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Chicago Teachers Union IELRB Victory... The complete text of the decision... Brizard claims 'business as usual' for illegal campaign

The complete text of the unanimous decision of the Illinois Education Labor Relations Board (IELRB) in favor of the Chicago Teachers Union and against the Chicago Public Schools on the question of the recent flap over the "Longer School Day" being pushed rabidly by Mayor Rahm Emanuel and his hand-picked schools Chief Exeuctive Officer, Jean-Claude Brizard, is reprinted here. The ten-page decision, as the reader can read, was unanimous, with all five members of the IELRB ruling that CPS had broken the law. It was issued on October 20, 2011.

Chicago Teachers Union President Karen Lewis talks to reporters following the unanimous decision by the IELRB that the Chicago Board of Education has been violating Illinois labor law in its push for waiver votes on the "Longer School Day." Substance photo by John Kugler.After the document below, Substance also provides our readers here with the comments by the CTU and a recent email from Jean-Claude Brizard in which he tells Chicago's teachers that he will continue to break the law.

TEXT OF THE IELRB DECISION OF OCTOBER 20, 2011

Case No. 2012-CA-0009-C

STATE OF ILLINOIS

EDUCATIONAL LABOR RELATIONS BOARD

In the Matter of:

Chicago Board of Education,

Respondent,

And

Chicago Teachers Union,

Complainant

Case No. 2012-CA-0009-C

OPINION AND ORDER On September 8, 2011, the Chicago Teachers Union (Union), filed an unfair labor practice charge with the Illinois Educational Labor Relations Board (IELRB or Board) against the Chicago Board of Education (Respondent or Employer) alleging that the Employer engaged in unfair labor practices within the meaning of Section 14 of the Illinois Educational Labor Relations Act, 115 ILCS 5/1 et seq. (Act or IELRA). The next day, the Union filed an amended charge. The Union requested preliminary injunctive relief pursuant to Section 16(d) of the Act.

On October 13, 2011, the Executive Director issued a Complaint and Notice of Hearing, in which he alleged that the District violated Sections 14(a)(1), 14(a)(3), and 14(a)(5) of the Act. On October 14, 2011, the Union filed a Motion to Amend the Complaint. On October 18, the Executive Director granted the Motion to Amend the Complaint. The parties have set forth their positions on the Union’s request for injunctive relief through written submissions and through oral argument held on October 20, 2011. We have carefully considered those positions. For the reasons set forth below, we grant the Union’s request that the Board seek preliminary injunctive relief pursuant to Section 16(d) of the Act.

CTU attorneys (left above) and CPS attorneys (right above) present their respective cases to the IELRB on October 20, 2011. Substance photo by John Kugler.I. Section 16(d) of the Act provides that, upon issuance of an unfair labor practice complaint, the IELRB may petition the circuit court for appropriate temporary relief or a restraining order. Because the Executive Director has issued a Complaint in this case, the statutory prerequisite has been satisfied.

In University of Illinois Hospital, 2 PERI 1138, Case Nos. 86-CA-0043-C, 86-CA-0044-C (IELRB Opinion and Order, October 21, 1986), we held that preliminary injunctive relief is appropriate where there is reasonable cause to believe that the Act may have been violated and where injunctive relief is just and proper. Thus, we examine this case to determine whether those prerequisites have been satisfied.

II.

A. Is there reasonable cause to believe that the Act may have been violated?

In order for there to be reasonable cause to believe that the Act may have been violated, there must be a significant likelihood of the Complainant prevailing on the merits. Cahokia Community Unit School District No. 187, 11 PERI 1059, Case No. 95-CA-0029-S (IELRB Opinion and Order, June 15, 1995). This first prong of the test for injunctive relief is not satisfied by the mere issuance of a Complaint. Under the Act, a Complaint is issued when questions of law or fact are presented. Although issuance of a Complaint is the statutory prerequisite for our consideration of a request for injunctive relief, something more is required to establish a significant likelihood of prevailing on the merits. Chicago Teachers Union Local No. 1, IFT/AFT, AFL-CIO, 3 PERI 1111, Case Nos. 88-CB-0003-C through 88-CB-0023-C (IELRB Opinion and Order, September 11, 1987); Zion-Benton Township High School District 126, 17 PERI 1015, Case No. 2001-CA-0031-C (IELRB Opinion and Order, March 6, 2001). In this case, we determine that there is a significant likelihood that the Union will prevail on the merits. Therefore, there is reasonable cause to believe that the Act may have been violated.

Section 14(a)(1) of the Act prohibits educational employers and their agents or representatives from “interfering, restraining, or coercing employees in the exercise of the rights guaranteed under this Act.” Section 14(a)(3) of the Act prohibits educational employers and their agents or representatives from “[d]iscriminating in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any employee organization.”

The Complaint, as amended, alleges that Employer violated Sections 14(a)(1) and 14(a)(3) of the Act by holding meetings on the longer school day that were not conducted in accordance with the parties’ collective bargaining agreement and/or past practice, offering promises or benefits to employees if they voted in favor of a longer school day, making threats of reprisal to employees if they voted against the longer school day, telling employees that they did not have to speak with representatives of the Union, insisting on being present while employees voted on the longer school day, directing employees to save messages from the Union, and ordering the Union’s representatives to leave the Respondent’s premises. The Complaint, as amended, alleges that all of this was done because the Respondent’s employees engaged in union activity. The Complaint, as amended, also alleges independent violations of Section 14(a)(1) of the Act. The Respondent disputes these allegations.

Where a violation of Section 14(a)(1) is alleged which does not consist of retaliation for non-union protected concerted activity, the test is whether the employer’s conduct may reasonably have the tendency to interfere with the free exercise of employees’ statutory rights. Hardin County Education Association v. IELRB, 174 Ill.App.3d 168, 528 N.E.2d 737 (4th Dist. 1988). Here, it is undisputed that the Employer determined that, if the employees voted in favor of the waiver sought by the Employer, they would receive a lump sum payment. This was an offer of a benefit which would reasonably have the tendency to interfere with the employees’ exercise of their collectively bargained right to vote on whether to waive the provisions of the collective bargaining agreement with respect to the length of the school day. Therefore, there is a significant likelihood that the Union will prevail on the merits of its claim that the Employer violated Section 14(a)(1) of the Act by offering benefits to employees if they voted in favor of a longer school day. The Complaint, as amended, also alleges that the Respondent violated Section 14(a)(5) of the Act by repudiation of the collective bargaining agreement, direct dealing, and refusing to provide information. The Complaint, as amended, alleges that the Employer engaged in repudiation and direct dealing by engaging in the same conduct that underlies the Section 14(a)(1) and 14(a)(3) allegations. The Complaint, as amended, alleges that the Employer refused to bargain in good faith by its failure and refusal to provide the Union the following information: a copy of the vote tally for the vote taken among bargaining unit members at the STEM Magnet School on the question of a longer school day, copies of the ballots cast by bargaining unit members at Aldridge Elementary School, and information concerning the precise propositions voted on and inducements offered to bargaining unit members. The Employer disputes these allegations and contends that it has provided the Union with the requested information.

The five members of the IELRB hearing the CTU case against CPS on the illegal waiver votes. Substance photo by John Kugler.Section 14(a)(5) of the Act prohibits educational employers from refusing to bargain collectively in good faith with an employee organization which is the exclusive representative of its employees. 115 ILCS 5/14(a)(5). An educational employer violates Section 14(a)(5), and derivatively, Section 14(a)(1) of the Act when it unilaterally modifies the terms of a collective bargaining agreement, 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, Case No. 92-CA-0026-C (IELRB Opinion and Order, October 25, 1991). It is not necessary that the terms of the agreement involved are mandatory subjects of bargaining; rather, it is necessary that they amount to a repudiation of the collective bargaining agreement. Id. In addition, an employer which bargains directly with its employees rather than dealing with their exclusive representative breaches its duty to bargain in good faith and violates Section 14(a)(5) of the Act. Board of Education of Sesser-Valier Community Unit School District No. 196 v. IELRB, 250 Ill. App. 3d 878, 620 N.E.2d 418 (4th Dist. 1993). The fundamental inquiry in direct dealing cases is whether the employer chose to deal with the union through the employees rather than with the employees through the union. Streator High School District No. 40, 14 PERI 1058, Case No. 97-CA-0049-S (IELRB Opinion and Order, April 9, 1998); Machinists District Lodge 190 v. NLRB, 827 F.2d 557 (9th Cir. 1987). An employer’s duty to bargain in good faith includes the duty to provide information requested by its employees’ exclusive representative which is directly relevant to the union’s function as the exclusive bargaining representative and appears reasonably necessary for the performance of this function. Chicago School Reform Board of Trustees v. IELRB, 315 Ill. App. 3d 522, 734 N.E.2d 69 (1st Dist. 2000); Alton Education Association, 21 PERI 79, Case No. 2002-CA-0051-S (IELRB Opinion and Order, March 23, 2005); Thornton Community College, 5 PERI 1003, Case No. 88-CA-0008-C (IELRB Opinion and Order, November 29, 1988).

Here, it is undisputed that the Employer dealt directly with the employees and that the subject matters of the direct dealing were the length of the school day, terms of the collective bargaining agreement which may well be of such importance to the agreement that their unilateral modification would negate the very statutory duty to bargain collectively. The Employer’s argument is, rather, that its conduct was authorized by Section 34-8.1a of the School Code, 105 ILCS 5/34-8.1a. However, nothing in Section 34-8.1a authorizes the Employer to deal directly with its employees in a manner which involves unlawful interference with the employees’ exercise of their statutory rights, which is what the Complaint alleges. In addition, it is clear that Employer has been attempting to unilaterally modify the language in the collective bargaining agreement concerning the length of the school day at all of its elementary schools without obtaining the agreement of the Union. Therefore, there is a significant likelihood that the Union will prevail on the merits of its claim that the Employer violated Section 14(a)(5) and, derivatively, Section 14(a)(1) of the Act by unilaterally modifying the collective bargaining agreement and by dealing directly with the Employer’s employees

Accordingly, there is reasonable cause to believe that the Act may have been violated.

B. Is preliminary relief “just and proper?”

In determining whether preliminary injunctive relief is just and proper, the IELRB considers whether an injunction is necessary to prevent frustration of the basic remedial purposes of the Act; the degree, if any, to which the public interest is affected by a continuing violation; the need to immediately restore the status quo ante; whether ordinary IELRB remedies are inadequate; and whether irreparable harm will result without preliminary injunctive relief. Johnston City Community Unit School District 1, 9 PERI 1048, Case No. 93-CA-0026-S (IELRB Opinion and Order, February 5, 1993). Preliminary injunctive relief should be limited to those cases in which the alleged violations are serious and extraordinary. Id.

There will be irreparable harm if preliminary injunctive relief is not ordered in this matter. As The Illinois Appellate Court has repeatedly held 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. E.g., Hadley v. Department of Corrections, 362 Ill.App.3d 680, 840 N.E.2d 748 (4th Dist. 2005), aff’d on other grounds, 224 Ill.2d 365, 864 N.E.2d 162 (2007); Lucas v. Peters, 318 Ill.App.3d 1, 741 N.E.2d 313 (1st Dist. 2000); Local 1894, AFSCME v. Holsapple, 201 Ill.App.3d 1040, 559 N.E.2d 577 (4th Dist. 1990); Wilson v. Benedictine College, 112 Ill.App.3d 932, 445 N.E.2d 901 (2nd Dist. 1983). Here, the injury is of a continuing nature in that the Respondent has admitted that it is engaged in an ongoing effort to secure a longer school day at every elementary school.

The Respondent’s unlawful conduct is also depriving employees of time which cannot be returned to them later, which they could otherwise have used for other purposes. Cairo Unit School District 1, 23 PERI 136, Case No. 2007-CA-0020-S (IELRB Opinion and Order, March 13. 2007). The IELRB has previously ruled that a requirement to perform duties which an employee does not wish to perform is not a financial effect, which can be compensated for later, and that the IELRB’s make whole remedies do not encompass compensation for this type of harm. Cairo; Crete-Monee School District 201-U, 9 PERI 145, Case No. 2004-CA-0009-C (IELRB Opinion and Order, August 20, 2003). The same principle applies in this case.

In addition, the Respondent’s alleged unilateral modification of the collective bargaining agreement and direct dealing are undermining the parties’ bargaining relationship in a manner that cannot be undone later. The IELRB’s remedies are not designed to correct the unquantifiable harm to the parties’ bargaining relationship that is being caused by the Respondent’s alleged unlawful actions. See Board of Trustees/University of Illinois at Urbana-Champaign, 23 PERI 86, Case Nos. 2007-CA-0015-S et al. (IELRB Opinion and Order, June 12, 2007). The Respondent argues that this case does not involve a nascent collective bargaining relationship. However, there is no indication that this was the case in University of Illinois.

Because of this irreparable harm, it is necessary to immediately restore the status quo ante. In addition, the existing collective bargaining agreement will expire on June 30, 2012. After that date, the Respondent will be free to adopt a longer school day without obtaining the consent of the Union, and has already announced its intention to do so. The hearing and appeal process in this case could well last beyond the expiration date of the current collective bargaining agreement. Thus, the remedies that the IELRB could award would come too late to effectively remedy the Respondent’s alleged misconduct. Therefore, ordinary IELRB remedies would be inadequate, and preliminary injunctive relief is necessary to avoid frustration of the basic remedial purposes of the Act.

In addition, the public interest would be adversely affected by allowing the Respondent to continue to engage in its allegedly unlawful conduct. This is not a case of a few incidents, but potentially affects all of Respondent’s elementary schools. To allow the Respondent’s allegedly unlawful conduct to continue would be contrary to the public policy set forth in Section 1 of the Act of promoting orderly and constructive relationships between educational employees and their employers. The Appellate Court stated in Holsapple that injunctive relief will be granted against public officials with respect to their official acts if those are unlawful.

The hallmark of American law is the contract. It is the basis of the American rule of law and freedom. In America, the parties freely choose to enter into an agreement and to be bound by the four corners of the agreement for the agreed-upon term. Here, the contract at issue is a collective bargaining agreement between the Union and the Employer. There is no allegation that there was any “bad faith” or “misrepresentations” when the parties negotiated the agreement in 2007. The parties’ agreement is in effect, by their own design, until 2012.

The Union and the Employer who agreed to the terms of the agreement are the same. The only changes have been exterior to the contract. There is a newly elected administration that seeks to restructure the Chicago Public Schools. This is a valid goal in a free society, but it is not unfettered. It must be pursued within the rule of law. The Employer, in this case the Chicago Board of Education, as well as the Union, must live up to the contract they freely entered into and have agreed to abide by for the term they agreed to, 2007 to 2012. It expires next year, when the parties are free to negotiate new terms and the Employer is free to adopt a new school day without obtaining the consent of the Union.

In the United States of America, no entity is above the law. No individual, corporation or governmental entity is free to unilaterally abrogate its contractual agreements without following the appropriate legal process, in this case review by the administrative agency established by the legislature to administer the law, and ultimately by the courts, as they have final review of administrative rulings.

It is the rule of law for which the IELRB stands today when it seeks injunctive relief under Section 16(d) of the Act to preserve the status quo ante and to ensure that the parties abide by the terms of the existing agreement without resorting to interference with employees’ exercise of their statutory rights, direct dealing, or unilateral modification of the collective bargaining agreement, until the parties agree to reopen the current contract, the current contract expires next year, or the IELRB resolves the pending unfair labor practices under the statutory scheme set forth by the Illinois legislature, ultimately subject to judicial review.

The Employer argues that Section 4.5(b) of the Act, 115 ILCS 5/4.5(b), deprives the IELRB of jurisdiction in this matter. Without otherwise resolving the issue of whether we have jurisdiction over the dispute in this case, we determine that Section 4.5 of the Act applies to bargaining, and does not apply to claims of independent violations of Section 14(a)(1) of the Act. In addition, Section 4.5 of the Act relates to disputes between.educational employers and exclusive representatives, and does not relate to an educational employer’s dealing with the employees. Therefore, we have jurisdiction over the Union’s request for injunctive relief.

We conclude that preliminary injunctive relief is just and proper under the circumstances of this matter. Because there is reasonable cause to believe that the Act may have been violated and because preliminary injunctive relief is just and proper under the circumstances of this matter, we grant the Union’s request that we seek preliminary injunctive relief pursuant to Section 16(d) of the Act.

III.

In view of the foregoing conclusion that preliminary injunctive relief is appropriate under these circumstances, we authorize the IELRB’s General Counsel to seek the following injunctive relief:

1. To prevent the Employer from dealing directly with employees about the length of the school day or compensation for working a longer school day.

2. To cease and desist from offering inducements to employees to vote in favor of lengthening the school day.

3. To cease and desist from unilaterally modifying the terms of the collective bargaining agreement.

IV.

This is not a final order that may be appealed under the Administrative Review Law. See 5 ILCS 100/10-50(b); 115 ILCS 5/16(a).

Decided: October 20, 2011

Issued: October 20, 2011

Chicago, Illinois

/s/ Lynne O. Sered___________________

Lynne O. Sered, Chairman

/s/ Ronald Ettinger___________________

Ronald Ettinger, Member

/s/ Gilbert O’Brien__________________ Gilbert O’Brien, Member

/s/ Michael H. Prueter_________________ Michael H. Prueter, Member

/s/ Michael K. Smith__________________ Michael K. Smith, Member

Illinois Educational Labor Relations Board

160 North LaSalle Street, Suite N-400

Chicago, Illinois 60601-3103

Telephone: (312) 793-3170

There is an audio available at the CTU Website (www.ctunet.com) of the comments made immediately after the decision. The first voices you hear are from the attorney for CPS, James Franczek.

FROM THE CHICAGO TEACHERS UNION

Greetings,

If you’re curious about what happened at today’s Illinois Education Labor Relations Board hearing where members voted 5-0 in favor of CTU’s strong defense of collective bargaining and the fight for a better school day, please listen to this short presser between Karen and a few reporters. The first voice you’ll hear is that of CPS’ lead attorney who attempts to explain way today’s victory. Please feel free to share this audio clip with members and supporters who seek unfiltered information.

Thanks,

Stephanie Gadlin, Communications, CTU

P.S. Please check our website. Audio from the entire Oct. 20th hearing is posted there—along with Attorney Robert Bloch’s excellent oral argument.

One of the most unusual responses to the legal decision came in an email to all Chicago teachers from Jean-Claude Brizard, CEO of CPS. As readers already know, Brizard was driven out of Rochester, New York after receiving a "No Confidence" vote from the teachers there, and after massive criticism from parents, teachers, and students. One of the thing Brizard did, as Rochester union leaders told Substance and CTU officials, was try to go behind the backs of just about everybody (especially the union) with his own claims, plans and projects.

He's still doing it, as the email below shows:

FROM JEAN-CLAUDE BRIZARD TO CHICAGO TEACHERS (OCTOBER 21, 2011)

Dear CPS Teachers and Principals:

As many of you may already know, the Chicago Teachers Union recently asked the Illinois Educational Labor Relations Board (IELRB) to block CPS schools from extending their school day through the Longer School Day Pioneer Program.

Today, the Labor Relations Board ruled in favor of the Union’s filing. The IELRB now will have to make a request to the Attorney General on today's decision, and then a circuit court judge will have to be petitioned to hear the case. The case will have to be won before that judge in order for the Pioneer Schools to roll back the time they've added. This could take several weeks.

Until then, it’s business as usual for the principals, teachers and students at schools that have added or will add 90 minutes of additional instructional time to their day. And moving forward, we remain committed to supporting any teachers that want to do the same at their school because we believe our students and teachers deserve more time together in the classroom on task in subjects like math, reading, science, music and art to help prepare them for success in college and career.

We will keep you posted with new information as it becomes available.

Thank you, Jean-Claude Brizard, Chief Executive Officer

Chicago Mayor Rahm Emanuel is also vowing to continue to support Brizard and the Board of Education in their violation of the law.



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