NOTICE 2025 IL App (4th) 240860-U This Order was filed under FILED Supreme Court Rule 23 and is June 9, 2025 NO. 4-24-0860 not precedent except in the Carla Bender limited circumstances allowed 4th District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
HARLEM CONSOLIDATED SCHOOL ) Direct Review from the DISTRICT 122, ) Illinois Educational Petitioner, ) Labor Relations Board v. ) No. 22-CA-0060-C HARLEM FEDERATION OF TEACHERS ) LOCAL 540, IFT-AFT, AFL-CIO; THE STATE OF ) ILLINOIS EDUCATIONAL LABOR ) RELATIONS BOARD; and LARA SHAYNE, in ) Her Official Capacity as Chairperson of the Illinois ) Educational Labor Relations Board, ) Respondents. )
JUSTICE DeARMOND delivered the judgment of the court. Justices Knecht and Grischow concurred in the judgment.
ORDER
¶1 Held: The appellate court reversed, finding the Illinois Educational Labor Relations Board did not clearly err in finding it had jurisdiction over this matter, but it did err in finding an employer’s motive irrelevant for an unfair labor practice charged under sections 11.1(f) and 14(a)(5) of the Illinois Educational Labor Relations Act (115 ILCS 5/11.1(f), 14(a)(5) (West 2020)).
¶2 In April 2022, Harlem Federation of Teachers Local 540, IFT-AFT, AFL-CIO
(Union) filed a charge with the Illinois Educational Labor Relations Board (Board), with Lara
Shayne in her official capacity as chairperson of the Board, against Harlem Consolidated School
District 122 (District), alleging an unfair labor practice, namely, twice failing to deduct and remit
union dues in contravention of section 11.1 of the Illinois Educational Labor Relations Act (Act)
(115 ILCS 5/11.1 (West 2020)). In a hearing before an administrative law judge (ALJ), the parties stipulated to the relevant facts but also presented witnesses who provided undisputed
testimony. The ALJ made factual findings and issued a recommended decision and order (RDO),
finding the District violated its statutory obligation to withhold and remit union dues, which
amounted to a per se violation of the duty to bargain in good faith—an unfair labor practice. The
District filed exceptions to the ALJ’s RDO, and the Board affirmed. Among other relief, the
Board ordered the District to reimburse the Union the amount of dues owed. The District
petitioned for direct review by this court, arguing the Board lacked jurisdiction in the matter, the
District did not commit an unfair labor practice, and the Illinois Constitution prevents the District
from using public funds to pay a private debt. We reverse the Board’s decision and remand for
further proceedings.
¶3 I. BACKGROUND
¶4 A. Stipulated Facts
¶5 The parties agreed, and continue to agree, on the material facts in this case. The
District is an employer within the meaning of section 2(a) of the Act, and the Union is a labor
organization within the meaning of section 2(c) of the Act (115 ILCS 5/2(a), (c) (West 2020)).
At all times relevant to this case, the Union and the District have been parties to a collective
bargaining agreement (CBA). Per the CBA, the District would deduct union dues from
bargaining unit members’ paychecks and remit those dues to the Union.
¶6 Beginning in the 2019-2020 school year, the parties agreed the District would
deduct union dues from bargaining unit members’ paychecks in 20 of 26 pay periods each school
year, up from 15 pay periods in prior years. Each pay period, the bargaining unit members
received a pay stub, which showed all withholdings for that pay period, including union dues
deductions. For the 2019-2020 school year, the District deducted and remitted union dues in 19
-2- pay periods and “neglected to deduct and remit union dues from bargaining unit members’
paychecks for the August 14, 2020 pay period.” This missed deduction and remittance totaled
$23,425.30.
¶7 For the 2020-2021 school year, the District again deducted and remitted union
dues in 19 pay periods and, again, “neglected to deduct and remit union dues from bargaining
unit members’ paychecks for the August 13, 2021 pay period.” This missed deduction totaled
$24,480.67, giving the two missed deductions a combined total of $47,905.97. Except for these
two pay periods, the District missed no other deductions. It continued deducting and remitting all
union dues according to the terms of the CBA.
¶8 On October 21, 2021, the Union first informed the District there was a shortfall in
their dues to the Illinois Federation of Teachers (IFT).
¶9 B. The Union’s Charge and the District’s Answer
¶ 10 Citing the missed deductions in August 2020 and August 2021, the Union filed an
unfair labor practice charge against the District on April 8, 2022. The Union charged the District
“violated section 115 ILCS 5/11.1 of the [Act] indicating that dues need to be withheld as
directed and that, ‘The failure of an educational employer to comply with the provisions of this
Section shall be a violation of the duty to bargain and an unfair labor practice.’ ” The Union’s
requested relief included, among other things, the District “pay[ing] [IFT] for the amounts not
paid; [and] [m]oving forward, make all deductions as directed.”
¶ 11 In its answer, the District denied committing an unfair labor practice and raised
the affirmative defense of lack of jurisdiction. To the latter point, the District labeled the Union’s
charge as untimely filed because the Union knew or should have known of the missed deductions
in August 2020 and 2021 because employees receive pay stubs showing all withholdings. The
-3- District argued that because the Union did not file the charge within six months of the alleged
unfair labor practice, the Board lacked jurisdiction over this matter.
¶ 12 C. Hearing Before the ALJ
¶ 13 The parties appeared in a hearing before the ALJ on February 8, 2023. In the
opening statement, the Union noted the parties agreed on the facts but disagreed on the District’s
legal liability. The Union argued that section 11.1(f) of the Act (115 ILCS 5/11.1(f) (West 2020))
controlled and compelled a finding the District committed an unfair labor practice. The District
countered by arguing it “simply neglected, through a clerical error, to deduct dues from
bargaining members’ *** pay periods that took place a year apart.” It urged such negligence
“cannot legally be construed as a repudiation of the bargaining process” or “be construed as a
failure of the duty to bargain” under the Act.
¶ 14 After a conference off the record, the parties “agreed to narrow the issue in this
charge to whether a violation of Section 11.1(f) of the Act is a strict liability offense under the
facts.” The Union rested its case-in-chief on the stipulations in the prehearing memorandum,
reserving the right to call rebuttal witnesses.
¶ 15 1. Josh Aurand
¶ 16 The District called Josh Aurand, who testified he was a District employee,
namely, the chief school business official, and he was familiar with the District’s payroll
procedures. He testified bargaining unit members received a pay stub every pay period, which
notified them if union dues had been deducted. He identified a typical pay stub issued to a union
member and pinpointed where exactly it documented dues deductions.
¶ 17 Aurand testified the District previously deducted union dues in 15 pay periods,
but, per the Union’s request, it began withholding union dues in 20 of the 26 pay periods for the
-4- 2019-2020 school year. The Union requested that “deductions start on the second day in October
and go through the end of the year,” that is, June 30, 2020. Aurand testified the District deducted
union dues in the first and second pay periods in a given month. If a month had three pay
periods, the District did not deduct dues in the third pay period.
¶ 18 Aurand testified the District processed summer payroll differently from
non-summer pay periods. He explained the District ran “the last June payments, and then any
remaining summer pay all at that time. So, they’re processed before the year is over. So, we
process those pays that go through the middle of August in June.” Aurand noted the District
“could be putting together four or five payrolls at once,” which could pose challenges, yet the
District faced additional challenges in June 2020 because the COVID-19 pandemic caused it to
implement “kind of a new process” for payroll. Aurand testified the District followed the same
pay schedules for the 2019-2020 and 2020-2021 school years.
¶ 19 Aurand recalled he learned about the two missed dues deductions during an
October 21, 2021, meeting where the Union “had brought up that there was a dues issue[ ] where
some dues have been not taken out of their checks.” Aurand testified neither he nor anyone else
in the District knew of the missed deductions until that meeting. He testified, “It was, ultimately,
determined that the District neglected to deduct the dues on two pay periods” a year apart in
August 2020 and 2021. Aurand testified the District did not intentionally fail to deduct union
dues during those two pay periods. He identified a “clerical error in the payroll department” as
the reason for the missed deductions. Aurand confirmed the District missed no other deductions
and has continued making the required deductions.
¶ 20 On cross-examination, Aurand testified the District could have made the
appropriate deductions for staff members still employed at the District when it first learned of the
-5- two missed deductions. He went on to say that “would have been our preferred method” for
resolving the problem. Aurand clarified it was “absolutely” possible to make the deductions once
the Union informed the District of the missed deductions, and as was revealed on redirect
examination, the offer was made by the District upon being advised of the error—and refused by
the Union.
¶ 21 2. Leah Krippner
¶ 22 As part of their case in rebuttal, the Union called Leah Krippner to testify. She
stated she was employed by the District as the high school librarian. Krippner confirmed she was
the first vice president of the Union and the vice president of IFT. She testified she worked with
Aurand in trying to resolve the dues shortfall, estimating they met 8 to 10 times. She explained
neither she nor Aurand “could pinpoint what the problem was,” elaborating, “We just knew that
IFT was looking for a lot of money from the [Union], and *** our local had previously had no
hand in tracking the finances.” Krippner noted the dues deduction-remittance process “happened
seamlessly in the past.” She testified the Union finally found the shortfall when two members
took a day off work on November 29, 2021, “and combed through the books.”
¶ 23 Krippner testified the Union and the District “talked about different ways that we
could resolve” the shortfall. She noted, “All of them seemed to be unfair to those of us who
remained loyal to the District, and were basically punishing us for staying, and hurting those of
us who had [not] opted to leave the district or leave the Union.” Krippner confirmed the parties
could not agree on a resolution. Krippner testified to the Union’s reasoning for rejecting the
District’s offers, saying, “[W]e hadn’t messed anything up, and people had kind of spent their
money, and now it was going to, particularly for our low-end employees, this was going to be
kind of a shocker to have money that you were counting on being there suddenly gone.”
-6- ¶ 24 On cross-examination, Krippner testified she received an electronic pay stub
every pay period, noting, “I open it sometimes, and sometimes I don’t.” She affirmed she was
aware the pay stub shows when union dues are deducted from her paycheck. She further
confirmed she was aware dues are deducted from 20 paychecks per year. She and the Union
opposed deducting the missing dues now “because for most people who are at the low income
bracket, taking out of your third check is kind of a gouge because you were counting on that
money.” However, Krippner acknowledged union members received more money than they were
owed when the District missed the deductions in August 2020 and 2021. She conceded that
under the District’s proposed resolution, “employees would have, ultimately, received the same
amount of money, in total overall.”
¶ 25 The parties submitted their CBA as a joint exhibit and the District submitted a pay
stub as an exhibit. The sample pay stub showed the dues deduction for a 2023 pay period was
$36. The ALJ took the matter under advisement and set the timeline for posthearing briefing.
¶ 26 D. The ALJ’s RDO
¶ 27 On October 25, 2023, the ALJ issued a written RDO, outlining his factual
findings and legal conclusions. The ALJ phrased the issue as whether “the District’s failure to
deduct dues from the August 14, 2020 and August 13, 2021 paychecks is a violation of the duty
to bargain in good faith pursuant to Section 11.1(f) of the Act.” The ALJ discussed section
11.1(f)’s origins and determined: “It is clear from the plain text of Section 11.1 that the
legislature intended to make a failure to deduct and remit dues a strict liability offense, and
equally clear that the legislature’s intended remedy is that the employer reimburse the union.”
The ALJ considered and rejected the District’s three defenses, specifically, (1) the Union’s
charge was untimely, (2) it did not bargain in bad faith, and (3) it cannot reimburse union dues
-7- with public funds.
¶ 28 Considering the stipulated facts, along with the testimony from Aurand and
Krippner, the ALJ concluded “the District’s failure to withhold and remit dues from employee
paychecks on August 14, 2020, and August 13, 2021 was in contravention of Section 11.1(a) and
(b) of the [Act].” Going further, the ALJ deemed the District’s violation a “per se *** violation
of the duty to bargain in good faith and, accordingly, a violation of Section 14(a)(5) and,
derivatively, (1) of the Act.” The ALJ ordered the District to reimburse the Union in the amount
of $47,905.97. The District filed exceptions to the ALJ’s RDO, bringing it before the Board.
¶ 29 E. The Board’s Opinion and Order
¶ 30 In its review, the Board adopted the ALJ’s factual findings, observing the ALJ
heard “undisputed testimony.” Rejecting the District’s jurisdiction argument, the Board
concluded it had jurisdiction to decide the matter because the Union timely filed the charge upon
learning of the missed dues deductions. It found “the record indicates the Union’s earliest
knowledge of the dues shortfall as October 21, 2021, when the Union brought it up to the
District, less than six months before the charge was filed.” The Board determined “the Union
knew or should have known of the alleged misconduct on October 21, 2021 and it had actual
knowledge on November 29, 2021.” Having settled the jurisdiction exception, the Board turned
to the District’s next exception, the meaning of section 11.1 of the Act.
¶ 31 The Board observed, “Section 11.1 is a somewhat recent amendment to the [Act],
thus this unfair labor practice charge arising in its context is a matter of first impression.” The
Board found “the plain meaning of the statute indicates that the legislature meant to make an
educational employer’s failure to collect and remit union dues a violation of that employer’s duty
to bargain and an unfair labor practice.” The Board, however, recognized the new section 11.1(f)
-8- (115 ILCS 5/11.1(f) (West 2020)) did “not create a stand-alone unfair labor practice.” It must be
considered in view of section 14 of the Act, which governs unfair labor practices (115 ILCS
5/14(a) (West 2020)).
¶ 32 Like the ALJ, the Board rejected the District’s argument that the Union must
show the District acted with a bad motive or antiunion animus when it failed to deduct and remit
union dues. However, unlike the ALJ, the Board refused to couch its decision in strict liability
terms, noting:
“While we may not characterize the General Assembly’s intent to make a
violation of Section 11.1 a strict liability offense, the General Assembly included
nothing to indicate that an educational employer’s motive behind its failure to
deduct and remit dues to the union is relevant in determining if it failed to comply
with Section 11.1.”
Accordingly, the Board rejected from consideration any reasons or explanations for the missed
deductions and ultimately determined “the plain meaning of Section 11.1 indicates that the
legislature meant to make an educational employer’s failure to collect and remit union dues a
violation of that employer’s duty to bargain and, as a result, an unfair labor practice within the
meaning of Section 14(a)(5) of the Act.”
¶ 33 Finally, the Board rejected the District’s argument that the ALJ’s proposed
remedy—the District reimbursing the Union—violated the Illinois Constitution because it
required using public funds to discharge a private debt. Without examining the Illinois
Constitution or considering any relevant case law, the Board simply found “the plain meaning of
the statute controls.” Because section 11.1(f) provided, “Relief for the violation shall be
reimbursement by the educational employer of dues that should have been deducted or paid
-9- based on a valid authorization given by the educational employee or employees,” the Board
found no other inquiry was necessary. It affirmed the ALJ’s RDO and ordered the same relief.
¶ 34 This appeal followed.
¶ 35 II. ANALYSIS
¶ 36 The District challenges the Board’s order, raising several arguments that we
condense into three: (1) the Board did not have jurisdiction over the Union’s unfair labor practice
charge because it was untimely; (2) the Board erroneously found the District committed an unfair
labor practice because it improperly construed section 11.1(f) of the Act without reference to
section 14(a)(5) by finding motive irrelevant; and (3) the Board issued an unlawful remedy
because Illinois law prohibits the District from paying a private debt with public funds.
¶ 37 A. Standards of Review
¶ 38 Our review of a decision by the Board “is governed by the Administrative Review
Law (735 ILCS 5/3-101 et seq. (West 1994)) and extends to all issues of law and fact presented
by the record.” Speed District 802 v. Warning, 242 Ill. 2d 92, 111 (2011). We deem the Board’s
factual findings “prima facie correct unless they are against the manifest weight of the
evidence.” Speed District 802, 242 Ill. 2d at 111-112. By contrast, we review all legal questions
de novo, giving no deference to the Board. Speed District 802, 242 Ill. 2d at 111. If the Board
decides a mixed question of law and fact, we apply the clearly erroneous standard. Speed District
802, 242 Ill. 2d at 112. We will find the Board’s decision clearly erroneous only when, looking
at the entire record, we are “left with the definite and firm conviction that a mistake has been
committed.” (Internal quotation marks.) Board of Trustees of University of Illinois v. Illinois
Educational Labor Relations Board, 224 Ill. 2d 88, 97-98 (2007). “While this standard is highly
deferential, it does not relegate judicial review to mere blind deference of [the Board’s] order.”
- 10 - Board of Trustees of University of Illinois, 224 Ill. 2d at 98.
¶ 39 B. Jurisdiction
¶ 40 Section 15 of the Act provides, “No order shall be issued upon an unfair practice
occurring more than 6 months before the filing of the charge alleging the unfair labor practice.”
115 ILCS 5/15 (West 2020). We have held section 15’s six-month time frame imposes a
jurisdictional restriction on the Board, meaning the Board has no power to act on a charge
brought outside the six-month limitations period. Charleston Community Unit School District
No. 1 v. Illinois Education Labor Relations Board, 203 Ill. App. 3d 619, 625 (1990); Ferrari v.
Illinois Department of Human Rights, 351 Ill. App. 3d 1099, 1103 (2004) (explaining an
administrative body’s power arises solely from statute, and it can only exercise the authority
given to it by the legislature). Section 15’s “six month filing period begins to run when the
charging party became aware (or should have become aware) of the actions which allegedly
constitute a violation of the [Act].” (Internal quotation marks omitted.) Jones v. Illinois
Educational Labor Relations Board, 272 Ill. App. 3d 612, 620 (1995).
¶ 41 The District raised lack of jurisdiction as an affirmative defense, so it bore the
burden of proving the Union’s charge was untimely. See Brooks v. McLean County Unit District
No. 5, 2014 IL App (4th) 130503, ¶ 31. The District, therefore, had to prove the Union knew or
should have known of the missed deductions more than six months before it filed the unfair-
labor-practice charge on April 8, 2022. See Jones, 272 Ill. App. 3d at 620. Put differently, the
District had to show the Union knew or should have known of the alleged unfair labor practice
before October 8, 2021. On the record before the Board, the District failed to carry this burden.
¶ 42 The parties stipulated the Union first informed the District of a shortfall in their
dues “on or around October 21, 2021.” Aurand testified similarly, confirming he—and the
- 11 - District—first learned of a shortfall in Union dues at the October 21, 2021, meeting between the
parties. Krippner testified the Union pinpointed the precise reason for the deficit, the two missed
deductions in August 2020 and 2021, on November 29, 2021. Presented with these undisputed
facts, the Board determined the Union should have known of the alleged unfair labor practice on
October 21, 2021, and had “actual knowledge” of it on November 29, 2021—both dates falling
within the six-month jurisdictional time limit to file a charge.
¶ 43 Before both the ALJ and the Board, and now to this court, the District has
maintained the Union should have known of the missed deductions in August 2020 and 2021. It
places the full weight of this argument on employee pay stubs. The parties stipulated that every
pay period, employees receive a pay stub identifying all deductions and withholdings, including
union dues. Despite this stipulation, the District also presented a comparable union employee’s
pay stub and had Aurand point out where it showed union dues deduction. The District also
elicited testimony from Krippner that she received a pay stub every pay period, she did not
always look at her pay stub, and the pay stubs showed union dues deductions. From this
evidence, the District asked the ALJ, the Board, and now this court to infer the Union should
have known of the missed deductions when employees received their pay stubs on August 14,
2020, and August 13, 2021. To be sure, inferring the Union should have known of the missed
deductions on these dates unquestionably places the Union’s unfair labor practice charge outside
the six-month filing window. The Board, however, did not make such an inference, and, in light
of the entire record, we cannot conclude it clearly erred in not doing so.
¶ 44 Besides establishing union employees received pay stubs that showed all
withholdings every pay period, the record also established the District and Union began a new
payment schedule for the 2019-2020 school year. The District began withholding union dues in
- 12 - 20 pay periods rather than in 15 pay periods, as it had done in prior years. For the first time, dues
deductions extended into the summer months. The missed deductions would have been the
twentieth and final deductions for the school year. At oral argument, the District’s counsel
maintained a payment schedule existed for the 2019-2020 school year that showed when dues
would be deducted, but it is not in the record. There is nothing to indicate the employees knew
the dues deduction schedule or were expressly informed of how the change in deductions would
affect them. The District based its jurisdiction argument solely on pay stubs. It presented no
evidence showing the procedures for remitting dues to the Union. Again, at oral argument,
counsel claimed the District remitted dues within 10 days of deducting them from employee
paychecks, yet the District had submitted no evidence to support the claim. To be sure, the
record is silent on how and when remittance occurs to the Union, so one could not infer when the
Union should have known of the missed deductions. Interestingly, Krippner testified the local
union authorities “had previously had no hand in tracking the finances,” but local union leaders
only learned of the shortfall when IFT told them. The District has not challenged this testimony.
The IFT is also a party to this suit, but, again, there is no evidence establishing how it would or
should know dues were missing. That would have been the District’s burden below.
¶ 45 Ultimately, the Board found the Union first became aware, or should have been
aware, of a dues shortfall on October 21, 2021. There is no evidence directly contradicting that
finding, so we deem it prima facie correct. Speed District 802, 242 Ill. 2d at 111-112. There is
merely an invited inference that an employee could or should have known earlier by looking at a
pay stub and could or should have known, for the first time, that dues deductions extended
through August. Because the Board found the Union filed its charge within the six-month
limitations period in section 15 (115 ILCS 5/15 (West 2020)), it concluded it had jurisdiction to
- 13 - hear and act on this matter. Considering the entire record, we cannot say the Board’s conclusion
is clearly erroneous—we are not left with the firm and definite conviction a mistake has been
made. Board of Trustees of University of Illinois, 224 Ill. 2d at 97-98.
¶ 46 The District directs our attention to this court’s opinion in Wapella Education
Ass’n, IEA-NEA v. Illinois Education Labor Relations Board, 177 Ill. App. 3d 153, 168 (1988),
where we said, “[T]he proper focus is on the time of the discriminatory act and not the point at
which the consequences of the act become most painful.” In deciding when the Union knew or
should have known of the missed deductions, the District asks us to focus on when the dues were
missed and not when the Union felt the pain of a shortfall in union dues. If we focused solely on
when the omission occurred, then the Union’s charge would be untimely. But we do not find
Wapella controlling, or even compelling, here. First, we note the District conveniently quotes
only part of Wapella’s principle. The court fully noted, “While the proper focus is on the time of
the discriminatory act and not the point at which the consequences of the act become most
painful [citation], one must also consider the nature of the discriminatory act.” (Emphasis
added.) Wapella, 177 Ill. App. 3d at 168. Second, considering the nature of the act here, the facts
are totally different, making that particular legal principle ineffective here. There, we had to
determine when the six-month jurisdictional limitation in section 15 of the Act began to run.
Specifically, we had to decide when the union knew or should have known of a unilateral action
by the school district—when the action was announced or when it was implemented. Wapella,
177 Ill. App. 3d at 159. This court held the union knew or should have known of the unilateral
action when it was announced. Wapella, 177 Ill. App. 3d at 168. Here, the District neither
announced nor implemented any unilateral change to the dues deduction process to put the Union
on notice. The parties stipulated the two missed deductions amounted to negligence the District
- 14 - did not know about until months afterwards. Moreover, unlike Wapella, where the record was
replete with evidence the union knew or should have known about the unilateral action, there is
little evidence here showing when the Union knew about a dues shortfall. For these reasons, we
find Wapella unavailing here.
¶ 47 C. Section 11.1(f) of the Act
¶ 48 This case turns upon the meaning of section 11.1(f) of the Act (115 ILCS
5/11.1(f) (West 2020)), a novel question from a fairly new addition to the Act. The Board rightly
observed, “[T]his unfair labor practice charge arising in its context is a matter of first
impression.” Specific to these facts, we must consider, does section 11.1(f) cover the District’s
conduct of twice neglecting to withhold and remit union dues? In more general terms, is an
employer’s motive a factor when determining if it violated section 11.1(f), and how does any of
that fit within the framework of unfair labor practices? As we will explain below, we hold
section 11.1(f) is distinct from other subsections in section 11.1 because it is uniquely tethered to
section 14(a)(5) (115 ILCS 5/14(a)(5) (West 2020)), which governs unfair labor practices where
good faith is paramount; consequently, motive is a relevant factor for consideration when
presented with an unfair-labor-practice charge under section 11.1(f).
¶ 49 The meaning of a statute presents a purely legal question we review de novo; thus,
our “review is independent and not deferential.” Cinkus v. Village of Stickney Municipal Officers
Electoral Board, 228 Ill. 2d 200, 210 (2008). Our “primary objective in construing a statute is to
ascertain and give effect to the intention of the legislature.” Chicago Teachers Union, Local No.
1 v. Board of Education of City of Chicago, 2012 IL 112566, ¶ 15. “The most reliable means of
achieving that goal is to apply the plain and ordinary meaning of the statutory language.”
Bowman v. Ottney, 2015 IL 119000, ¶ 9. Indeed, the specific words the legislature chose to use
- 15 - are the best evidence of legislative intent. Kloeppel v. Champaign County Board, 2021 IL App
(4th) 210091, ¶ 15. But we are careful not to isolate words; we still “view the statute as a whole,
construing words and phrases in light of other relevant statutory provisions.” Bowman, 2015 IL
119000, ¶ 9; see Cinkus, 228 Ill. 2d at 216-17 (“The statute should be evaluated as a whole, with
each provision construed in connection with every other section.”). Our supreme court “has
previously held that sections of the same statute should be considered so that each section can be
construed with every other part or section of the statute to produce a harmonious whole.” Board
of Education of City of Chicago v. Moore, 2021 IL 125785, ¶ 40 (citing Land v. Board of
Education of City of Chicago, 202 Ill. 2d 414, 422 (2002)). With these principles in mind, we
turn to the disputed statute, section 11.1(f) of the Act (115 ILCS 5/11.1(f) (West 2020)).
¶ 50 Section 11.1(f) provides:
“The failure of an educational employer to comply with the provisions of
this Section shall be a violation of the duty to bargain and an unfair labor practice.
Relief for the violation shall be reimbursement by the educational employer of
dues that should have been deducted or paid based on a valid authorization given
by the educational employee or employees. In addition, the provisions of a
collective bargaining agreement that contain the obligations set forth in this
Section may be enforced in accordance with Section 10.” 115 ILCS 5/11.1(f)
(West 2020).
The parties spar over what this means and how it fits into the broader context of unfair labor
practices, particularly whether, as part of proving an unfair-labor-practice charge, the charging
party must show an employer acted in bad faith when failing to comply with section 11.1 (115
ILCS 5/11.1 (West 2020)). In other words, they debate whether an employer’s motive in failing
- 16 - to comply with section 11.1 is relevant to determining whether it violated the duty to bargain in
good faith and committed an unfair labor practice. The District insists motive matters, and the
Board counters it does not. Below, the Board concluded, “[T]he General Assembly included
nothing to indicate that an educational employer’s motive behind its failure to deduct and remit
dues to the union is relevant in determining if it failed to comply with Section 11.1.” In arriving
at that conclusion, the Board emphasized the “plain meaning” of the statute, presumably the
mandatory meaning of the word “shall.” We agree the statute’s plain and ordinary meaning
controls, but we do not arrive at the same conclusion as the Board. Considering section 11.1(f)
within the context of section 11.1 as a whole, and then considering section 11.1 within the larger
context of the entire Act, we hold section 11.1(f)’s plain meaning makes motive relevant in
determining if an employer failed to comply with section 11.1.
¶ 51 The General Assembly enacted section 11.1 of the Act in 2019, and it became
effective on December 20, 2019. On the whole, the Act “regulate[s] labor relations between
educational employers and educational employees” (115 ILCS 5/1 (West 2020)), and the newly
added section 11.1 of the Act governs “dues collection” by setting out procedures for deducting
and remitting union dues by making employers the middleman in that process. To that end,
subsection (a) provides that educational employers “shall make payroll deductions of employee
organization dues *** for an employee organization that is the exclusive representative,” and it
mandates “[s]uch deductions shall be made in accordance with the terms of an employee’s
written authorization and shall be paid to the exclusive representative.” 115 ILCS 5/11.1(a)
¶ 52 We observe section 11.1 does not micromanage this process. It says little about
when and how an employer deducts and remits union dues. Instead, it offers parties latitude to
- 17 - bargain about how the process plays out under a particular CBA, setting only the outer
parameters for different timelines. For example, subsection (b) requires that “upon receiving
written notice of the authorization, the educational employer must commence dues deductions as
soon as practicable, but in no case later than 30 days after receiving notice from the employee
organization.” 115 ILCS 5/11.1(b) (West 2020). In the same vein, “Employee deductions shall
be transmitted to the employee organization no later than 10 days after they are deducted unless a
shorter period is mutually agreed to.” 115 ILCS 5/11.1(b) (West 2020). Subsection (c) mandates
that once an employer begins withholding and remitting union dues for an employee, the
employer must continue to do so until it receives proper notice the employee revoked the
authorization, or the employee is no longer employed by the employer. 115 ILCS 5/11.1(c)(1),
(2) (West 2020).
¶ 53 Other subsections in 11.1 govern how information is shared between employees,
employers, and the union. See 115 ILCS 5/11.1(d), (e) (West 2020) (providing employees should
direct authorizations, cancellations, changes in authorizations, or revocations of authorizations to
the union, who would then relay that information to the employer). Those sections require a
union to indemnify an employer if it provides an employer with inaccurate information, the
employer relies on that information in good faith, and a claim against the employer arises. See
115 ILCS 5/11.1(d), (e) (West 2020). We notice again section 11.1 does not control how
information is shared, when it is shared, or how and when unions indemnify employers.
¶ 54 We understand the newly enacted section 11.1(f) to implement and govern basic
standards and processes for dues collection. This is the simple framework in which subsection (f)
exists and the context in which we must read it. As we noted supra ¶ 50, section 11.1(f) states,
“The failure of an educational employer to comply with the provisions of this Section shall be a
- 18 - violation of the duty to bargain and an unfair labor practice.” 115 ILCS 5/11.1(f) (West 2020).
The Board relied (and continues to rely) on section 11.1(f)’s plain language, maintaining the
statute “does not mention motive or assign any significance to the employer intent.” It, therefore,
reasons “the employer’s motive is irrelevant under the plain language of section 11.1(f).” We
disagree.
¶ 55 Looking at the language, right away, we observe the statute invokes the terms
“duty to bargain” and “unfair labor practice”—terms defined and linked within the Act. This is
important for two reasons. One, these are terms within labor law unquestionably tied to the
motive of the parties since they regularly form the basis of most labor litigation. Two, these
terms necessarily link section 11.1(f) to other sections in the Act where motive matters.
¶ 56 Section 10(a) of the Act imposes the duty to bargain. See 115 ILCS 5/10(a) (West
2020). It reads: “Collective bargaining is the performance of the mutual obligations of the
educational employer and the [union] to meet at reasonable times and confer in good faith with
respect to wages, hours, and other terms and conditions of employment.” (Emphasis added.) 115
ILCS 5/10(a) (West 2020). Section 10(a) certainly makes good faith (or motive) relevant to the
duty to bargain.
¶ 57 Section 10(c) requires that a CBA negotiated by educational employers and
employees must include “a grievance resolution procedure *** and shall provide for binding
arbitration of disputes concerning the administration or interpretation of the agreement.” 115
ILCS 5/10(c) (West 2020). The nature of the grievance-arbitration process, where alleged
violations need to be adjudicated by an independent arbiter, seems inconsistent with per se or
strict liability offenses. Section 11.1(f) references section 10(c) by making the
grievance-arbitration process in a CBA a possible avenue for relief for a violation of section
- 19 - 11.1(f). This reference further suggests section 11.1(f) involves good faith (or motive).
¶ 58 The term “unfair labor practice” also appears throughout the Act. It is defined in
section 2(h) as “any practice prohibited by Section 14 of this Act.” 115 ILCS 5/2(h) (West 2020).
Section 14, in turn, lists various unfair labor practices, including the one charged here: “Refusing
to bargain collectively in good faith with [a union] which is the exclusive representative of
employees in an appropriate unit, including, but not limited to, the discussing of grievances with
the exclusive representative.” (Emphases added.) 115 ILCS 5/14(a)(5). Section 14(a)(5)’s plain
language most assuredly makes motive relevant for the unfair labor practice because good faith
is a required element. The Board’s brief acknowledged as much, noting “an employer’s motive is
often relevant to deciding whether it committed an unfair labor practice.” (Emphasis added.)
(citing Speed District 802, 242 Ill. 2d at 113). Looking at the specific words and references the
legislature chose to use in section 11.1(f), words infused with motive, we find the legislature
intended for motive to play a part in considering an unfair labor practice under the statute. See
Kloeppel, 2021 IL App (4th) 210091, ¶ 15 (stating the specific words used are the best evidence
of legislative intent).
¶ 59 Reading section 11.1(f)’s plain language to contemplate an employer’s motive
brings cohesion to the Act—it allows section 11.1(f) and section 14(a)(5) to work together
seamlessly. By using “duty to bargain” and “unfair labor practice,” section 11.1(f) necessarily
ties a violation of section 11.1 to section 14(a)(5) of the Act. The parties agree on this point.
Indeed, the Board acknowledged that “[s]ection 11.1(f) does not create a stand-alone unfair labor
practice.” So, since sections 11.1(f) and 14(a)(5) both address a claimed unfair labor practice
relating to the duty to bargain, we must consider them together and give them harmonious effect.
Land, 202 Ill. 2d at 422. It is well-established law that motive or good faith is relevant in
- 20 - evaluating an unfair-labor-practice charge brought under section 14(a)(5). See Community Unit
School District No. 5 v. Illinois Educational Labor Relations Board, 2014 IL App (4th) 130294,
¶¶ 81-85; Service Employees International Local Union No. 316 v. State Educational Labor
Relations Board, 153 Ill. App. 3d 744, 750-53 (1987). We presume the legislature had section
14(a)(5) and its motive requirements in mind when it enacted section 11.1(f) because the statutes
relate to the same subject matter. People v. Burge, 2021 IL 125642, ¶ 31. Moreover, we presume
the legislature expected the statutes to be construed together. Burge, 2021 IL 125642, ¶ 31.
¶ 60 Ultimately, it stands to reason that if the legislature expressly linked section
11.1(f) to section 14(a) through motive language like “duty to bargain” and “unfair labor
practice” and references to an additional optional grievance-arbitration procedure, then motive
must be just as relevant to section 11.1(f) as it is to sections 10 and 14(a)(5). We, therefore, reject
the Board’s determination that section 11.1(f) contains “nothing to indicate that an educational
employer’s motive behind its failure to deduct and remit dues to the union is relevant in
determining if it failed to comply with Section 11.1.”
¶ 61 To support its position that motive is irrelevant to these allegations, the Board
argues “any language regarding motive is absent from section 11.1” on the whole. The Board
identifies as examples sections 11.1(d) and (e) of the Act (115 ILCS 5/11.1(d), (e) (West 2020)).
These sections require the union to indemnify an employer for damages or reasonable costs when
the union mistakenly gives the employer faulty information about employee dues authorizations,
changes, or revocations, the employer relies on the information, and as a result, an employee
files a claim against the employer. The Board argues these subsections “assign[ ] no significance
to the union’s lack of intent to mislead the employer” and require indemnification “without
regard to the union’s motive.” Simply put, the union must indemnify the employer regardless of
- 21 - motive. We may well agree with the Board’s view on sections 11.1(d) and (e). However, this
argument does not strengthen the Board’s conclusion about section 11.1(f). Instead, it weakens
it. Unlike in section 11.1(f), the legislature did not specify the act or omission by the union
would be an unfair labor practice under sections 11.1(d) and (e). This omission makes sections
11.1(d) and (e) vastly different from section 11.1(f). As a result, they are not linked to either
section 10 or section 14(a)(5) of the Act. We must presume this omission was intentional. People
v. Edwards, 2012 IL 111711, ¶ 27 (“Where language is included in one section of a statute but
omitted in another section of the same statute, we presume the legislature acted intentionally and
purposely in the inclusion or exclusion.”). There must be significance in including “duty to
bargain” and “unfair labor practice” in 11.1(f) but not in 11.1(d) or (e). Why? Because the failure
to comply under section 11.1(f), an affirmative failure to comply by the employer, needs to be
evaluated further to determine whether it was intentional and possibly an unfair labor practice, or
something else—like a mistake. The different wording signals the legislature wanted the conduct
to be evaluated, classified, and treated differently. It is reasonable to find the legislature intended
motive to factor into section 11.1(f), where the failure to comply immediately invokes “duty to
bargain” and “unfair labor practice” language, but not in sections 11.1(d) and (e), where it does
not invoke those terms.
¶ 62 The Board presumably bases its plain meaning evaluation of section 11.1(f) on
the use of “shall” as mandatory—“failure of an educational employer to comply with the
provisions of this Section shall be a violation of the duty to bargain and an unfair labor practice.”
(Emphasis added.) 115 ILCS 5/11.1(f) (West 2020). The Board’s view is not unfounded because
“[g]enerally, ‘shall’ indicates a mandatory intent” from the legislature. Emerald Casino, Inc. v.
Illinois Gaming Board, 346 Ill. App. 3d 18, 27 (2003). But “shall” can also indicate a directory
- 22 - intent from the legislature. Brennan v. Illinois State Board of Elections, 336 Ill. App. 3d 749, 759
(2002); see Emerald Casino, Inc., 346 Ill. App. 3d 18, 27 (2003) (stating courts sometimes
interpret “shall” as directory). “The legislative intent [for ‘shall’] can be ascertained from a
consideration of the entire Act, its nature, its purpose, and the consequences that would result
from interpreting the provision in a specific way.” Brennan, 336 Ill. App. 3d at 27. Considering
section 11.1 within the entire Act, we find 11.1(f)’s use of “shall” to be directory, not mandatory.
¶ 63 As we have noted, section 11.1(f) is expressly linked to sections 10 and 14(a)(5)
of the Act. However, reading “shall” as mandatory in section 11.1(f) divorces it from those
provisions because that interpretation removes motive or good faith from duty to bargain or an
unfair labor practice. This reading allowed the ALJ to conclude section 11.1(f) created a strict
liability offense and a per se violation of the duty to bargain. The Board affirmed this conclusion,
although it did not use the terms “strict liability” or “per se.” But this cannot be what the
legislature intended.
¶ 64 To reach this conclusion, one must isolate section 11.1(f) from the rest of the Act
and read it without reference to any other statutory provisions. We are not to read words, or even
statutory sections, in isolation (see Bowman, 2015 IL 119000, ¶ 9); rather, we must look at the
whole statute “so that each section can be construed with every other part or section of the statute
to produce a harmonious whole.” Moore, 2021 IL 125785, ¶ 40. Reading 11.1(f) in isolation and
treating it as a per se unfair labor practice where motive is irrelevant would not bring harmony to
the Act. On the contrary, it would make 11.1(f) an anomaly within the Act. The Board does not
cite, and we did not find, another section in the Act where noncompliance amounts to a per se
violation of the duty to bargain or a per se unfair labor practice by any party. We are aware of
one general category where Illinois labor case law speaks of per se violations—“An educational
- 23 - employer’s unilateral change with respect to a mandatory subject of bargaining constitutes a
per se violation of the duty to bargain, without regard to consideration for good or bad faith.”
Georgetown-Ridge Farm Community Unit School District No. 4, Vermilion County, Illinois v.
Illinois Educational Labor Relations Board, 239 Ill. App. 3d 428, 450 (1992) (7 Pub. Employee
Rep. (Ill.) par. 1045, at IX-188). The Union agreed the District twice “neglected” to deduct and
remit dues; it has never alleged the District implemented a unilateral change to the process of
dues collection under the CBA.
¶ 65 We conclude interpreting “shall” as mandatory in section 11.1(f) would make it
unlike any other claimed violation in section 11.1 or elsewhere in the Act. Further, it would be
unlike any other per se offense in the labor case law. We cannot conclude the legislature
intended such a result with a mandatory rendering of “shall.” Under the Act, the nature of a
violation of the duty to bargain and an unfair labor practice involves motive. The overall purpose
of section 11.1(f) is to make dues collection subject to the duty to bargain and set basic standards
and processes for parties to follow. It does not contemplate random per se violations for mistakes
where an employer neglects to deduct and remit union dues. Critically, the consequences of
reading “shall” as mandatory would isolate section 11.1(f) from the Act and render it an
anomaly. Considering the entire Act, we do not believe “shall” eliminates the good-faith element
implicit in the duty to bargain and the attendant unfair labor practice. See Brennan, 336 Ill. App.
3d at 27. Within this specific context—section 11.1(f) outlining a violation that must be
evaluated under section 14(a)(5)—we understand “shall” to be directory and not mandatory. See
Emerald Casino, Inc., 346 Ill. App. 3d at 27 (stating courts sometimes interpret “shall” as
directory). In other words, “shall” acts to direct parties to section 14(a)(5) to resolve claims
arising out of section 11.1(f).
- 24 - ¶ 66 We hold section 11.1(f) of the Act is distinct from other subsections in section
11.1 and the only one connected to sections 10 and 14(a) of the Act; therefore, section 11.1(f)
makes motive relevant when determining if an employer’s failure to comply with section 11.1
constitutes a violation of the duty to bargain and an unfair labor practice. Section 11.1(f) does not
create a strict liability offense, nor does it create a per se violation of the duty to bargain. The
former term is ill-suited to labor law and the latter term is a principle applied in only exceptional
circumstances because an employer’s motive must be considered when a union levies an unfair-
labor-practice charge.
¶ 67 Matters of motive and good faith in the labor context are factual questions
requiring “ ‘a review of all of the circumstances.’ ” Community Unit School District No. 5, 2014
IL App (4th) 130294, ¶ 81 (quoting Service Employees International Local Union No. 316, 153
Ill. App. 3d at 751). What is bad faith in one circumstance may not be bad faith in another
situation given the totality of the circumstances. Community Unit School District No. 5, 2014 IL
App (4th) 130294, ¶ 81. Because motive is a fact question relevant in determining whether an
employer violated the duty to bargain and committed an unfair labor practice under section
11.1(f), we remand this matter to the Board for further proceedings consistent with the order.
Given our remand, being mindful of the doctrine of constitutional avoidance and wary of
treading on topics that may become moot or advisory, we reserve for another day the question of
whether the Illinois Constitution allows the Board to order the District to pay a private debt with
public funds. See Schwartz v. Illinois Human Rights Comm’n, 2024 IL App (4th) 231248, ¶ 99
(reciting our supreme court’s well-established rule, “[C]ases should be decided on
nonconstitutional grounds whenever possible, reaching constitutional issues only as a last
resort.”); Peach v. McGovern, 2019 IL 123156, ¶ 64 (“Courts of review will not decide moot or
- 25 - abstract questions, will not review cases merely to establish precedent, and will not render
advisory opinions.”).
¶ 68 III. CONCLUSION
¶ 69 For the reasons stated, we reverse the Board’s judgment. We remand for
proceedings consistent with this order.
¶ 70 Reversed and remanded.
- 26 -