schools where the CBE has conducted bogus Appendix C elections. Second, the CBE has admitted that it is engaged in a campaign to get a longer school day at all elementary schools. The IELRB has ruled that “the public interest would be adversely affected by allowing [an employer] to allegedly continue to violate its statutory duty to bargain.” University of Illinois, 23 PERI ¶86 (IELRB 2007).

C. The Need to Immediately Restore the Status Quo Ante.

If the CBE is permitted to continue with its bogus Appendix C elections, the entire CBA is in jeopardy, since the CTU will be left helpless against any sham election the CBE seeks to conduct. Appendix C is carefully crafted to balance flexibility for individual schools against the CTU’s right to the benefit of the bargain its struck in the CBA. But the CBE is ignoring the proper procedures in order to effect direct dealing with teachers under the fig leaf of supposed Appendix C elections. Injunctive relief is necessary to protect the CTU’s right to the benefit of its bargain–otherwise, the entire CBA is up for grabs.

D. Ordinary IELRB Remedies are Inadequate

Immediate injunctive relief is necessary where an employer’s conduct “ is undermining the parties’ bargaining relationship in a manner that cannot be undone later.” University of Illinois, 23 PERI ¶86 (IELRB 2007). Here, the CBE’s decision to get what it wants through sham Appendix C elections is a blatant attempt to avoid its bargaining relationship with the CTU. (Again, the CBE has admitted this by its principals’ efforts to hide the matter from the CTU.) “[T]he IELRB’s remedies are not designed to correct the unquantifiable harm to the parties’ bargaining relationship that is being caused by [the employer’s] alleged unilateral actions.” Id. This is not a case of a simple dispute over the meaning of a contract term, but rather this is an attempt to undermine the entire bargaining relationship. Immediate injunctive relief is necessary to avoid that harm.

E. Irreparable Harm Will Result Without Preliminary Injunctive Relief.

The Board has recognized that, in the context of injunctive relief, “‘irreparable harm’ does not mean injury that is beyond repair or compensation in damages, but rather, means injury of a continuing nature.” University of Illinois, 23 PERI 86 (IELRB 2007). See also, AFSCME v. Holsapple, 6 PERI ¶4026, 201 Ill. App.3d 1040, 559 N.E.2d 577 (4th Dist. 1990). Here, the injury is continuing, both in the continuing effect of the longer day at the schools where the CBE has pushed through sham elections, and in the CBE’s admitted efforts to effect a longer school day at all elementary schools.

Conclusion

In determining whether to issue a complaint, the Executive Director must “decide whether its investigation of the charge establishes a prima facie issue of law or fact sufficient to warrant a hearing of the charge.” Lake Zurich School District No. 95, 1 PERI 1031 (IELRB 1984). As described above, the CBE: (1) is engaged in unlawful direct dealing with employees through sham Appendix C elections, in violation of Section 14(a)(5); (2) is intimidating and coercing employees to vote for a longer school day, including by shutting out the CTU, in violation of Section 14(a)(1); and (3) has refused to respond to the CTU’s requests for relevant information, in violation of Section 14(a)(5). For the reasons stated above, not only has the CTU met the standard for issuance of a complaint—the CTU has established a substantial likelihood of prevailing on the merits.

Further, immediate injunctive relief is necessary to bar future sham elections and to promptly revert the work day back to its prior length at schools where sham elections have already taken place. The CBE’s conducting sham Appendix C elections in an attempt to implement a city-wide change through coercive and unlawful school-by-school votes poses a threat to the entire collective bargaining relationship between the parties, since it opens the door to abrogation of any CBA provision that the CBE wants to avoid. This damage cannot be repaired through ordinary remedies, but must be prevented through an immediate injunction.

For the foregoing reasons, the Union requests that the CBE be ordered, including by injunction, to:

1. Cease and desist from dealing directly with employees about the length of the school day.

2. Cease and desist from dealing directly with employees about compensation for working a longer school day.

3. Cease and desist from conducting Appendix C elections about the length of the school day.

4. Cease and desist from implementing any longer school day based on an Appendix C election, and make whole any teachers who were required to work additional hours as a result of an Appendix C election.

5. Cease and desist from conducting Appendix C elections to attempt to implement a city-wide change.

6. Cease and desist from conducting Appendix C elections without adhering to the procedural requirements of Appendix C.

7. Cease and desist from offering inducements to employees to vote in favor of lengthening the school day.

8. Cease and desist from interrogating employees about contacts with the CTU about Appendix C elections.

9. Cease and desist from directing employees to report contacts with the CTU about Appendix C elections.

10. Cease and desist from directing employees not to communicate with the CTU about Appendix C elections.

11. Cease and desist from barring CTU representatives from school premises.

12. Provide the information requested by Robert E. Bloch’s email of September 2, 2011.

13. Provide the information requested by Karen Lewis’s letter of September 6, 2011.

14. Post appropriate notices.

15. Provide any other relief deemed necessary.

Respectfully submitted,

________________________

Josiah A. Groff

Counsel for Complainant

Chicago Teachers Union

Robert E. Bloch

Josiah A. Groff

Dowd, Bloch & Bennett

8 S. Michigan Avenue--19th Floor

Chicago, IL 60603 (312) 372-1361

September 8, 2011

CERTIFICATE OF SERVICE

The undersigned, an attorney, hereby certifies that he caused a copy of the foregoing Charging Party’s Position Statement and Request for Injunctive Relief to be served on the individuals listed below by messenger on August 29, 2011:

Chicago Public Schools

Superintendent Jean-Claude Brizard

125 South Clark Street

5th Floor

Chicago, Illinois 60603 James C. Franczek Stephanie B. Donovan

Jennifer A. Dunn Franczek Radelet, P.C.

300 S. Wacker Drive, Suite 3400

Chicago, Illinois 60606

_______________________________

Josiah A. Groff

1 Sec. 4-6 allows the parties to “change the beginning and ending times” of the school day provided a majority of classroom teachers vote to approve the change. This provision allows for changes in the start time of each school day (and a corresponding change in the end time), but does not allow any change in the length of the school day, which is unambiguously capped at 7 hours. Affidavit?

2 Previously, the CBE on June 15, 2011, purported to exercise its right under Article 47 Sec. 47- 2.2 (Exhibit A) to deny teachers their negotiated 4% annual wage increase by declining to adopt a resolution finding that there was a reasonable expectation that the CBE would be able to afford the increase. (A true and correct copy of the resolution and the agenda showing that it was not adopted are attached as Exhibit D.) Thus, the effect of the CBE's proposal was to give back to the teachers one-half of their negotiated wage increase in exchange for a 90-minute extension of the school day. 3 It does not matter whether or not the contractual provision that the employer repudiates is a mandatory subject of bargaining, since the violation turns on the "repudiation of that contractual agreement-not whether the underlying benefits are mandatory." Chicago Board of Education, 7 PERI 11 14, n.5 (IELRB 1991).



Comments:

September 10, 2011 at 8:54 AM

By: Rod Estvan

CTU complaint

Thanks to Substance for posting the full complaint.

Rod Estvan

September 10, 2011 at 9:14 AM

By: Thank you

Go, Karen, Go!

This is a most refreshing post and the teachers of Chicago CPS need to read this complaint. Go Karen Go!

September 10, 2011 at 1:31 PM

By: Bob Busch

Waiver dupes still our brothers and sisters...

Poor Fools...

Remember, the teachers who voted for this are still our brothers and sisters. I got a e-mail this morning from a teacher who went through the ballot, and there is a whole lot more to this than just a longer day. If you go over the provisions they waved, it amounts to the loss of many rights — for example bye bye librarian preps. What were they thinking?

On a different note bug-eyed, nine digit twinkle towed malignant dwarfs should really show some respect to Ms.Lewis. She earned it.

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