Chicago Teachers Union -ULP Coerced Waivers Position Filed

8/4/2019 Chicago Teachers Union -ULP Coerced Waivers Position Filed

1/28

STATE OF ILLINOISBEFORE THE ILLINOIS EDUCATIONAL LABOR RELATIONS BOARDCHICAGO TEACHERS UNION, 1

1Charging Party, )1v. )

)CHICAGO BOARD OF EDUCATION, ))Respondent Employer. )

CHARGING PARTY'S POSITION STATEMENTAND REQUEST FOR INJUNCTIVE RELIEF

Because the Chicago Teachers Union ("CTU") labor contract with the Chicago Board ofEducation ("CBE") defines the length of each school day, the CBE cannot lengthen the schoolday without the CTU's consent to reopen the agreement. When the CTU rebuffed the CBE'srecent effort to do so, the CBE simply bypassed the Union and dealt directly with teachers atneighborhood elementary schools. It negotiated changes to both length of work day and

compensation directly with teachers. It offered them inducements, threatened them with layoffs,and monitored their private communications with the Union, among other things, in connectionwith securing their votes to waive labor contract rights at those schools. It distorted beyondrecognition a contract provision used for limited, individual school-based waivers of contractterms by failing to follow clear procedural requirements, using the waivers to undermine basicnegotiated terms and conditions, and stacking contract waiver votes with non-members whowere ineligible to vote. It has also refused to respond to CTU requests for information about itsconduct. Its actions violate Sections 14(a)(l), (3) and (5) of the Act,

By imposing longer school days on teachers, altering their negotiated compensation, andbypassing the CTU to deal directly with teachers, the CBE has irreparably harmed both the CTU


2/28

and its members, and preliminary injunctive relief should be obtained under Section 16(d) of theAct to avoid further harm.

Factual BackgroundThe CBE administers the Chicago public school system. Of its approximately 40,000

employees, approximately 32,000 are represented by the CTU.The CBE and the CTU are parties to a collective bargaining agreement ("CBA") for the

period of July 1,2007 through June 30,2012 (the relevant excerpts are attached hereto as ExhibitA; all exhibits are in the attached exhibit binder). The CBA clearly and unambiguously sets the

length of work days in elementary and middle schools. Article 4 Sec. 4-6 provides that, since the2004-05 school year, "the regular school day for elementary school teachers shall not exceedseven hours with a continuous duty-free lunch period of forty-five minutes" (Exhibit A at 17). 'Article 5 Sec. 5-8 sets the same hours for teachers in middle schools (Exhibit A at 22).

Ad-, of colxse, the CBP. clear!y md una7ibig~~usiyets the compensation to be paid toteachers, as set forth in CBA Exhibit A, which sets the "salary schedules and othercompensation" for all CTU-represented employees (ExhibitA at 121-97).

' Sec. 4-6 allows the parties to "change the beginning and ending times" of the school dayprovided a majority of classroom teachers vote to approve the change. This provision allows forchanges in the start time of each school day (and a corresponding change in the end time), butdoes not allow any change in the length of the school day, which is unambiguously capped at 7hours.


3/28

Appendix C of the CBAAppendix C of the CBA creates procedures by which an individual school can conduct a

vote among Union members assigned to that school to implement a change in terms andconditions requiring a waiver of CBA provisions. Appendix C was first placed in the collectivebargaining agreement between the CTU and the CBE in the 1989-90 agreement, and someversion of it has remained in each collective bargaining agreement since then. Appendix C'spurpose and consistent use over the 20+ years of its existence is to allow school staff inindividual schools to address unique concerns within a school, but not to eliminate or remove

employees' rights under the CBA, including hours of work and compensation. It allows a voteon a proposal that requires a waiver of CBA provisions to be implemented. Appendix C hasnever been used to effect a change on a district-, area- or city-wide basis, nor has it ever beenused to alter the negotiated compensation paid to teachers. These latter matters have always beaddressed sole!y beheen the CBEand the CCTU.

Appendix C imposes very clear procedural requirements for such waivers. Theserequirements include:. A secret ballot vote must be conducted (72). The voting must be limited to Union members (7 2). The procedures for conducting the vote must be approved by both the principal

and the CTU schooi delegate (13). A majority of Union members voting must approve the waiver (7 4)(Exhibit A at 203)


4/28

CBE's Recluest that the CTU reopen the agreem ent to extend 1enp;th of school dayBy email of August 24, 2011, The CBE through its attorney James Franczek formally

proposed to CTU that the parties modify the CBA by extending the length of the school day atelementary schools and middle schools by 90 minutes, to establish a school year of 180 studentattendance days (by eliminating holidays, teacher institute days and professional developmentdays), and increasing teacher pay by 2 percent. (A copy of that email with attachment is attachedhereto as Exhibit B.)

By letter of August 25, 2011, the CTU, through its counsel Robert Bloch, responded tosay, among other things, that the CTU declined to consider any modifications to its current laboragreement. (A copy of that letter is attached hereto as Exhibit c . ) ~

CBE's D irect Dealing with TeachersShort!y after the CTU dec!ined to reopen its labor ecniract, and v;ithout prior notice to,

discussion with or the consent of the CTU, the CBE bypassed the CTU to deal directly with theteachers in order to impose a 90-minute extension to the school day and to pay the teachers alump sum equal to 2% of their current average salary.

The CBE purported to impose these unilateral changes under cover of Appendix Cwaiver procedures, but its conduct so obviously violated the Appendix C procedures as to renderthem a sharr.. Further, the CBE refused to a!low for a free exercise of -mion member voting

Previously, the CBE on June 15,2011, purported to exercise its right under Article 47 Sec. 47-2.2 (Exhibit A) to deny teachers their negotiated 4% annual wage increase by declining to adopta resolution finding that there was a reasonable expectation that the CBE would be able to affordthe increase. (A true and correct copy of the resolution and the agenda showing that it was notadopted are attached as Exhibit D.) Thus, the effect of the CBE's proposal was to give back tothe teachers one-half of their negotiated wage increase in exchange for a 90-minute extension ofthe school day.


5/28

rights. To achieve its desired result, the CBE threatened and intimidated teachers in the votingprocess. To the CTU's knowledge, the CBE has attempted this end-run at STEM MagnetElementary ("STEM), Genevieve Melody Elementary School ("Melody"), Skinner NorthClassical School ("Skinner") and Laura S. Ward Elementary School ("Ward"). The CBE hasadmitted that it is attempting to get all elementary schools to institute a lengthened school day.

STEM Magnet ElementaryAt STEM, the school day ran from 8:45 a.m. to 2:45 p.m. On August 24, 2011, prior to

the start of the school year, STEM Principal Maria McManus told some of the incoming faculty,

including teacher Luke Albrecht, in informal conversation that she wanted to extend the schoolday by 90 minutes. Principal McManus said that the extra work time would be without pay, butpromised to make sure every teacher got a new iPad and an extra compensatory day off with payper quarter. Principal McManus said that the comp day would not show up on teachers'paychecks, but would be "unofficial." Principal McManus later clarified &at the comp daywould be paid by another staff member swiping the teacher as present on that day. PrincipalMcManus also said that, if the Union members agreed to the 90 minutes, then she could hireextra personnel in the form of teacher aides.

Albrecht told Principal McManus that, since this was a contract issue, the schoolprobably needed to follow a required processes that involved the CTU. Albrecht said that theparties needed to start by getting a school delegate, since it had none at the time, and said hewould contact the CTU and was willing to be delegate if so appointed.

Early in the morning on Friday, September 2, 2011, 17 teachers and a clerk met todiscuss the Principal McManus's proposal. Principal McManus told the faculty they would be


6/28

voting that afternoon at 1:00 p.m. She said that the teachers would get iPads, one comp day persemester, and a 2% of each teacher's salary as a one-time payout if the teachers voted yes.Albrecht stated in the meeting that the school did not yet have a delegate and that the electionneeded to wait until the school had a CTU delegate certified and sworn, and that the voting CTUmembers needed more time to discuss the issues.

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

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

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

At 1:00 p.m., the 17 staff members assembled to vote, including 10 teachers who hadsigned union membership applications but had not yet been formally considered for membershipin the CTU. Further, there was as yet no appointed CTU delegate at the school. Right before thevoting CTU members cast their ballots, Principal McManus told the voting CTU members allthat if they voted yes, they would be "the Mayor's pet school." The faculty did not discuss theactual proposal outside of Principal McManus' presence, and it was not presented until afterKugler left the school.


7/28

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

On September 3, 201 1, at 11:47 p.m., Albrect received an email the principal sent thefaculty, entitled "You Guys Are Awesome." (A copy of that email, with individual teachercontact information redacted, is attached hereto as Exhibit F.) That email advised teachers, "Ifyou should receive harassing telephone calls from the CTU, do not feel obliged to listen to orrespond to their accusations. Ifthey leave messages on your voicemail, save all messages."

On September 6, 2011, Principal McManus called a meeting with the staff after school.She said in that meeting that if the CTU is "harassing" teachers, teachers did nat have to ta!k tothe CTU, and that if the CTU leaves voice mails, teachers should keep copies "becausedowntown wants them."

On that same day, Albrecht asked McManus for a copy of the vote tally to send to theCTU. Principal McManus said that she did not want Albrecht to give the vote tally to the CTU,and that she would send the vote tally downtown.

The proposal passed by a vote of 13 - 4. (A true and correct copy of the vote tally isattached hereto as Exhibit G.) Thus, inclusion of the 10 non-members in the voting could haveaffected the results of the vote.


8/28

Genevieve Melody Elementary SchoolThe CBE also orchestrated an election at Genevieve Melody Elementruy School

("Melody"). On September 2, 201 1, Principal Nancy Hanks called a meeting of teachers to voteon whether to lengthen the school day. She said that the school would be facing a longer schoolin any case. She said that, if teachers approved the longer school day, the school would get$15,000.00 more per month, which Principal Hanks said would be used to hire another teacher,and each teacher would get $800.00 as a lump sum payment. Principal Hanks also suggestedthat the CBE, when deciding what schools to close, might not close Melody if the teachers voted

for a longer school day.Principal Hanks handed out ballots and left the room. There are 22 teachers at Melody.

16 voted for the longer school day and 4 voted against it.Skinner North Classical SchoolThe CBE also orchestrated an election at Skinner. On the morning of September 2, 2011,

Principal Ethan James Netterstrom placed ballots in teachers' mailboxes. At 10:OO a.m.,Principal Netterstrom asked teachers to come to the library for a meeting. In that meeting,Principal Netterstrom said that he wanted teachers to vote to extend the school day. PrincipalNetterstrom promised that Skinner would get $150,000.00 to "buy whatever we wanted for theschool" and a 2 percent raise. Principal Netterstrom gave the teachers an hour to vote on thematter and left the library.

Three teachers declined to vote, since they were not CTU members. The remainingteachers voted-the vote was a six-to-six tie. When Principal Netterstrom learned of thoseresults, he directed the three non-member teachers to vote and obtained a nine-to-six majority


9/28

supporting the longer school day. This nullified any secrecy to the vote, since it was clear whocast the deciding votes. Principal Netterstrom then instructed the office staff to turn away anyunion representatives that wish to talk to teachers unless the union representatives give 24 hoursnotice and get his permission to come.

Laura Ward Elementary SchoolAt around 730 a.m. September 7, 2011, Laura Ward Elementary School ("Ward")

Principal Hobbs called teachers in for an emergency meeting. Principal Hobbs said that shereceived instruction that the school needed to hold a vote on a longer school day. PrincipalHobbs passed around a school schedule showing the longer day. Principal Hobbs said that, ifteachers agree to the longer day, the school would get $150,000.00 (which Principal Hobbs saidshe would use for a new computer lab) and teachers would get 2% of their annual salary, paidout in a lump sum. Principal Hobbs said that if teachers do not agree to the longer day, then theschool might have to cut positions, starring with teachers with the lowest seniority. PrincipalHobbs said that teachers should mark on the schedules if they approve the change and return theschedules, so teachers returned the schedules.

Admission of City-WideEffortIn a press release on September 6, 2011 (a copy of which is attached hereto as Exhibit

H), the CBE admits that it is seeking that "all elementary schools [will] jump on board thelonger-school-day train." Further, the Sun-Times has reported that the CBE has requested that

principals respond to an emailed questionnaire about whether the teachers at their schools wouldagree to a longer school day. (A true and correct copy of that article is attached hereto as ExhibitI, see page 2.) While Appendix C's function is to allow for individual schools to tailor the CBA


10/28

to unique circumstances, the CBE is now using elections-styled as Appendix C elections butwithout any of the procedural protections--to obtain a city-wide change.

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

CTU's Information RequestsThe CTU has made two information requests in connection with the CBE's efforts to

obtain a longer school day by dealing directly with teachers.Robert Bloch's EmailOn September 2, 2011, the CTU's counsel Robert E. Block sen?an email to the CBE's

counsel, James Franczek, requesting: (1) identification of all schools where votes about thelengthened school day have been taken or will be taken in the future; (2) the precise propositionvoted on in each school; (3 ) information about the voting arrangements allegedly agreed upon bythe school delegate; and (4) information about any inducements offered to teachers to support thelengthened school day. (A copy of that email is attached hereto as Exhibit K.)

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


11/28

Karen Lewis's Letter

On September 6,201 1, CTU President Karen Lewis sent a letter to CBE Chief ExecutiveOfficer Jean-Claude Brizard requesting the name of every school where the CBE has conductedor attempted to conduct a waiver vote for a longer school day, every school where it intends toconduct a vote, the terms of the proposed waivers, all compensation and inducements offered toteachers to approve the waiver (including indirect inducements such as additional money for theentire school), the voting arrangements agreed by a certified CTU delegate, and the waiver votetotals. Lewis's letter also requested copies of all letters, memoranda and emails sent to every

teacher from Chicago Public Schools, Chicago Public Schools administrators, the CBE, orChicago Public Schools principals that relate to the waiver votes. (A copy of that letter isattached hereto as Exhibit M.)

Lewis's letter requested a response no later than noon on September 7, 2011, but, as ofthe Eling of this charge, the CBE has not responded to tkis i~Jomationequest.

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


12/28

ARGUMENT

In attempting this end-run around the CTU, the CBE has violated the IELRA in thefollowing ways:1. The CBE has violated Sections 14(a)(l) and (3) by unlawful intimidation and inducement

of teachers in order to secure their votes for a longer school day and in response toteachers' assertion of contractual rights.

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

3 . The CBE has violated Section 14(a)(l) and (5) by partially repudiating the parties' laborcontract.

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

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


13/28

I. The CBE Has Violated Section 14 (a)(l) and (3) of the Act byCoercing Emulovees to V ote for the Longer Schoo l Day.A. The CBE Has Interrogated Teachers.Around noon on September 2, 2011, Principal McManus asked employee Albrecht

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

B. The CBE Has Instructed Teachers to Report Private Com mun ications withthe CTU.

In Principal McManus's email of September 5, 2011 to teachers about the 90-minuteextension of the school day, she wrote: "If you should receive harassing telephone calls from theCUT, do not feel obliged to listen to or respond to their accusations. If they leave messages onyour voicemail, save all mess~ges"(Exhibit Ff. Principz! Mchhmus reiterated this inswrlciion onSeptember 6, 2011, instructing teachers that "downtown" wanted copies of CTUcommunicationswith teachers.

It is clearly established that instructing employees to report on their contacts with a unionis unlawful intimidation. Smith & Johnson Constr. Co., 324 NLRB 970, 983 (1997) (requiringemployees to report contacts with union unlawful); Brunswick Electric Membership Corn., 308NLRB 361, 372 (1992), enf d, 991 F.2d 790 (4th Cir. 1993); Meisner Electric, inc., 316 NLFS3597, 607 (1995), enf'd, 83 F.3d 436 (1 lth Cir. 1996); Arcata Grauhics/Fairfield, Inc., 304N.L.R.B. 541 (1991). Accordingly, the CBE has violated Section 14(a)(l) of the IELRA.


14/28

C. The CBE Has Threatened to Close Melody School If Its Teachers Reiected aLonger School Day

At Melody school, Principal Hanks also suggested that the CBE, when deciding whatschools to close, might not close Melody if the teachers voted for a longer school day. Anemployer's comments that connected employee exercise of protected rights with closure of theemployer's facilities constitute unlawful intimidation. Homer D. Bronson Co., 349 NLRB 512,513 (2007), enfd, 273 Fed. Appx. 32 (2d Cir. 2008). Accordingly, the CBE has violated Section14(a)(l) by threatening that it might close Melody school unless the CTU members vote toincrease the school day.

D. The CBE Has Banned Union Representatives.The CBE has further intimidated employees' protected rights by barring CTU

representatives from Skinner school. Principal Netterstrom has instructed Skinner staff to turnaway any union representatives that wish to talk to teachers unless the union representatives give24 hours notice and get his permission to come. Discriminatonly banning union representatives

unlawfully coerces employees. Downtown Hartford YMCA, 349 NLRB 960 (2007).Accordingly, the CBE has violated Section 14(a)(l) by banning the CTU from its Skinner.

E. The CBE Has Offered Inducements to Teachers.The CBE has offered inducements to teachers to get them to sign on to the CBE's

extended school day. Teachers at STEM were offered iPads, one comp day per semester, and a2% of each teacher's salary as a one-time payout. STEM Principal McManus also promised that,if the voting CTU members approved the longer school day, they would be "the Mayor's petschool." Teachers at Skinner were told that, if they approved the longer school day, the school


15/28

would get $150,000.00 to "buy whatever we wanted for the school" and the teachers would get a2 percent raise.

An employer's offer of benefits in exchange for employees' not exercising their protectedrights constitutes a violation of Section 14(a)(l). Saiaon Gourmet Restaurant. Inc., 353 NLRBNo. 110 at 2 (2009). Here, the CBE, at various schools, induced teachers to waive their rights toa school day of the length set forth in the CBA, and their rights under the CBA to an election inkeeping with the procedures established by Appendix C, in exchange for increased pay and otherbenefits. This violates Section 14(a)(l). Id.

11. The CBE Has Violated Section 14(a)(l) and (5) of the IELRA by Dealing Directlywith Teachers and Partiallv Repudiating the CBA.A. The CBE is Engaging In Direct Dealing with Employees.Employers must negotiate terms and conditions of employment with their employees'

designated collective bargaining representatives. As the court stated in Board of Educ. v.m,250 111. App. 3d 878, 883 (4th Dist. 1993):

To permit the employer to go behind the chosen bargaining agent and negotiatewith the employees individually, or with their committees, in spite of the fact thatthey had not revoked the agent's authority, would result in nothing butdisarrangement of the mechanism for negotiation created by the Act,disparagement of the services of the union, whether good or bad, and acute, if notendless, friction, which it is the avowed purpose of the Act to avoid-r mitigate.In these circumstances, for the respondent to deal directly with its employees wasto deny to the Union its statutory status and was, therefore, a rehsal to bargaincollectively.-d., citing, In re Medo Photo SUPP~Yow., 43NLRB 989,997-98 (1942).Having failed to obtain agreement from the CTU, the CBE decided that it would simply

bypass the CTU and attempt to obtain agreement directly from teachers. While the CBE has


16/28

styled its direct dealing campaign as Appendix C waiver votes, in fact it is no such thing,principally since Appendix C votes cannot be used to alter the wage terms of the CBA. Butfurther, at a minimum, the following aspects of a procedurally-proper Appendix C vote are notmet:1. There was no agreement on election procedures between the principal and the CTU

delegate; indeed, there was no CTU delegate at STEM.2. At Skinner school, the CBE not only allowed ineligible teachers who were not CTU

members to vote, but in fact ordered them to vote over their objections.3 . There was no secret ballot at Skinner school.

4. The CBE is attempting to implement a change to employee compensation and a city-wide change on a school-by-school basis, which is not the purpose of Appendix Celections.

5. Appendix C votes are being used to change compensation termsSince the CBE is using sham elections to change wages and has disregarded the

procedures applicable to Appendix C elections, it cannot justify its direct dealing as somehowpermitted by Appendix C. Rather, the this is nothing more than an attempt to bypass the CTUand obtain by supposed agreement of employees the changes to hours of work that the CBEdesires. The form of direct dealing is not determinative--"the violation lies in bypassing theexclusive representative[/" @. at 884 (emphasis in original).

B. Partial Repudiation of an Agreement Violates theDutv to Bargain.Since the CBE was unable to get the Union to agree to reopen the CBA, it unlawfully

induced teachers to vote to waive contract terms, the implementation of which is an unlawfulrepudiation of the agreement. While minor violations of a union contract might merely besubject to the grievance and arbitration process, "a party to an agreement violates its statutory

16


17/28

duty to bargain collectively by modifying the terms of such a contract, where those terms are ofsuch importance to the agreement that their unilateral modification would negate the verystatutory duty to bargain collectively." Chicago Board of Education, 7 PERI 1114 (IELRB1991). Thus, a contractual violation constitutes an unfair labor practice where is "in reality abasic repudiation of the bargaining relationship." Id., citing, Oak Cliff-Golman BakingCompany, 207 NLRB 1063, 1064 (1973), enfd 505 F.2d 1302 (5th Cir. 1974), cert. denied,423U.S .826 (1975).

Here, the CBE is repudiating the most basic terms of a collective bargaining agreement:

hours and pay. Further, by the CBE's direct dealing through phony Appendix C votes repudiatesthe very concept of collective bargaining. Accordingly, the CBE's conduct goes beyond asimple dispute over contractual terms and amounts to a complete repudiation of the CBA, anunfair labor practice, which the IELRB must adjudicate.;

.0 Referral of the Direet Dealing Charge isNotA ~ ~ r o ~ r i a i e .The CBE may argue that the question of whether the elections were proper under

Appendix C is a subject for an arbitrator to decide under the CBA's grievance and arbitrationprovisions, and that this charge should be referred to arbitration. But referral is not appropriate:(1) there are intertwined independent Section 14(a)(l) violations; (2) the CBE has effectivelyrepudiated the CBA's terms such that reliance on the CBA's arbitration provisions would beinconsistent; (3) there is no need for an arbitrator to consider the violation, since Appendix C isclear on its face; and (4) the CBE's course of conduct evinces enmity towards protected rights.

It does not matter whether or not the contractual provision that the employer repudiates isa mandatory subject of bargaining, since the violation turns on the "repudiation of thatcontractual agreement-not whether the underlying benefits are mandatory." Chicago Board ofEducation, 7 PERI 1114, n.5 (IELRB 1991).


18/28

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

As noted above, this case involves related allegations of independent violations ofSection 14(a)(l), specifically: (1) inducing teachers to vote for a longer school day by offeringbenefits; (2) interrogating teachers about their contacts with the CTU; (3) directing teachers toreport to the CBE their contacts with the CTU about the vote for a longer school day; and (4)banning the CTU from Skinner. In University of Illinois, 15 PERI 1053 (IELRB 1998), thecharge alleged that the employer unlawfully prohibited employees from wearing union insignia.The employer asked that the charge be referred to arbitration, but the IELRB refused to refer thecharge, since it involved an alleged violation of Section 14(a)(l). Similarly, in Bloom TownshipHigh School District No. 206, 20 PERI 35 (IELRB ALJ 2004), the charge alleged an unlawfulinstallation of surveillance cameras. The employer argued that the matter should be referred toarbitration in light of a supposed contractual right to install these cameras, but the IELRB ALJrejected that argument, since "[tlhe determinative issue here is not whether the employer's

conduct was permitted by the contract, but whether the conduct was unlawfully motivated orwhether it otherwise interfered with, restrained, or coerced employees in the exercise of therights guaranteed them by Section 3 of the Act." Id.,citing University of Illinois, 15 PERI 1053at IX-214.

Likewise, this case involves not simply the terms of Appendix C, but also involvesemployees' rights to be f?ee of coercion and restraint. Specifically, the charge alleges that theCBE unlawfully coerced and induced employees into voting for an extended school day. Sincethe charge is not limited to a contractual interpretation question, referral is simply notappropriate. University of Illinois, 15 PERI 1053; Bloom Township, 20 PERI 35.


19/28

2. W here a C ontract Violation Is Clear on the Face of the Con tract, anArbitrator's View Is Not Requ ired."Deferral to arbitration is not appropriate when, although contract provisions are involved

in a dispute, those provisions are clear and unambiguous and do not present problems thatrequire the special competence of an arbitrator." University Moving & Storage Co., 350 NLRB6, 20 (2007). See also, New Mexico Symphony Orchestra, 335 NLRB 896 (2001) ("In theinstant case, the admitted breach of the contract does not involve a question of contractinterpretation or require the special competence of an arbitrator."). Thus, there is no need to foran arbitrator to consider the question of whether the CBE complied with Appendix C, since therecan be no question that the CBE did not comply in at least some respects. There can be nodispute that the CBE has failed to comply with Appendix C, in that it has conducted voteswithout agreement on procedures with the CTU delegate, votes that without a secret ballot, andvotes that included non-members. There is no need for an arbitrator to consider the CBE's

possible contract defense, since Appendix C's language is clear, and just as clearly the CBE didnot comply with those terms.

3. Referral Is Not Appropriate Because of the CBE's Evident EnmityToward Emplovee Rights.Further, even aside from the impossibility of referring the allegations because of the

independent Section 14(a)(l) violation, referral is inappropriate where, as here, the employer'sconduct involves aggravated circumstances and an enmity for protected rights.

In Bloom Township High School District No. 206, 20 PER1 35 (IELRB ALJ 2004), theIELRB ALJ refused to refer the charge since the employer's conduct was more than merely a


20/28

dispute over the meaning of the parties' collective bargaining agreement, but rather came out ofanimus toward protected rights.

Here, the CTU has provided extensive evidence that the CBE is acting out of disregardfor the CBA. The CBE asked the CTU to reopen the CBA's provisions on the length of theschool day, but the CTU declined. The CBE was not satisfied with the CTU's exercise of itscontractual rights, however, and instead launched into a campaign to obtain its desired longerschool day on a school-by-school basis, under the fig leaf of a sham Appendix C vote.Specifically, the CTU has alleged that the CBE took the following steps:

1. Ignoring Appendix C's requirement of an agreement on election procedures between theprincipal and the CTU delegate.2. Ignoring Appendix C's requirement that only CTU members can vote,3. Deliberately stacking the vote with ineligible non-members in order to override the will

of the Union members who are solely authorized to vote on the waiver4. I&~criny"ippendix C's of a secret ballot at Skinner.5. Attempting to implement a city-wide change on a school-by-school basis, which is not

the purpose of Appendix C elections.6 . Attempting to alter the compensation paid to teachers established under Appendix A to

the CBANot only are the votes clearly a sham, but the CBE's related conduct indicates that it

knows it. The CBE is asking teachers to report communications kom the CTU-PrincipalMcManus said that this order comes from "downtown," i.e., the main office of the CBE.

Principal McManus also admitted that she did not want the vote tally to go to the CTU. Goingeven further, Principal Netterstrom instructed Skinner school staff to tum away any unionrepresentatives that wish to talk to teachers unless the union representatives give 24 hours notice


21/28

and get his permission to come. Thus, the CBE does not merely have an honest disagreementwith the CTU about what an Appendix C election involves. Rather, the CBE is doing whateverit can to get a longer school day and is actively thwarting the CTU's efforts to investigate.

In short, it is clear that the CBE is pursuing its longer school day at any cost, styling itsefforts as Appendix C elections, but ignoring Appendix C's requirements. The CBE's patentenmity toward the collective bargaining process and its obligations under parties' CBA makesreferral inappropriate. Bloom Township, 20 PEN 35.

4. Repudiation of the CBA Prevents Referral.

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


22/28

1V. The CBE Has Ignored the CTU's Information Requests.On September 2 and 6,201 1, the CTU requested that the CBE provide information about

the schools in which the CBE is pushing elections for an extended school day (Exhibits I & K)."Information concerning terms and conditions of employment is presumptively relevant," QLawn Communiw High School Dist. 229,23 PERI 167 (IELRB 2007), and the CTU's requestsare directly targeted to wages and hours, but the CBE has not responded (except simply toidentify STEM, Melody, and Skinner North as schools where vote have taken place).Accordingly, the CBE is violation of its obligation under Section 14(a)(5) to provide relevant

information to the CTU.V. Request for Iniunctive Relief.

The CTU requests that the IELRB seek injunction relief under Section 16(d) of theIELRA because ordinary IELRB remedies will not be sufficient unless the CBE's unlawfulcnnc!~ct is immedia?e!y blocked. For the reasoxs stated above, the CTU has alreadydemonstrated a strong likelihood of success on the merits, so the only question is whetherpreliminary injunctive relief is just and proper. In determining whether preliminary injunctiverelief is just and proper, the Board considers whether "(11 an injunction is necessary to preventfrustration of the basic remedial purposes of the Act; [2] the degree, if any, to which the publicinterest is affected by a continuing violation; [3] the need to immediately restore the status quoante; [4] whether ordinary IELRB remedies are inadequate; and i5 j whether irreparable harmwill result without preliminary injunctive relief." Universihl of Illinois, 23 PERI 786 (IELRB2007).


23/28

A. Injunction is Necessary to Prevent Frustration of the Basic Remed ialPurposes of the IELRA.The CBE's actions here strike directly at the heart of collective bargaining relations

established and guaranteed under the Act. The CBE is using the fig leaf of sham Appendix Celections to circumvent its contractual obligations-principals' efforts to conceal the electionprocess and vote tallies from the CTU admit as much. Further, it has unlawfully restrained andcoerced employees in the exercise of their rights. If the CBE is permitted to abuse Appendix C inthis way, the parties' entire CBA will become undone, since the CBE can simply push throughfraudulent elections any time it wants to avoid a CBA provision. And the IELRB's remedies arenot sufficient to deal with this, since there is no effective way to go back and undo the additionaltime that teachers will have been compelled to work. As the Board ruled in East St. LouisSchool District, 5 PEN 71051 (IELFG3 1989), "the failure to seek injunctive relief would risk aserious flouting of the Act to continue until the Board resolves the charge before it."

B. The Public Interest is Affected by a Continuing Violation.The CBE's conduct is a continuing violation for two reasons. First, the CBE's

unlawhlly extended school day will, absent injunction, persist during the pendency of the case atthe schools where the CBE has conducted bogus Appendix C elections. Second, the CBE hasadmitted that it is engaged in a campaign to get a longer school day at all elementary schools.The IELRB has ruled that "the public interest would be adversely affected by allowing [anemployer] to allegedly continue to violate its statutory duty to bargain." University of Illinois, 23PER1786 (IELRB 2007).


24/28

C. The Need to Imm ediately Restore the S tatus Quo Ante.If the CBE is permitted to continue with its bogus Appendix C elections, the entire CBA

is in jeopardy, since the CTU will be left helpless against any sham election the CBE seeks toconduct. Appendix C is carefully crafted to balance flexibility for individual schools against theCTU's right to the benefit of the bargain its struck in the CBA. But the CBE is ignoring theproper procedures in order to effect direct dealing with teachers under the fig leaf of supposedAppendix C elections. Injunctive relief is necessary to protect the CTU's right to the benefit ofits bargain-otherwise, the entire CBA is up for grabs.

D. Ordinary IELRB Rem edies are InadequateImmediate injunctive relief is necessary where an employer's conduct "is undermining

the parties' bargaining relationship in a manner that cannot be undone later." Universitv ofIllinois,23 PERI 786 (IELRB 2007). Here, the CBE's decision to get what it wants throughsham Appendix C elections is a blatat attempt to avoid its bargaining relationship with ;heCTU. (Again, the CBE has admitted this by its principals' efforts to hide the matter from theCTU.) "[Tlhe IELRB's remedies are not designed to correct the unquantifiable harm to theparties' bargaining relationship that is being caused by [the employer's] alleged unilateralactions." a. This is not a case of a simple dispute over the meaning of a contract term, but ratherthis is an attempt to undermine the entire bargaining relationship. Immediate injunctive relief isnecessary to avoid that harm.

E. Irreparable Harm Will R esult Without Preliminary Iniunctive Relief.The Board has recognized that, in the context of injunctive relief, "'irreparable harm'

does not mean injury that is beyond repair or compensation in damages, but rather, means injury


25/28

of a continuing nature." University of Illinois, 23 PERI 86 (IELRB 2007). See also, AFSCMEv. Holsapple, 6 PERI 74026, 201 111. App.3d 1040, 559 N.E.2d 577 (4th Dist. 1990). Here, theinjury is continuing, both in the continuing effect of the longer day at the schools where the CBEhas pushed through sham elections, and in the CBE's admitted efforts to effect a longer schoolday at all elementary schools.

ConclusionIn determining whether to issue a complaint, the Executive Director must "decide

whether its investigation of the charge establishes a prima facie issue of law or fact sufficient to

warrant a hearing of the charge." Lake Zurich School District No. 95, 1 PERI 1031 (IELRB1984). As described above, the CBE: (1) is engaged in unlawful direct dealing with employeesthrough sham Appendix C elections, in violation of Section 14(a)(5); (2) has repudiated theCBA, in violation of Section 14(a)(5); (3) is intimidating and coercing employees to vote for alonger school day, including by shutting out :he CTU, in vio!a?ion cf Section !4(a)(I) ax! 3);and (4) has refused to respond to the CTU's requests for relevant information, in violation ofSection 14(a)(5). For the reasons stated above, not only has the CTU met the standard forissuance of a complaint-the CTU has established a strong likelihood of prevailing on themerits.

Further, immediate injunctive relief is necessary to bar future sham elections and topromptly revert the work day back to its prior length at schools where sham elections havealready taken place. The CBE's conducting sham Appendix C elections in an attempt toimplement a city-wide change through coercive and unlawful school-by-school votes poses athreat to the entire collective bargaining relationship between the parties, since it opens the door


26/28

to abrogation of any CBA provision that the CBE wants to avoid. This damage cannot berepaired through ordinary remedies, but must be prevented through an immediate injunction.

For the foregoing reasons, the Union requests that the CBEbe ordered, including byinjunction, to:1. Cease and desist from dealing directly with employees about the length of the school day.2. Cease and desist from dealing directly with employees about compensation for working a

longer school day.3. Cease and desist from implementing unilateral changes in length of school day and

compensation of CTU-represented employees.

4. Cease and desist from offering inducements to employees to vote in favor of lengtheningthe school day.5. Cease and desist from interrogating employees about contacts with the CTU about

Appendix C elections.6. Cease and desist from directing employees to report contacts with the CTU about

Appendix C elections.7. Cease and desist from directing employees not to communicate with the CTU about

Appendix C elections.8. Cease and desist from barring CTU representatives from school premises.9. Provide the information requested by Robert E. Bloch's email of September 2, 2011.10. Provide the information requested by Karen Lewis's letter of September 6,201 1.11. Post appropriate notices.12. Provide any other relief deemed necessary.

Given the ongoing nature of these violations, which the CBE had admitted, the CTUreserves the right to submit additional evidence and argument in support of its charge.


27/28

Respectfully submitted,

Robert E. BlochCounsel for ComplainantChicago Teachers UnionRobert E. BlochJosiah A. GroffDowo, BLOCH&BENNETT8 S. Michigan venue--19" FloorChicago, IL 60603(312) 372-1361September 8,201 1


28/28

CERTIFICATE OF SERVICEThe undersigned, an attorney, hereby certifies that he caused a copy of the foregoing

Charging Party's Position Statement and Request for Injunctive Relief, with the attached exhibitbinder, to be served on the individuals listed below by messenger on September 8,2011:

Chicago Public SchoolsSuperintendent Jean-Claude Brizard125 South Clark Street5th FloorChicago, Illinois 60603James C. FranczekStephanieB. DonovanJennifer A. DunnFranczek Radelet, P.C.300 S. Wacker Drive, Suite 3400Chicago, Illinois 60606

Documents

Chicago Teachers Union -ULP Coerced Waivers Position Filed