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Illinois Supreme Court Rules Educational Employers Are Not Required to Arbitrate “Do Not Hire” Designation

K-12 Education Publications

When the Chicago Board of Education refused to arbitrate grievances concerning its “do not hire” policy, it did not violate the Illinois Educational Labor Relations Act according to the Illinois Supreme Court. This case arises out of a June 2010 policy in which the Board designated as ineligible for rehire any probationary appointed teacher (PAT) who was either nonrenewed twice or who had received an unsatisfactory performance rating. The Board implemented this policy by placing a “do not hire” designation in the PATs’ personnel files.

The Chicago Teachers Union filed grievances and demanded arbitration on behalf of all PATs as well as individual PATs who received the “do not hire” designation. The Union sought reinstatement and requested that the Board cease placing “do not hire” designations in the personnel files of PATs who were not terminated for cause. The Board refused to arbitrate, arguing that hiring decisions are exclusive management rights. The Union filed an unfair labor practice charge with the IELRB, which found that the Board unlawfully refused to arbitrate the grievances. On appeal, the Illinois Appellate Court reversed the IELRB’s decision, and the parties appealed to the Illinois Supreme Court.

In a 6-1 ruling (Justice Kilbride dissenting), the Supreme Court found that the Board did not have a contractual or statutory duty to arbitrate the “do not hire” grievances. Despite a broadly worded definition of the term “grievance” in the parties’ collective bargaining agreement, the Court found that the “do not hire” grievances did not relate to employee terms and conditions of employment, but rather to the Board’s ability to hire, which is a matter of managerial policy and which was expressly excluded from the bargaining process under the parties’ management rights clause.

The Court also concluded that arbitration was statutorily prohibited. First, the Court determined that arbitration would violate the management rights provision set forth in Section 4 of the Illinois Educational Labor Relations Act, which expressly recognizes that educational employers are not required to bargain over matters of inherent managerial policy, including the selection and hiring of new employees. Second, the Court found that arbitration would violate several sections of the School Code, which grant the Board the exclusive power to terminate the employment of probationary teachers through nonrenewal—a discretionary power that the Court emphasized cannot be delegated to an arbitrator or otherwise limited by a collective bargaining agreement. In the Court’s view, the “do not hire” grievances impermissibly attempted to force the Board to hire probationary teachers and thus conflicted with the Board’s statutory hiring authority. Accordingly, the Court held that the grievances were not arbitrable under either the parties’ collective bargaining agreement or Illinois law.

The quick takeaway for educational employers regarding the Court’s decision is two-fold: it underscores the need for contract provisions that narrowly define the term “grievance” and broadly and explicitly recognize management rights, and it confirms that hiring decisions and decisions to non-renew probationary employees cannot be delegated to an arbitrator.