Speed District 802 v. Warning

950 N.E.2d 1069, 242 Ill. 2d 92

Opinions

JUSTICE BURKE

delivered the judgment of the court, with opinion.

Justices Thomas, Carman, and Karmeier concurred in the judgment and opinion.

Chief Justice Kilbride dissented, with opinion.

Justice Freeman dissented, with opinion, joined by Justice Theis.

Chief Justice Kilbride dissented upon denial of rehearing, with opinion.

Justice Freeman dissented upon denial of rehearing, with opinion.

OPINION

On January 8, 2008, the Illinois Educational Labor Relations Board (IELRB or the Board) issued a decision, finding that SPEED District 802 (the District) violated section 14(a)(3) and, derivatively, section 14(a)(1) of the Illinois Educational Labor Relations Act (115 ILCS 5/14(a)(l), (a)(3) (West 2004)), when it failed to renew the teaching contract of Rachel Warning (Warning), a nontenured probationary teacher, at the end of the 2004-05 school year. The decision of the Board was affirmed in a divided opinion by the appellate court. See 392 Ill. App. 3d 628. We granted the District’s petition for leave to appeal and now set aside the Board’s decision and reverse the appellate court judgment.

BACKGROUND

The following facts are taken from the record and transcripts of the hearing before the administrative law judge.

Warning began working as a special education teacher for SPEED District 802 in the 2001-02 school year and was assigned to teach a class of severely physically handicapped teenage students. With regard to this first school year, Warning’s personnel file contains only Warning’s annual evaluation, which shows she received an overall rating of “Standard.”¹

During the following 2002-03 school year, however, a number of concerns surfaced regarding Warning’s performance. Warning’s personnel file contains a letter of reprimand, dated October 2, 2002, indicating that Warning was admonished for failing to notify the principal or other administrator before she sent a teaching assistant home due to his misconduct. Warning was advised that she did not have the authority to take this type of disciplinary action on her own and, in doing so, her actions denied the administration the opportunity to assess and document the situation firsthand.

Although Warning again received an overall rating of “Standard” in her annual evaluation, dated January 31, 2003, she received a number of “unsatisfactory” ratings in individual performance objectives, as well as some “excellent” ratings and comments. The objectives in which she received poor ratings were: “Effectively manages the instructional team,” “Interacts effectively with co-workers,” and “Exhibits professionalism and is a role model for other teachers and students.” In the recommendation section of the evaluation form, Principal Call wrote:

“When it comes to the personnel working using a trans-disciplinary approach, that is not evident through many different observations. We have discussed concerns with the support staff regarding a comfort level in the classroom.

^ Í

Your relationships with your classroom staff have been negative and strained this year. Earlier in the (school) year you made decisions about one of your assistants which were not within your role. When you were asked for follow up information on this situation, you did not follow up.”

In response, Warning wrote on the evaluation form:

“I have requested from administrator and support staff for help in all matters but still this whole situation seems to be blamed on me.”

Attached to the 2002-03 evaluation was a memorandum, also dated January 31, 2003, and written by Principal Call. It stated, in part:

“This afternoon we met to hold the post-conference meeting for your final evaluation. At this meeting the discussion centered on the concerns I have regarding your relationship and interactions with your support staff. I reviewed with you these areas and talked about how you need to be more effective in managing your classroom team. It is your responsibility to model and demonstrate for your assistants how they should be responding to support staff.

You received your copy of the evaluation on the morning of January 30, 2003. That morning, after receiving the evaluation, you approached the Speech Pathologist (in front of other staff) and blamed her for your unsatisfactory ratings. Your actions caused this person to be found in tears in the hall by several other staff members. You also addressed another one of your support staff members that same morning in such a negative manner that she told you that she was not going to be able to assist you on a field trip.

Your reaction to the evaluation and interactions with the staff following demonstrated unsatisfactory behavior. At this post conference I discussed with you the need for you to develop a plan of what you will do to address the concerns that have arisen related to teaming in your classroom. You told me that you didn’t know what to do and wanted me to help you with this. I again explained that I wanted you to come up with a plan and then we can discuss it. You asked me what happens if you do not come up with a plan, will I fire you. I told you that I had not said anything about firing you.”

Warning submitted a written response to the memorandum, stating:

“The areas I was evaluated in unsatisfactorily seem unfair. I was unaware of the support staff avoiding my classroom and not feeling comfortable until the administrator made me aware of the personality conflict with an assistant in my classroom. (I was disappointed that the chain of communication was not followed. The support staff should have communicated their concerns to me first.) I was then directed to communicate this to my assistant and try to make the classroom atmosphere more comfortable for the support staff. I was directed to start documenting concerns. I had no concern in regards to my assistants other than in the beginning of the year. Since then everything has been excellent and I saw no need for further action.

***

I feel my attempts to communicate and be a team member are belittled and or not considered. I feel the support staff does not respond to my attempts to communicate and then it seems as if I am rated poorly for the personality communication problems.”

Warning was given another memo from Principal Call several months later, on May 12, 2003. This memo provided Warning, once again, with written notice of concerns the administration had regarding Warning’s dealings with her support staff. The document also served to memorialize a conference meeting that had been held earlier that day and was attended by Warning, Principal Call, an Occupational Therapist (OT) named Robin, and two other members of Warning’s support staff. The purpose of the meeting was to discuss Warning’s interference in Robin’s decisionmaking regarding scheduling of “make-up” therapy time with a student. Warning was advised that she did not have the authority or responsibility to assess another professional staff member’s performance. Warning was advised that she was the only teacher who had any problems dealing with Robin and, in the future, if she had any concerns regarding a staff member’s performance, she should direct her concerns to the administration rather than the staff member. Also, Warning was advised that she had acted improperly by discussing her staff concerns with a parent.

The memo also reprimanded Warning for her behavior during the meeting. According to the memo, Warning and one of her assistants were rolling their eyes and nudging each other on the leg when certain comments were made by Robin or the principal. The memo advised Warning that she was expected to act more responsibly and professionally, and reminded her that she would be unable to meet the needs of her students if “the environment [in her classroom] is so tense that the support staff does not want to work in your room.”

In closing, Principal Call noted that, since the team meeting conducted earlier in the year, there had been “little or no improvement” in the situation in Warning’s classroom and that Warning’s interactions with her support staff was having a negative impact on her performance as a professional. Principal Call asked Warning to develop a plan on how she could improve the situation in her classroom. Principal Call commented that this was the second request for such a plan and she stated, “In developing this plan, you want to take time and look at what you need to do, not what others need to do.” Warning was also advised that her classroom behavior would continue to be monitored for the remainder of that school year and the next.

Warning responded to this memo largely by denying that her behavior with regard to Robin had been improper. Warning also denied rolling her eyes or nudging her assistant. In addition, Warning expressed her belief that, since the earlier team meeting, “everything had improved tremendously.” Warning made no response to Principal Call’s request that she develop a plan to improve the atmosphere in her classroom. Instead, she provided a list of “concerns” she had regarding Robin, mentioning three or four instances when, in Warning’s view, Robin had not acted as a team player in her classroom.

In another memo dated May 20, 2003, Principal Call documented the fact that Warning failed to show up for a scheduled meeting to discuss the plan she had been directed to develop on improving staff relationships in her classroom. The memo indicated that Principal Call contacted Warning to remind her of the meeting and when Warning finally arrived at Principal Call’s office, she had not prepared a written plan. Moreover, Principal Call noted that when she asked Warning if she had any ideas on how she could improve her classroom atmosphere, Warning “with a smile on her face” responded, “I am going to continue to do an excellent job as I have done in the past.”

Principal Call also noted that Warning had acted unprofessionally after receiving the earlier memo and she advised Warning that she should take seriously the concerns that were being addressed with her, particularly in light of the fact that one of Warnings’s assistants had filed a complaint with the State Board alleging that students in her classroom were not getting all the services they required. As a result of that complaint, Principal Call needed Warning to supply copies of her lesson plans for that school year in addition to supplying a plan on how she could improve her interactions with staff members.

Warning’s response to Principal Call’s May 20, 2003, memo, dated May 22, 2003, purports to be Warning’s plan for improving her relationships with her staff. The document indicates that it is the third plan submitted by Warning due to the fact that others had been “rejected.” This plan, however, did not contain any ideas on how Warning might improve her relationships with her staff. Instead, it simply listed things Warning agreed to do or “continue” to do. For example, the first item provides:

“1. Will continue to communicate with all SPEED Team members by: (a) By [sic] a plan developed and agreed upon by all members of the SPEED Team.”

The last two items on the list provide:

“6. Per your request (Kathy Call), Teacher will not monitor support staff minutes.

7. Per your request (Kathy Call), I will decrease my jovial demeanor and be more serious.” (Emphasis in original.)

The next item in Warning’s personnel file is her evaluation for the 2003-04 school year, Warning’s third probationary year.² The evaluation form, dated January 26, 2004, was completed by Principal Call and, once again, gave Warning an overall rating of “Standard.” In her comments, Principal Call commended Warning for making “great strides” in implementing suggestions that had been made and for taking “a great step in the direction of creating a positive environment” in her classroom. The evaluation indicates that Warning was given all new assistants for this school year and “on several occasions” Warning had sought help directly from Principal Call to work out a plan that would allow these new assistants to be more actively involved in the lesson plans. Principal Call encouraged Warning to continue the practice of seeking help in areas of need.

Principal Call also advised Warning in the evaluation that she needed to be more consistent in her data collection in order to provide a better measure of her students’ progress. She noted, too, that Warning needed to implement different activities to keep her students engaged when they were not working directly with a staff member.

The following 2004-05 school year was Warning’s fourth year as a probationary teacher for SPEED District 802. On November 16, 2004, Assistant Principal Julie Egan conducted an initial observation of Warning’s classroom for that school year. Egan described Warning’s classroom as “warm and supportive” and gave Warning high grades for her “positive and caring connections” with the students, her motivation of the students, and her management and organization of the classroom in regard to providing space and interesting activities for the students. However, Egan suggested that Warning “continue to have open communication” with her team and “consider meeting daily” with them so they could discuss the monthly units and the needs of each student. Also, similar to comments in Warning’s evaluation a year earlier, Egan reminded Warning that she must prepare written daily lesson plans and that she needed to find a means of monitoring and recording student progress.

The next entry in Warning’s personnel file is a memo from Dr. Genevra Clasberry, director of Human Resources, dated December 8, 2004. The subject line reads: “Attempt to Correct Deficiencies” and the body of the memo explains that on December 3, 2004, a paraprofessional had reported Warning for using inappropriate language. The memo memorializes a meeting that was held with Warning, which was also attended by the new principal, Ben Runyan, and a union representative, Beth Wierzbicki. The memo indicates that Warning admitted at the meeting that she had used improper language, but commented that she had only been “joking.”

It was noted in Dr. Clasberry’s memo that the current incident was the second time during that school year³ that a paraprofessional had reported Warning for inappropriate language. Warning was advised that her conduct was unacceptable and that her language had to be corrected. Warning also was advised that further incidents could result in discipline “up to dismissal.” To remedy the problem, Warning was told that she would be required to participate in training focused on building interpersonal skills.

In Warning’s response, dated December 15, 2004, she implied that her use of improper language was not serious because she had been talking to an adult outside the classroom setting. Further, Warning wrote:

“This behavior was corrected immediately and My [stc] apology was accepted. According to the hierarchy in the chain of command, the situation was taken care of between the individuals. And was also at the time stated by the paraprofessional that it was not a situation that needed to be addressed. This should have gone no further (which was two weeks later) and blown out of proportion. The situation had been resolved.

I am a respectable and professional individual.

I will continue to refrain from using inappropriate language and I will participate in training sessions.”

In addition to the above-quoted response, Warning submitted a memo in which she describes various behaviors of the paraprofessional who had reported her inappropriate language. It appears Warning believed that the paraprofessional reported her in retaliation for incidents that had occurred in the classroom between October and November of 2004.

In February 2005, Warning had her second classroom observation for that school year. This observation was conducted by Principal Runyan. Following the observation, Principal Runyan completed Warning’s evaluation, gave a copy to Warning, and scheduled a meeting for March 1, 2005, to review and discuss the evaluation with her. The evaluation that was given to Warning rated her “Unsatisfactory” in four of seven categories, giving her an overall rating of “Unsatisfactory.” In the commentary at the end of the evaluation, Principal Runyan wrote:

“Rachel, during the school day the students in your classroom need to be actively engaged in more instructional activities. From my observations there appears to be a lot of unengaged and misuse of instructional time. You’ve had several encounters over the last couple of years in reference to inappropriate communication with team members. Recommendations have been made from previous counseling sessions with Dr. Clasberry and me to address the inappropriate comment issues. As a supervisor of paraprofessionals it is your responsibility to maintain poise, tact and professionalism in both oral and written communication. Due to the overall summative rating of unsatisfactory, it is my recommendation to Dr. Pointer, Executive Director of SPEED, that you be placed on a plan to correct deficiencies

Footnotes

•

[4] to work on the four unsatisfactory domains in this evaluation. Please find attached a corrective deficiency plan. Immediately upon receipt and review of the plan, corrective actions must take place by May 1, 2005, or recommendation for your termination will be presented to Dr. Pointer.”

At the scheduled March 1, 2005, meeting, Principal Runyan planned to review the evaluation with Warning and discuss with her the “Corrective Action Plan” that he developed. The plan identified two main areas of concern regarding Warning’s performance: her communication with classroom support staff and her “instructional presentation.” The plan indicated that Warning’s classroom presentation lacked “consistency, student engagement, and fails to meet the standards and expectations of best practice approaches within the identified group of students.” The plan indicated that Runyan and Warning would meet biweekly for remediation and, initially, required Warning to complete two tasks: (1) utilize a resource guide and certain identified strategies (previously presented to her by Principal Runyan) to develop and put into practice a plan to improve communication with staff; provide evidence that team meetings are being conducted and of any other methods used to accomplish the goal; (2) produce evidence of weekly lesson plans and themes, documenting the amount of time each student is engaged in “standard-based instruction.”

For the March 1, 2005, evaluation conference, Warning brought with her a union representative, Beth Wierzbicki. Rather than discuss the evaluation, Warning and Beth took this opportunity to argue with Runyan about the evaluation form, itself. They insisted that Runyan was required to rate each of the subcategories contained within the main evaluation domains. Runyan, however, asserted that the collective-bargaining agreement did not require him to rate the individual subcategories and that he would not do so since the evaluation clearly indicated the areas of concern regarding Warning’s deficiencies.

At the close of this meeting, Principal Runyan told Beth that her services would no longer be necessary at subsequent remediation meetings. Warning objected and Beth asserted the position that Warning was entitled to union representation because Warning’s job was on the line. Principal Runyan, however, expressed his belief that representation was neither necessary nor required at performance-based meetings.

The next scheduled meeting between Warning and Principal Runyan was set for March 4, 2005. Beth accompanied Warning and, according to notes Beth took, they again spent much of the time during this second meeting requesting additional clarification as to the specific performance objectives in which Warning was rated unsatisfactorily. Beth’s notes indicated that she and Warning debated with Runyan on the requirements of the Illinois Learning Standards. Also, Warning tried to demonstrate to Principal Runyan how her lesson plans were based on the Learning Standards, as well as her students’ IEPs (Individual Education Plans). Beth noted that, at one point during the meeting, Principal Runyan received a phone call. Beth then directed Warning to retrieve her lesson plans and the Illinois Assessment Book from her classroom. Upon her return, Beth and Warning debated further with Principal Runyan over the application of the learning standards. Warning also tried to compare herself to other teachers, asserting that she had spoken to other teachers at the school and, in her opinion, they were not using the learning standards she was now being required to implement. When this happened, Principal Runyan complained that the remediation process was becoming much too cumbersome and that Beth should not be present at future meetings. Runyan believed that with Beth present the focus remained on the evaluation procedure and general standards, preventing them from working on Warning’s personal corrective action plan. Principal Runyan told Warning that he just wanted her to complete the corrective action tasks that he had assigned her.

Sometime after the March 4, 2005, meeting, Principal Runyan ran into Warning in the hall. He asked to meet with her briefly and Warning agreed and they went to Runyan’s office. There, Principal Runyan tried to explain to Warning why he was not going to allow Beth to be a part of the remediation meetings anymore. Warning, however, said she would refuse to meet without representation and began to read from her union card. Principal Runyan became upset, jumped up from his chair and, in a loud voice, said, “I don’t care what the card says.” Warning responded that she did not have to take this treatment and walked out of the meeting.

On March 9, 2005, Principal Runyan visited Beth’s classroom and asked to speak with her. He told Beth that he did not hold anything against her personally, nor was he against the union, but that he had discussed the situation with Dr. Pointer, executive director of SPEED, and they had agreed that union representation was not appropriate at Warning’s remediation meetings. Beth disagreed and asserted the position that, because Warning might be subject to dismissal, she had a right to union representation. Beth admitted that Principal Runyan acted professionally when speaking with her. He also conceded that, as a new principal, he was somewhat unfamiliar with the rules concerning the right to union representation. Nevertheless, he maintained that union representation in this situation was neither appropriate nor necessary.

After this meeting, Beth wrote a memo to Principal Runyan, dated March 17, 2005, asserting the position that Warning was entitled, by the collective-bargaining agreement and her Weingarten rights, to have representation of her choice, if she requests it. The next day, March 18, 2005, Beth accompanied Warning to her next scheduled remediation meeting. When they arrived at Principal Runyan’s office they saw that Dr. Pointer was present. Dr. Pointer was quite upset and began the meeting by advising Beth that she would no longer be permitted to attend Warning’s remediation meetings. According to notes Beth took of the meeting, Warning became emotional and expressed her belief that “things were very negative against her” and that she felt she needed the support of Beth’s representation because she really felt like she was going to be terminated, and she still did not understand why because her performance had not been substandard prior to that.

As the meeting progressed, Dr. Pointer countermanded herself and agreed to permit Beth to attend Warning’s remediation meetings. However, this permission was contingent on Beth’s promise to act as a mere observer during the meetings. In other words, Beth was not permitted to speak or participate in the meetings, communicate with Warning during the meeting, or answer any questions directed at Warning. In fact, Beth was told that if she tried to participate in the meeting in any way, Principal Runyan was instructed to have her removed from the meeting.

On March 22, 2005, Principal Runyan held another remediation meeting to make up for the March 18 meeting that had been taken up discussing Beth’s participation. Beth attended this meeting and, according to her notes, Principal Runyan used this time to review Warning’s lesson plans with her. Runyan also discussed with Warning the methods she used in her classroom, as well as her communication with staff and assignment of duties to peer professionals. According to Beth, Principal Runyan appeared to be satisfied with Warning’s lesson plans and the information she provided to him. He then gave Warning a reading assignment — to read a chapter from a book that Principal Runyan had shown Warning. When Principal Runyan indicated that he would need the book back, Warning immediately became upset and demanded to know how she was going to read a 53-page chapter without access to the book. Beth noted that she interceded, suggesting that Warning photocopy the chapter.

Beth also reported that during the March 22, 2005, meeting, Principal Runyan broached the subject of Warning’s past difficulties in “getting along with people.” Immediately, Warning became defensive and wanted to know specifics, stating that she was “not familiar with what he was talking about.” When Principal Runyan mentioned a particular situation involving a parent, Warning denied there had been a problem, explaining that the parent did not speak English and, for that reason, she told the parent to speak with the social worker, who spoke Spanish.

Because of notice requirements under the collective-bargaining agreement, Warning was given a “non-renewal letter” dated March 24, 2005, informing her that her teaching contract would not be renewed for the following year due to performance reasons. However, Warning was also advised by Dr. Pointer that her contract might still be renewed if she successfully completed the corrective action plan.

On March 31, 2005, Principal Runyan sent a memo to Warning indicating, once again, that Beth would not be permitted to attend her corrective action plan meetings. In a letter to IEA UniServ Director Janet Zitzer, dated April 6, 2005, Dr. Pointer explained the reason for Principal Runyan’s renewed decision to exclude Beth— although Beth had previously agreed to act as a mere observer at the remediation meetings, Beth had, once again, begun to “insert” herself into the discussions “in a different way.” Specifically, because Beth had agreed not to speak at the meetings, she began passing notes back and forth with Warning. Also, using her body language — such as nodding and shaking her head — she made her feelings known to Warning. Dr. Pointer wrote in the letter that she considered Beth’s behavior to be “insubordinate,” “manipulative,” and “unacceptable.” After meeting with Warning and Beth one final time on April 21, 2005, Principal Runyan prepared a written evaluation dated April 22, 2005, informing Warning that he was recommending that the District not renew her contract. He noted that, although she had made “demonstrated improvement” in the area of instruction, there had been little growth in the area of communication. Principal Runyan wrote:

“During the time span you were working on the plan to correct deficiencies, more concerns were raised due to your lack of ability to communicate. You made the choice to be late for several scheduled meetings and failed to participate in a process that enabled you and me to communicate freely. Your actions have created barriers in our ability to effectively communicate. The process was tension driven and failed to honestly develop to a relationship to move forward in this area.

During the planning time I had to present requests to you in verbal and written format. You failed to consistently provide prepared evidence when requested and seemed inadequately prepared for our meetings. We were unable to get into open dialog during our meeting time. During the conversations you failed to see your role in the breakdown of communications. The corrective process became cumbersome and chaotic due to the choices you made.”

Having determined that Warning’s overall performance remained unsatisfactory, Warning was advised on April 28, 2005, that her teaching contract would terminate at the end of that school year.

In August 2005, Warning and the SPEED Education Association, IEA-NEA (the Association), filed an unfair labor practice charge with the IELRB against SPEED District 802. The complaint alleged that the District dismissed Warning “in retaliation for Warning’s insistence on having a fellow employee and Union representative assist her in defending herself against the possibility of adverse employment actions.” In a subsequent “Position Statement,” the plaintiffs elaborated, stating: (1) Warning had insisted upon having union representation at all of her meetings with the administration of SPEED District 802 from December 2004 through the spring of 2005 and this was a protected activity because she had the right to union representation at these meetings pursuant to both the Illinois Educational Labor Relations Act and the collective-bargaining agreement, (2) that the District was aware that Warning was asserting a right to union representation at the meetings she had with the administration, and (3) that the District was hostile toward Warning because she exercised her rights and, ultimately, took adverse action against her, i.e., did not renew her contract, because she exercised her right to have union representation accompany her to her remediation meetings with the District.

The parties presented witness testimony and other evidence at a hearing held before an Administrative Law Judge (ALJ) on November 28, 2006. In April 2007, the ALJ issued a recommended order, finding that the District had violated section 14(a)(3) and, derivatively, section 14(a)(1), of the Act (115 ILCS 5/14(a)(l), (a)(3) (West 2004)). As a result, the ALJ recommended that Warning be reinstated to her teaching position and awarded back pay. Also, because the dismissal had come after Warning’s fourth probationary year, the ALJ recommended that she be granted tenure.

The IELRB adopted the findings and recommendations of the ALJ. Two members of the Board, however, did not agree that awarding Warning tenure was a proper remedy.

The District then appealed the decision of the IELRB to the appellate court. In a divided opinion, the appellate court affirmed. 392 Ill. App. 3d 628. Justice Garcia dissented. He believed that Warning had no right to union representation at her postevaluation meetings and, thus, he did not believe the evidence supported a finding that the District discriminated against Warning as a result of union activity. But, even if the evidence did support a finding that the District had violated the Act, Justice Garcia believed that granting tenure was an inappropriate remedy.

The District filed a timely petition for leave to appeal with this court pursuant to Supreme Court Rule 315(b), and we granted the petition. In addition, the Illinois Association of School Boards and the Illinois Association of School Administrators were permitted to file an amicus brief in support of SPEED District 802, and the Illinois Federation of Teachers was permitted to file an amicus brief in support of Warning and the Association.

ANALYSIS

Standard of Review

What we must decide in this case is whether the IELRB correctly determined that SPEED District 802 violated section 14(a)(3) and, derivatively, section 14(a)(1) of the Illinois Educational Labor Relations Act (the Act), when it did not renew the teaching contract of Warning, a nontenured, probationary teacher. The standards by which we review the findings and decision of the IELRB are not in dispute. The parties agree that judicial review of an IELRB decision 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. City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 204 (1998). On issues of law, we review the Board’s findings de novo; while findings on issues of fact are deemed prima facie correct unless they

are against the manifest weight of the evidence. City of Belvidere, 181 Ill. 2d at 204-05. Further, as we stated in Board of Trustees of the University of Illinois v. Illinois Labor Relations Board, 224 Ill. 2d 88, 97-98 (2007):

“[T]he clearly erroneous standard of review is proper when reviewing a decision of the IELRB or the ILRB because the decision represents a mixed question of fact and law. [Citation.] An agency decision will be reversed because it is clearly erroneous only if the reviewing court, based on the entirety of the record, is “ ‘left with the definite and firm conviction that a mistake has been committed.’ ” [Citation.] While this standard is highly deferential, it does not relegate judicial review to mere blind deference of an agency’s order.”

Sections 14(a)(1) and 14(a)(3) of the Act

In the case at bar, the Board decided that the District violated section 14(a)(3) and, derivatively, section 14(a)(1) of the Act (115 ILCS 5/14(a)(l), (a)(3) (West 2004)). Section 14, entitled “Unfair Labor Practices,” provides in pertinent part:

“(a) Educational employers, their agents or representatives are prohibited from:

(1) Interfering, restraining or coercing employees in the exercise of the rights guaranteed under this Act.

(3) Discriminating in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any employee organization.” 115 ILCS 5/14(a)(l), (a)(3) (West 2004).

It has been held that section 14(a)(1) refers to adverse action taken against an employee as a result of any protected concerted activity, while section 14(a)(3) refers specifically to discrimination based on union activity. See Bloom Township High School District 206 v. Illinois Educational Labor Relations Board, 312 Ill. App. 3d 943, 957 (2000). Where, as here, an alleged violation of sections 14(a)(1) and 14(a)(3) stems from the same conduct, the section 14(a)(1) violation is said to be derivative of the section 14(a)(3) violation. Bloom Township, 312 Ill. App. 3d at 957. In such cases, the test to be applied is the one used to determine whether a section 14(a)(3) violation occurred. Bloom Township, 312 Ill. App. 3d at 957. A prima facie case of a section 14(a)(3) violation requires proof that the employee was engaged in activity protected by section 14(a)(3); that the District was aware of that activity; and that the employee was discharged for engaging in that protected (union) activity. Board of Education, City of Peoria School District No. 150 v. Illinois Educational Labor Relations Board, 318 Ill. App. 3d 144, 150 (2000). The third part of the test is established if the employee’s protected activity was a substantial or motivating factor for the discharge or other adverse action taken against the employee. Hardin County Education Ass’n v. Illinois Educational Labor Relations Board, 174 Ill. App. 3d 168, 174 (1988). Since motive is a question of fact, a Board’s finding as to motive can only be set aside if it is against the manifest weight of the evidence. City of Burbank v. Illinois State Labor Relations Board, 128 Ill. 2d 335, 345 (1989); Bloom Township, 312 Ill. App. 3d at 957. However, even if a prima facie showing has been made, there can be no finding that an unfair labor practice occurred if the employer can demonstrate, by a preponderance of the evidence, that the adverse action would have occurred notwithstanding the protected activity. City of Burbank, 128 Ill. 2d at 346; Board of Education, City of Peoria School District No. 150, 318 Ill. App. 3d at 150.

In the case at bar, the District challenges the Board’s decision that it committed an unfair labor practice on two grounds. First, the District contends that the first prong of the test used to prove a section 14(a)(3) violation was not satisfied. The District argues that Warning was not engaged in a protected union activity when she insisted on having representation at her remediation meetings. Second, the District contends that, even if a prima facie case was made, the manifest weight of the evidence supports a finding that Warning’s contract would not have been renewed in any event, due to deficiencies in her teaching and communication skills. Accordingly, the District asks us to find that the Board’s decision, finding that the District committed an unfair labor practice, is clearly erroneous.

Protected Activity

We first consider the District’s contention that the Board erred when it found that Warning made out a prima facie case of a section 14(a)(3) unfair labor practice. As noted above, for the Board to have found that Warning demonstrated a prima facie case of a section 14(a)(3) violation and, derivatively, a section 14(a)(1) violation, the Board had to find that Warning satisfied her initial burden of proving that she had been discriminated against (i.e., discharged) because she had engaged in an activity protected by section 14(a)(3) (i.e., union activity).

Warning and the Association alleged in the complaint against the District that Warning was engaged in a protected activity when she insisted on union representation at her remediation meetings. Warning and the Association contended that Warning was entitled to union representation by both the Labor Act and the collective-bargaining agreement between the Association and SPEED District 802. Before the ALJ, they pointed to section 3 — 10 of the collective-bargaining agreement, which provides:

“A bargaining unit member shall be entitled to have present a representative of the Association during any meeting which leads to disciplinary action.”

They argued that, because Warning’s remediation meetings with Runyan had the potential of resulting in adverse action, i.e., Warning’s dismissal, she had the right to representation under the agreement.

The District challenged this allegation, noting that section 3 — 10 of the collective-bargaining agreement further provides that “disciplinary action is not performance based.” Thus, the District maintained that, because remediation meetings are performance based, the collective-bargaining agreement did not afford Warning a right to union representation and, therefore, there was no evidence that Warning suffered any adverse action as a result of her participation in a protected union activity.

In resolving this controversy, the ALJ agreed that section 3 — 10 of the collective-bargaining agreement defined “disciplinary action” as “not performance based.” Nevertheless, the ALJ dismissed the District’s argument in one sentence, stating: “There is no evidence, however, that the contractual provision was intended to waive a non-tenured teacher’s Weingarten rights to union representation during an investigatory conference.”

In National Labor Relations Board v. Weingarten, 420 U.S. 251 (1975), it was held that an employer violated section 8(a)(1) of the NLRA — the model for our section 14(a)(1) — when it denied an employee’s request for union representation at an “investigatory interview” which the employee reasonably believed would result in discipline. The ALJ found that remediation meetings are “investigatory,” relying on Summit Hill School District 161, 4 Pub. Employee Rep. (Ill.) par. 1009, No. 86 — CA—0090—C (IELRB December 1, 1987).

It is true that, in Summit Hill, the IELRB found that remediation meetings were “investigatory.” However, that is only one of the IELRB’s findings in that case, which the ALJ selectively adopted. Summit Hill involved a tenured teacher who was denied union representation at postobservation (remediation) meetings held during the one-year remediation period required for tenured teachers by the School Code. When asked to determine whether this denial of representation was an unfair labor practice, the IELRB in Summit Hill held:

“Under the Education Reform Act, the remediation process may lead to one of two results: successful remediation or discharge. One purpose of the process is to alert the teacher to perceived problems and provide the teacher with a one-year opportunity to improve. *** However, discipline may be imposed at the end of the one-year remediation period if the teacher has not received a ‘satisfactory’ or better rating. Ill. Rev. Stat. Ch. 122, pars. 24A — 5(i) and (j). In other words, attempted remediation is a required preliminary step for the alternative result under the Education Reform Act, dismissal. If improvement is not shown, the employee may expect the commencement of the dismissal process, during which the observations of a teacher undergoing remediation and the reports of such observations may very well be used as ‘evidence’ to support the district’s case for dismissal. Thus, a teacher may reasonably fear that that [sic] at least some, if not all, post-observation conferences may ultimately lead to discharge.

Nevertheless, we conclude that the right to have union representation as a matter of law does not attach to post-observation conferences ***.” (Emphasis added.) 4 Pub. Employee Rep. (Ill.) par. 1009, at IX — 32.

The IELRB then explained that educational labor laws in Illinois do not provide for union representation in remediation. One reason is that postobservation conferences are required by the State Board of Education and, therefore, “an employer is not free, as in the private sector or the usual investigatory interview, to discontinue a postobservation conference and proceed to obtain information from other sources.” Furthermore, “discontinuance would also undermine one of the goals of the conference which is to discuss and correct deficiencies.” Accordingly, the IELRB concluded in Summit Hill that, since the law did not afford a tenured teacher the right to union representation at postobservation conferences, if such a right was to exist, it would have to be contained in the collective-bargaining agreement, but was not.

In the present case, the ALJ found that the Board’s holding in Summit Hill did not extend to nontenured teachers. Its rationale for this determination was that Warning’s remediation period was much shorter, lasting only from March 1 to May 1, 2005, and that “the union representative whom Warning repeatedly requested *** was her representative to protect her interests against unjust dismissal and, similarly, the interests of all nontenured teachers under remediation.” The ALJ then recommended that the Board rule that the District violated section 14(a)(3) of the Act.

The Board subsequently adopted the ALJ’s recommendation. In its written order, the Board, addressing the contested issue of whether Warning had engaged in protected activity, stated:

“Here, Warning engaged in union activity when she invoked representation by Association grievance representative Beth Wierzbicki. In Chicago Board of Education, 22 PERI 143, Case No. 2004 — CA—0061—C (IELRB, April 11, 2006), the Illinois Educational Labor Relations Board (‘IELRB’) ruled that an employee engaged in union activity when he sought the union’s assistance in disciplinary matters and when union representatives accompanied him to pre-disciplinary meetings.”

However, in the cases cited by the Board, the employees who were found to have engaged in union activity had a right to union representation. The Board never addressed the District’s claim that Warning was not engaged in protected activity because she was not entitled to union representation at her remediation meetings. Instead, the Board stated: “It is unnecessary for us to decide whether denying Warning union representation at the post-evaluation meetings would have been an unfair labor practice under Summit Hill School District 161, A PERI 1009, Case No. 86 — CA—0090—C (IELRB, December 1, 1987) and NLRB v. Weingarten, 420 U.S. 251 (1975).” The Board reasoned that this was so because “in this case it is not alleged that the District violated the Act by denying Warning union representation.”

The District timely appealed the Board’s ruling to the appellate court, again arguing that, to prove an unfair labor practice under section 14(a)(3), it was imperative that Warning show that she had engaged in a protected activity. The District further argued that the Board was clearly erroneous in finding that Warning engaged in a protected activity because Warning did not have the right to union representation at her postobservation remediation meetings. The appellate court disagreed with the District, stating:

“We agree with the holding in Summit Hill School District 161, 4 Pub. Employee Rep. (Ill.) par. 1009 n.7, No. 86 — CA—0090—C, at IX — 33 (IELRB December 1, 1987) (hereinafter 4 Pub. Employee Rep. (111.) par. 1009), where the Board determined that since postobservation remedial meetings can sometimes result in a teacher’s discharge, the suggestion that such meetings were not ‘investigatory’ must be rejected. We agree with the Board that Warning was engaged in a protected activity when she requested union representation during her remedial meetings with Runyan. See, e.g., Georgetown-Ridge Farm Community Unit School District No. 4 v. Illinois Educational Labor Relations Board, 239 Ill. App. 3d 428, 464, 606 N.E.2d 667 (1992) (employee engaged in protected activity by seeking the assistance of union representative concerning reduction of hours and filing of complaint); Abuzir, 22 Pub. Employee Rep. (Ill.) par. 143, at 553 (employee engaged in protected activity when union representative accompanied him to prediseiplinary meetings).” 392 Ill. App. 3d at 636-37.

This is the sum total of the discussion on the District’s main claim on appeal. Justice Garcia dissented, however, stating, “Warning’s desire to have union representation at her postevaluation meetings [could not be transformed] into union activity when no such right exists under the collective bargaining agreement between Speed District 802 and SPEED Education Association.” 392 Ill. App. 3d at 642 (Garcia, J., dissenting). Justice Garcia also believed that the Board had improperly sidestepped this issue, stating:

“Either Ms. Warning had the right to have union representation at the postevaluation meetings or she did not. If she did not, Speed District 802 was well within its ‘supervisory authority’ to restrict union representation at the postevaluation meetings to a nonactive role.” 392 Ill. App. 3d at 641 (Garcia, J., dissenting).

Now, before this court, the District asks us to find that the Board and the appellate court improperly determined that Warning engaged in a protected activity when she insisted on having union representation at her remediation meetings. The District maintains — as it has from the beginning — that Warning had no right to union representation at her postobservation conference and remediation meetings with Principal Runyan. Accordingly, the District contends that the Board’s decision that it committed an unfair labor practice when it dismissed Warning is clearly erroneous. We agree.

Warning, the Association and the Board continue to maintain that Warning engaged in protected union activity when she asked for and received union representation at her evaluation conference and postobservation remediation meetings. They contend, “there is no issue here of whether Warning had a right to union representation during the meetings; the Board did not make, nor did it have to make, that determination.” In their view, “the District’s right-based argument comes too late because the District failed to enforce its view that Warning did not have a right to representation.” Based on this rationale, they claim the District’s rights-based assertion is “irrelevant.” They contend “the issue here is not whether Warning had the right to Union representation, because it was never denied her, or whether that right was waived by contract, but rather, once she engaged Union representation during the meetings, the District retaliated against her and discharged her for doing so.”

We reject the argument that if the District did not believe that Warning was entitled to union representation at her remediation meetings, it should have refused to meet with her under those conditions and then sought a ruling on whether their action was an unfair labor practice. As explained in Summit Hill, imposing such a requirement is impractical, if not impossible. The District, unlike other employers, does not have the discretion to discontinue remediation and attempt to obtain information from other sources. Warning was a fourth-year probationary teacher and under section 3 — 9 of the collective-bargaining agreement she could not be dismissed for performance reasons without the District establishing at least one documented attempt to correct deficiencies. Thus, the District was not free to discontinue remediation.

Further, it is counterintuitive — particularly with regard to nontenured teachers where the remediation period is brief — to require the District to discontinue corrective meetings and seek a ruling on whether a teacher has the right to union representation. As stated in Summit Hill, such a requirement would undermine the goal of remediation conferences, which is to correct deficiencies.

We believe the District acted reasonably in this situation. It permitted Warning to have a union representative accompany her to her remediation meetings despite its belief that she was not entitled to that right.⁵ Also, we agree with Justice Garcia that Warning’s insistence on having union representation at her remediation meetings did not automatically transform this situation into a protected union activity. An employee engages in protected union activity only when the employee’s actions invoke a right under the law or the collective-bargaining agreement. As Warning and the Association concede in their brief, the United States Supreme Court concluded in National Labor Relations Board v. City Disposal Systems, Inc., 465 U.S. 822 (1984), that “employees engage in protected activity when invoking contractual rights because that activity is a direct extension of collective bargaining.”

In the case at bar, Warning’s proof that she engaged in a protected union activity is lacking because she has provided no evidence that she was entitled, either by law or contract, to union representation at remediation meetings. As stated in Summit Hill, even though remediation meetings are “investigatory,” the right to union representation does not attach by law and, to exist, must be contracted for through collective bargaining. The collective-bargaining agreement here does not explicitly give employees the right to union representation at remediation meetings. Rather, our reading of the contract indicates to us that the right to union representation does not attach to postobservation conferences and remediation, where the possible “disciplinary action” the employee faces is performance based. We reach this conclusion based on section 3 — 8(F) of the collective-bargaining agreement, which specifically provides, “Evaluative conclusions and remediation decisions are made in the sole discretion of the evaluating supervisor and are non-grievable and nonarbitrable.” This being so, a union representative would have no official role to play at postobservation conferences and remediation meetings.

We conclude, therefore, that Warning failed to prove that she was entitled to union representation. And if Warning did not have a right to union representation, then Warning and the Association failed to prove that Warning was engaged in union activity when she insisted on having union representation at her evaluation conference and remediation meetings and when she chose to follow her representative’s lead in taking an assertive and confrontational stance with regard to her evaluation and the administration’s attempts to provide corrective instruction.

Without a showing of protected activity, there can be no finding that the District discriminated against Warning for engaging in protected activity. We find, therefore, that Warning and the Association failed to prove the District violated section 14(a)(3) of the Act. As a result, we find the Board’s decision, that the District committed an unfair labor practice when it failed to renew Warning’s teaching contract, is clearly erroneous.

In light of our conclusion that the District’s actions did not constitute an unfair labor practice, we need not consider whether reinstating Warning to a tenured position was an appropriate remedy.

CONCLUSION

For all the reasons stated above, we reverse the judgment of the appellate court and set aside the decision of the IELRB that SPEED District 802 committed an unfair labor practice when it failed to renew Rachel Warning’s teaching contract. The cause is remanded to the Board for further proceedings consistent with this opinion.

Appellate court judgment reversed; Illinois Educational Labor Relations

Board decision set aside; cause remanded.

1

The rating system used by the school district has only three classifications: “Excellent,” “Standard,” and “Unsatisfactory.” A “Standard” rating means the teacher is performing satisfactorily.

2

Section 34 — 84 of the School Code (105 ILCS 5/34 — 84 (West 2004)) provides that permanent appointment of a full-time teacher “shall be made for merit only” and, after January 1, 1998, only after “satisfactory service for a probationary period of *** 4 years.” The Code provision also states that teachers, once permanent, shall be subject to removal for cause, but that “during [this probationary] period the board may dismiss or discharge any such probationary employee upon the recommendation, accompanied by the written reasons therefor, of the general superintendent of schools.”

3

There is no evidence in the personnel file regarding the previous incident of improper language referred to here.

4The collective-bargaining agreement between the union and the District prohibits the District from dismissing a third- or fourth-year probationary teacher for performance reasons “without at least one documented attempt to correct deficiencies.”