Opinion
1-23-1474
06-28-2024
BOARD OF EDUCATION OF THE CITY OF CHICAGO, Petitioner-Appellant, v. ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD and TERRA SINKEVICIUS, Respondents-Appellees.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from an order of the Illinois Educational Labor Relations Board. Nos. 2019-CA-0031-C; and 2019-CA-0071-C
PRESIDING JUSTICE HOWSE delivered the judgment of the court. Justices McBride and Cobbs concurred in the judgment.
ORDER
HOWSE, PRESIDING JUSTICE
¶ 1 Held: We affirm the order of the Illinois Educational Labor Relations Board. The Board's ultimate determination that petitioner committed an unfair labor practice when it imposed discipline on respondent was not clearly erroneous.
¶ 2 Respondent Terra Sinkevicius was disciplined by her employer, the Board of Education of the City of Chicago (CPS), several times during 2018 and 2019. Respondent had just begun participating in union activities before the adverse disciplinary decisions started to be imposed against her. Respondent filed a claim with the Illinois Educational Labor Relations Board asserting that the CPS committed an unfair labor practice by disciplining her in response to her union activity. The Labor Relations Board concluded that the CPS committed an unfair labor practice and ordered CPS to expunge certain disciplinary decisions from respondent's record. CPS appeals. For the following reasons, we affirm the decision of the Illinois Educational Labor Relations Board.
¶ 3 BACKGROUND
¶ 4 Petitioner Board of Education of the City of Chicago operates Chicago Public Schools. CPS uses a disciplinary system for its teachers that has four steps: Step One is a first warning; Step Two is a second, more serious warning; Step Three is a final warning; and Step Four is a recommendation for termination. Under the collective bargaining agreement between CPS and the Chicago Teachers Union, if a teacher disagrees with a particular disciplinary decision made by the school's administration, the teacher is permitted to submit the matter to mediation/arbitration. During the dispute resolution process, the mediator/arbitrator can modify the disciplinary decision.
¶ 5 If a teacher believes CPS has improperly imposed discipline, particularly by discriminating against the teacher, one of the methods of recourse for the teacher is to file an unfair labor practices charge. 115 ILCS 5/14 (West 2022). When a teacher files an unfair labor practice charge against CPS, defendant the Illinois Educational Labor Relations Board (Labor Relations Board) attains jurisdiction of the dispute. 115 ILCS 5/15 (West 2022). Typically, once the matter is before the Labor Relations Board and the Board determines that the charge states an issue of law or fact, an administrative law judge is assigned to the matter and the ALJ makes a recommendation in the case. The Labor Relations Board then takes up the matter and issues a final order to resolve all claims in the labor dispute. Id. The Illinois Educational Labor Relations Act (115 ILCS 5/1 et seq. (West 2022)) authorizes either the teacher or CPS to appeal the Labor Relations Board's decision directly here in the appellate court (115 ILCS 5/16(a) (West 2022)). ¶ 6 The applicable standard of review in cases involving the review of administrative decisions, such as the decisions in this case (735 ILCS 5/3-101 et seq. (West 2022)), depends upon whether the question presented is a question of fact, a question of law, or a mixed question of law and fact. Cook County School District 130 v. Illinois Educational Labor Relations Board, 2021 IL App (1st) 200909, ¶ 24. Our review of the Labor Relations Board's ruling that CPS committed an unfair labor practice when it disciplined respondent presents a mixed question of law and fact reviewed under the clearly erroneous standard. Id. at ¶ 25.
¶ 7 Respondent Terra Sinkevicius n/k/a Tai Tai (respondent) was hired in 2015 to teach Mandarin Chinese at Wadsworth Elementary School in Chicago's Woodlawn neighborhood. Respondent was hired by Rashid Shabazz, the principal at Wadsworth. For the first three years of her employment, respondent and Principal Shabazz had a cordial relationship. Things began to change in 2018 when Shabazz imposed discipline on respondent several times. Respondent claims that the discipline was being imposed because of her activity with the teachers' union, in which she began participating in 2017. CPS claims that the discipline was imposed because respondent broke protocols, failed to perform her responsibilities, and acted rudely and disrespectfully on several occasions.
¶ 8 Respondent began engaging in union activities in October 2017. Respondent attended a union meeting at the school around that time where several teachers voiced complaints about the school's administration. Some of the teachers in attendance reported back to Principal Shabazz what was said at the meeting. At a staff meeting shortly after the union meeting, Shabazz told the staff he was disappointed because he had been stabbed in the back at the union meeting. Respondent told Shabazz it was inappropriate for him to make such comments because the teachers have the right to openly discuss their concerns during union meetings. Later, respondent played a large role in the Chicago Teachers Union filing a grievance with the Chicago Board of Education about temperature issues, poor air quality, and other issues at Wadsworth.
¶ 9 On October 12, 2018, Principal Shabazz met with respondent to address her misuse of the CPS email system. Respondent had been sending mass emails to her colleagues during instructional hours, and several staff members reportedly complained to Shabazz about receiving emails from respondent. The administration had previously met with respondent and informed her of the problem and asked her to refrain from sending the mass emails to the staff, but the emails continued. After consulting with CPS's law department, Shabazz issued a Step Two warning to respondent for her misuse of the school's email system.
¶ 10 In October 2018, respondent contacted the Illinois State Board of Education to report that Shabazz had failed to schedule a meeting to organize the State-mandated professional leadership committee (PPLC). The purpose of the meeting was to set up a Professional Personnel Leadership Committee at the school. After respondent's report, the election meeting was scheduled. During the meeting, Shabazz attempted to enter the meeting room, but respondent told him the rules did not allow him to be present. Ultimately, a union representative who was present, stepped in and told Shabazz that under union rules and state law he was not permitted in the room during the election. Shabazz testified that respondent yelled at him and physically blocked him from entering the room. Respondent denied she yelled or physically blocked Shabazz from entering the room. Two other witnesses testified that respondent did not raise her voice or physically block Shabazz. Based on respondent's conduct at that meeting, Shabazz issued a "no action" report which did not have any disciplinary significance for respondent. After this point, however, the conflicts between respondent and Shabazz began to be frequent, and respondent was disciplined several more times in the ensuing months.
¶ 11 After the PPLC meeting, Shabazz disciplined respondent six times. On November 26, 2018, respondent confronted a substitute teacher in the school's main office. Respondent reportedly berated the substitute teacher loudly and rudely in front of other staff members making insulting and degrading comments towards the substitute. Respondent denies this allegation, but Shabazz issued another Step Two warning as a result of respondent's alleged conduct.
¶ 12 On December 18, 2018, respondent saw a bedbug in the classroom and took the class outside. While outside with the class, respondent was reportedly using her cellphone and not watching the students. A fight occurred between some of the students, and one of the students was injured. Respondent reportedly failed to report the fight to the school's administration which is a violation of CPS policy. Respondent claims that she responded appropriately to the incident. Shabazz issued a Step Three final warning to respondent based on this incident.
¶ 13 Respondent brought the aforementioned disciplinary matters before the mediator/arbitrator according to her rights in the collective bargaining agreement. Following mediation, the Step Two discipline for unprofessional behavior towards the substitute teacher was reduced to a Step One. The Step Two discipline for misusing the CPS email system was dismissed. And the Step Three warning for respondent's actions or inaction relating to the fight between students was reduced to a Step One warning.
¶ 14 On February 7, 2019, respondent reportedly encouraged students to skip a standardized test. Students then began questioning why they were being required to take the test. Respondent then reportedly disrupted the testing room while the test was ongoing. Respondent entered the room and asked the test's proctor to step into the hallway where respondent questioned the proctor and later the assistant principal about the propriety of giving the test, becoming "loud and irate." Respondent claims she did not disrupt or interfere with the testing.
¶ 15 On March 13, 2019, respondent was reportedly rude and disrespectful to two parents who were asking why respondent had not yet posted grades for their child. The parents were in the process of trying to adopt the child and hoped to have his grades to be able to show that the child was thriving under their guardianship. Respondent refused to meet with the parents to discuss the child's academic performance and acted so rudely to the mother that she wanted to take both of her children out of that school. Respondent denied the witnesses' version of events.
¶ 16 Relatedly, respondent was disciplined for failing to post student grades in a timely manner during the third academic quarter in 2019. Respondent admits that she failed to timely enter the grades, and she did not contest the discipline imposed for this omission. She received Step One discipline for this issue.
¶ 17 On March 26, 2019, respondent got into an argument with students about an information packet Principal Shabazz had given the students relating to the upcoming Constitution test. Respondent began to record audio of her argument with the students, and she was reportedly yelling at them and intimidating them. Respondent then began to ignore the students and give them the silent treatment. A student's mother wanted to meet with respondent about this incident, so they met in the principal's office. Respondent claimed she was just joking with the students when she was ignoring them. Respondent then became disrespectful and argumentative with Principal Shabazz, questioning him about why he gave the informational packet to all the students. Respondent also called the student and her mother both liars. The student's mother considered respondent's actions in the meeting to be rude, unprofessional, and manipulative. The mother demanded that her daughter be removed from respondent's class.
¶ 18 On April 3, 2019, the school's clerk was doing payroll when she noticed that respondent had written "court" as a reason for an absence from work. The clerk went to ask respondent if the court appearance was for personal reasons or for CPS-related reasons to determine if the absence was excused under CPS policy. Respondent reportedly told the clerk to provide her with written documentation of what the clerk was saying, and respondent then slammed the door in the clerk's face. Respondent emailed Principal Shabazz stating her belief that Shabazz sent the clerk to talk to her about the absence. The clerk went back to confirm to respondent that Shabazz did not send her and that she was merely trying to do payroll and needed the information. Respondent reportedly ignored the clerk in front of the students, spoke to the clerk in a demeaning way in front of the students, and then slammed the door in the clerk's face a second time. The clerk returned to the principal's office very upset and very hurt, with tears in her eyes. ¶ 19 Later that same day, on April 3, 2019, there was a meeting of the Local School Council that both Principal Shabazz and respondent attended. After the meeting, respondent reportedly went into a tirade and started screaming and shouting insults at all the people in attendance. Respondent claimed that the school "sucked" and was failing. Respondent claimed that the school's curriculum was no good and that the people in that meeting were "liars, bootlickers, and coons." Among other statements, respondent also said that the parents who were members of the Local School Council are uneducated people, do not care about the school, and are incompetent and shameful bootlickers. Respondent reportedly denigrated a visiting teacher claiming that the teacher was inferior to respondent because the teacher was light skinned and respondent is dark skinned. The council members were reportedly in unanimous agreement that respondent's behavior was unacceptable. Respondent could not recall the exact words she used during that meeting, but she admits she called people names.
¶ 20 Principal Shabazz wrote a disciplinary report that covered all the incidents from February 2019 to April 2019. In an April 9, 2019 disciplinary decision, Shabazz imposed a Step Three final warning for those incidences. Respondent asked for review of that discipline in mediation/ arbitration. The mediator/arbitrator decided to withhold any ruling on this disciplinary action because, as explained below, respondent filed an unfair labor practices charge against CPS.
¶ 21 For the 2019-2020 school year, CPS decided to discontinue the Mandarin language program at Wadsworth. Because the school no longer had a need for a Mandarin teacher, respondent was reassigned to an early childhood special education position. The Chicago Teachers Union filed a grievance on respondent's behalf. The union claimed that the cancellation of the Mandarin courses and respondent's reassignment constituted harassment and retaliation, particularly because of respondent's protected union activity.
¶ 22 In her unfair labor practices charge against CPS, respondent claimed that CPS imposed discipline on her because of her protected work on the PPLC and her other union activity. The Chicago Teachers Union filed a separate charge against CPS relating to respondent's case. The charges were consolidated, and a hearing was scheduled on the charges before an administrative law judge.
¶ 23 The ALJ heard testimony from 11 witnesses over a two-day period. The parties submitted roughly 800 pages of documentary evidence during the hearing. The ALJ issued a recommended order to the Labor Relations Board recommending that the Board conclude that respondent engaged in protected union activity and that CPS violated the labor laws when disciplining her. The ALJ found that there was a connection between respondent's union activity and the adverse actions taken against her. The ALJ also found that CPS did not articulate a proper reason for closing the Mandarin language program or reassigning respondent such that CPS further violated the applicable labor law.
¶ 24 The Chicago Teachers Union withdrew from the case so that respondent was the sole complainant, and her personal attorney became counsel of record. CPS filed exceptions to the recommended decision by the ALJ and the case proceeded to the Labor Relations Board for final resolution. The Labor Relations Board adopted the ALJ's recommended order in part.
¶ 25 The Labor Relations Board found that respondent's claim regarding the elimination of the Mandarin program was outside the scope of the complaint. The Board observed that respondent could have included the claim in her complaint, or amended her complaint to include the claim, but did not. The Board explained that respondent failed to "include the allegation that [CPS] violated the Act when it cancelled Wadsworth's Mandarin program and reassigned [respondent]." The Board explained that CPS did not have sufficient notice of respondent's claim or the opportunity to present a defense. The Board additionally found that respondent failed to present sufficient argument or evidence to demonstrate a meaningful effort to advance the claim relating to the discontinuation of the Mandarin program. Thus, the Board ruled that "the ALJ erred by finding [CPS] violated [the statute] by cancelling Wadsworth's Mandarin program and reassigning [respondent] from teaching Mandarin to teaching Pre-K special education."
¶ 26 Respondent has not filed a cross-appeal or otherwise argued that the Board erred when it concluded that respondent was not entitled to relief on any claim related to cancelling the Mandarin program in this case. Therefore, that issue is not before this court.
¶ 27 The issue that is before the court is CPS's claim that the Labor Relations Board erred when it concluded CPS committed unfair labor practices with regard to its discipline of respondent. The Labor Relations Board found that there was a nexus between respondent's protected union activity and CPS's disciplinary actions adverse to respondent. The Board found there to be evidence of Principal Shabazz's "antiunion animus." The Board further found that the timing of the adverse actions against respondent evidenced a causal connection for retaliation because respondent's union activity began around the same time the adverse disciplinary actions began. Thus, the Board concluded respondent "established a prima facie case that [CPS] violated Section 14(a)(3) of the [Illinois Educational Labor Relations Act (115 ILCS 5/14(a)(3) (West 2022))]."
¶ 28 After finding respondent had established herprimafacie case, the Labor Relations Board examined whether CPS met the burden shifted onto it to show that it had legitimate business reasons for disciplining respondent. Regarding the discipline imposed for failing to timely post grades, the Board found CPS met its burden to justify the discipline. As for the remainder of the discipline, the Board found that CPS relied "in part on [respondent's] protected activity in imposing this discipline."
¶ 29 Based on its findings, the Labor Relations Board ordered that CPS cease and desist from: interfering with respondent's exercise of her protected activity; retaliating against respondent for her protected activity; and discriminating against her regarding hiring and tenure terms or any other condition of employment to influence respondent's membership in an employee organization. The Board also ordered CPS to expunge from its files and records: (1) the December 3, 2018 "no action" warning issued to respondent; (2) the December 19, 2018 Step Two warning that was reduced to a Step One warning; (3) the December 19, 2018 Step Two warning that was dismissed; and (4) the January 25, 2019 Step Three final warning that was reduced to a Step One warning. The Board directed CPS to inform respondent when these disciplinary measures had been expunged and to confirm in writing to her that the evidence of this discipline would not be used as the basis of future personnel actions against her.
¶ 30 CPS filed for direct review of the Labor Relations Board's decision. Some additional events occurred outside the scope of this case that are worthy of mention here. After the Labor Relations Board issued the decision in this case, CPS terminated respondent's employment for misconduct that post-dated the events in this case. Respondent began teaching at a new school and reportedly had multiple incidents of threatening and abusive behavior towards students, staff, and parents of students. CPS determined that the conduct warranted the termination of respondent's employment. Respondent filed a petition for review of her dismissal in this court. See Tai Tai v. Board of Education of City of Chicago, No. 1-23-1750. In that case, respondent failed to file a brief within the time prescribed by the Supreme Court Rules, and we dismissed her appeal for want of prosecution. Tai Tai v. Board of Education of City of Chicago, No. 1-231750 (unpublished order, Mar. 7, 2024). Respondent filed a motion to vacate the dismissal, but we dismissed that motion for lack of jurisdiction. Tai Tai v. Board of Education of City of Chicago, No. 1-23-1750 (unpublished order, Apr. 18, 2024).
¶ 31 ANALYSIS
¶ 32 Although not specifically raised by the parties, we think it is important to address the issue of mootness. At issue in this case are multiple disciplinary decisions made by CPS during the course of respondent's employment. Respondent's employment has since been terminated, and the termination decision was made totally independent of any of the disciplinary issues at issue here. While respondent filed a petition for review of the termination decision in a separate appeal to this court, her appeal was dismissed. Respondent did not seek review in the supreme court, and the termination of her employment is now final.
¶ 33 The discipline at issue in this case concerns intermediate discipline-warnings-that never rose to the level of Step Four discipline in which termination of respondent's employment was recommended. Because the highest level of discipline, Step Four, has now been imposed on respondent in an unrelated case, it raises the question of whether we should review the lesser discipline at issue in this case. A case on appeal becomes moot when it is impossible for the reviewing court to grant the complaining party meaningful relief. Atkinson v. Roddy, 2013 IL App (2d) 130139, ¶ 9.
¶ 34 In supplemental briefing, both parties agreed that this appeal is not moot, and we agree. This appeal is not moot, because the discipline at issue here is still a matter for respondent's record and could have collateral legal consequences for her, as well as for CPS, in the event she seeks future employment with CPS or elsewhere. See Chand v. Patla, 342 Ill.App.3d 655, 661 (2003) (where collateral legal consequences still existed in a case where the plaintiff's employment privileges were terminated, the dispute is not moot); see also People ex rel. Raoul v. Illinois Com. Comm'n, 2021 IL App (1st) 200366, ¶ 43 (where determination of current dispute will set the basis for future decisions, the claim is not moot). Because the conduct giving rise to the discipline in this case is wholly independent from the conduct that led to the termination of respondent's employment, both respondent and CPS have an interest in the ultimate adjudication of the discipline imposed in this case. Therefore, we will review the parties' contentions on the merits.
¶ 35 CPS argues that the Labor Relations Board erred when it ruled that CPS's disciplinary actions from 2018-19 constituted unfair labor practices. As a preliminary matter, it is important to address what disciplinary decisions are before the court in this appeal. As set forth above, this appeal does not concern the termination of respondent's employment. This appeal likewise does not concern respondent's claim relating to the discontinuation of the Mandarin language program at the school or her reassignment to a different teaching role. Respondent has additionally conceded that the discipline imposed for her failure to timely enter student grades was not in error, so the discipline imposed for that infraction is not before us.
¶ 36 Remaining are the issues relating to certain written warnings imposed on respondent by CPS in 2018 and 2019. That discipline includes the four disciplinary decisions specifically overruled by the Labor Relations Board: (1) the December 3, 2018 "no action" warning; (2) the December 19, 2018 Step Two warning that was reduced to a Step One warning; (3) the December 19, 2018 Step Two warning that was dismissed; and (4) the January 25, 2019 Step Three final warning that was reduced to a Step One warning. There is one other disciplinary decision outstanding which is the April 9, 2019 Step Three final warning imposed by CPS.
¶ 37 The April 9, 2019 Step Three warning was comprised of several incidents in which respondent is alleged to have exhibited rude, confrontational, and unprofessional conduct between February and April 2019. In that time, respondent allegedly: disrupted a standardized test and then caused a scene in the hallway in which she became irate with the assistant principal; acted rudely and disrespectfully to two parents trying to find out about their son's grades; got into an argument with students and another parent about an upcoming test and recorded audio of the students; got into an argument with the school's clerk in which respondent slammed the door in the clerk's face twice and caused the clerk to be very upset; and went into a tirade at the conclusion of a school council meeting in which she called the attendees disparaging names, denigrated the attendees as uneducated, and cast aspersions at an attendee due to the color of her skin.
¶ 38 When respondent challenged this Step Three discipline before a mediator, as she had done with the prior discipline, the mediator did not address the discipline because respondent had already filed the unfair labor practice charge. The Labor Relations Board addressed the conduct in the April 9, 2019 Step Three warning in its analysis and explained that the disciplinary decision constituted adverse action. The Board explained that it found the April 9, 2019 Step Three discipline to be partially based on respondent's protected activity.
"[CPS]'s proffered reasoning for the remaining discipline, the December 2018 and January 2019 warnings and Step 3 warning for the allegations contained in the April 2019 meeting notice, does not appear as clearly unrelated to [respondent's protected activity. Given the correlation between her union activity and the adverse actions, we find that [CPS] relied, in part, on her protected activity in imposing this discipline upon [respondent] (emphasis added)."
However, in the section of its order where the Labor Relations Board issued its command for remedial action, the Board directed CPS to expunge files and references to certain specific disciplinary actions identified by the date of the discipline, but the April 9, 2019 disciplinary action is not addressed at all in the Board's ultimate ruling. The Board only addressed earlier discipline imposed by CPS, and the Board did not direct CPS to take any action related to the Step Three final warning issued in April 2019.
CPS was ordered to:
"Expunge from all its files and records any and all references to the No Action warning issued to Sinkevicius on or about December 3, 2018, the Step 2 warning issued to Sinkevicius on or about December 19, 2018 that was reduced to a Step 1, the Step 2 warning issued to Sinkevicius on or about December 19, 2018 that
was dismissed, and the Step 3 warning issued to Sinkevicius on or about January 25, 2019 that was reduced to a Step 1."
¶ 39 CPS argues, therefore, that the issue of the April 9, 2019 Step Three warning is not before us for review. Respondent argues that the Labor Relations Board "apparently inadvertently omitted this discipline in the list of items to be expunged," but that the other parts of the order demonstrate that the Board found CPS to have violated the Illinois Educational Labor Relations Act (115 ILCS 5/1 et seq. (West 2022)) when it imposed this discipline.
¶ 40 Even if we accept respondent's interpretation of the Labor Relation Board's analysis and conclude that the Board found CPS committed an unfair labor practice with regard to the April 9, 2019 disciplinary decision, the Board did not order CPS to take any action with regard to that decision. We cannot speculate about the remedial measures the Board intended, even if the failure to address the disciplinary decision in its order was inadvertent. We cannot assume that the Board would have ordered CPS to expunge the records related to the April 9, 2019 discipline just because it chose that action when ruling on CPS's other disciplinary decisions.
¶ 41 When the Labor Relations Board finds an unfair labor practice, the Board is "empowered to issue an order requiring the party charged to stop the unfair practice, and may take additional affirmative action." 115 ILCS 5/15 (West 2022). Under that statute, we have approved of the Board taking a variety of different actions to achieve the statute's remedial purposes, and we have also approved of the Board taking no remedial action at all even where there may be evidence of an unfair labor practice. See Board of Education, Granite City Community Unit School District No. 9 v. Sered, 366 Ill.App.3d 330, 340 (2006) (the Board has substantial flexibility in crafting a remedy for an unfair labor practice); Macomb Education Assn, IEA-NEA v. Illinois Educational Labor Relations Board, 265 Ill.App.3d 194, 202 (1994) (even where there is evidence of an unfair labor practice, the Board is empowered to take no action on the issue if there is little impact caused by the violation or if adjudication of the issue would not serve the purposes of the Act).
¶ 42 The Educational Labor Relations Board has wide discretion and substantial flexibility in determining an appropriate remedy for an unfair labor practice. Sered, 366 Ill.App.3d at 340. By issuing no remedial order with regard to the April 9, 2019 discipline, the Labor Relations Board left that discipline intact. The Board may have determined that the impact of CPS's labor practice was de minimis relating to that discipline or that disturbing CPS's disciplinary decision would not further the purposes and policies of the Act. See Macomb Education Assn,, 265 Ill.App.3d at 202 (giving the board discretion to decline to file a complaint against a school district where it found the alleged violation of the Act had a de minimis impact or would not further the purposes or policies of the Act). Accordingly, we find that the issue of the discipline for the conduct described in the April 9, 2019 decision is not before us for review.
¶ 43 We now move to the question of whether the Board erred when it found that CPS committed an unfair labor practice when it imposed the remaining discipline on respondent. The Board ordered CPS to expunge from respondent's record the December 3, 2018 No Action warning, the December 19, 2018 Step Two warning that was reduced to a Step One warning, the December 19, 2018 Step Two warning that was dismissed, and the January 25, 2019 Step Three final warning that was reduced to a Step One warning. Thus, after the dismissals and reductions made by the mediator/arbitrator, respondent was left with a no action warning and two Step One warnings.
¶ 44 Section 14(a)(3) of the Educational Labor Relations Act prohibits an educational employer from "[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)(3) (West 2022). This subsection of the statute has been interpreted to forbid a school district from discriminating against an educational employee based on the employee's participation in union activity. Bloom Township High School District 206, Cook County v. Illinois Educational Labor Relations Board, 312 Ill.App.3d 943, 957 (2000) (''Section 14(a)(3) applies to discrimination based on union activity."). The test to determine if an educational employer has violated section 14(a)(3) of the Act requires the complainant to first establish aprimafacie case by proving that: (1) the employee was engaged in protected union activity; (2) the employer was aware of that activity; and (3) the employer took adverse action against the employee for engaging in that activity. Thornton Fractional High School District No. 215 v. Illinois Educational Labor Relations Board, 404 Ill.App.3d 757, 766 (2010). While the Labor Relations Board's ultimate decision is reviewed under the clearly erroneous standard, its decisions on these three preceding questions of fact are deemed to beprimafacie correct and we will reverse the findings only if they are against the manifest weight of the evidence. Id.; see also 735 ILCS 5/3-110 ("The findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct.").
¶ 45 CPS does not contest whether respondent made the initial prima facie showing of discrimination with regard to the first two factors. Indeed, respondent submitted uncontested evidence to the Labor Relations Board that she engaged in significant union activity and that Principal Shabazz was well aware of that activity. Respondent attended union meetings, was involved on committees, and assisted in filing grievances, among other activity. There was evidence Shabazz was present at a union meeting where his attendance was unwelcome or prohibited, and there was evidence that other union members reported back to Shabazz about what happened at the union meetings. There is no genuine question that respondent participated in union activities and that CPS, through Shabazz, knew about respondent's union activity.
¶ 46 As to the question of whether CPS took adverse action against respondent as a result of her protected activity, respondent submitted evidence that she was not disciplined before her involvement with the union, but she was disciplined several times by CPS shortly after becoming involved with the protected activity. See Bloom Twp., 312 Ill.App.3d at 960 (the timing of the discipline in relation to the union activity is one factor to consider in determining whether the complainant has made aprimafacie showing of discrimination). Respondent also pointed to some of the actions by Principal Shabazz that evidenced potential anti-union animus. Principal Shabazz openly expressed disappointment and feeling betrayed by statements staff members made during a union meeting, he failed to schedule a committee election and then, when it was ultimately scheduled, tried to enter the room until a union representative intervened and told him he must leave.
¶ 47 When considering whether a complainant made aprimafacie case of discrimination for engaging in union activity, the question of motive is a question of fact. Speed District 802 v. Warning, 242 Ill.2d 92, 113 (2011). "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." Id. We find that the Labor Relations Board's decision on this part of the case is not against the manifest weight of the evidence.
¶ 48 After aprimafacie case of a section 14(a)(3) violation has been made, the Labor Relations Board still cannot make a 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. Id. The burden is on the employer with regard to this question. General Service Employees Union, Local 73, SEIU, AFL-CIO, CLC v. Illinois Educational Labor Relations Board, 285 Ill.App.3d 507, 516 (1996).
¶ 49 When it made its decision in this case, the Labor Relations Board found CPS's reasoning for the discipline to "not appear as clearly unrelated to [respondent's] protected activity." The Board found that CPS "relied, in part, on [respondent's] protected activity in imposing this discipline." Thus, the standard the Labor Relations Board applied here would have required CPS to show that its reason for the discipline was "clearly unrelated" to respondent's protected activity and that CPS was required to prove that its decision to discipline respondent was made totally independent of her protected activity. Our supreme court has framed the standard differently.
¶ 50 The controlling supreme court precedent dictates that "[o]nce the charging party has established a case of discharge based in part on antiunion animus, the employer can avoid a finding that it violated the statute by demonstrating that the discharged employee would have been fired for a legitimate business reason notwithstanding the employer's antiunion animus." City of Burbank v. Illinois State Labor Relations Board, 128 Ill.2d 335, 346 (1989). If the reasons advanced by the employer are legitimate and the employer "is found to have relied on [those reasons] in part, then the case is characterized as one of 'dual motive' and the employer must [then] demonstrate by a preponderance of the evidence that the employee would have been terminated notwithstanding his union involvement." Id. at 346-47.
¶ 51 The supreme court has held that if an employer relies in part on legitimate reasons for imposing discipline, the case is a dual motive case. If we find the case to be a dual motive case, we then move forward to the next question about whether the discipline would have been imposed absent the protected activity. Id. The Labor Relations Board here truncated the procedure and held that since CPS relied in part on respondent's protected activity, CPS committed an unfair labor practice. We conclude that the Board should have determined if CPS's actions were based in part on legitimate reasons.
¶ 52 We find that the record shows CPS's disciplinary actions against respondent to have been based at least in part on legitimate reasons. Instead of ending the inquiry upon finding that CPS failed to show it acted totally independent of respondent's union activities, the Board should have continued under the dual motive framework to decide whether respondent would have been disciplined for her actions notwithstanding her union activities. See id.
¶ 53 Despite the Labor Relations Board applying the incorrect standard to CPS's conduct, we nonetheless find that the Board's ultimate decision in the case was not clearly erroneous. The Labor Relations Board adopted the factual findings made by the ALJ and it adopted the ALJ's recommendation with regard to the discipline at issue in this appeal. The ALJ and the Board made a specific finding that there was a nexus between the adverse disciplinary decisions and respondent's protected activity. The Board rejected CPS's proffered reasoning to support the discipline at issue in this appeal and instead ordered CPS to cease and desist from interfering with plaintiff's rights under the Educational Labor Relations Act, from retaliating against her for her protected activities, and from using that discriminatory discipline to affect the conditions of respondent's employment. We find it clear from the Board's ruling that it determined respondent would not have received the discipline at issue but for her union activity.
¶ 54 Our review of the Labor Relations Board's ultimate ruling that CPS committed an unfair labor practice when it disciplined respondent is to be upheld on appeal unless the decision is clearly erroneous. Cook County School District 130, 2021 IL App (1st) 200909, ¶ 24. This standard is highly deferential to the Board's decision and should be reversed only if the court is left with the definite and firm conviction that the Board made a mistake. Cinkus v. Village of Stickney Municipal Officers Election Board, 228 Ill.2d 200, 211 (2008). We are not to substitute our judgment for the Board merely because we might have drawn other inferences from the evidence. Board of Education, City of Peoria School District 150 v. State of Illinois Educational Labor Relations Board, 318 Ill.App.3d 144, 151-52 (2000). If the record contains evidence to support the administrative agency's decision, it should be affirmed. Abrahamson v. Illinois Department of Professional Regulation, 153 Ill.2d 76, 88 (1992). Here, there is evidence to support the Board's decision and its decision is not clearly erroneous. Under the applicable standards outlined above, we conclude that the Labor Review Board's decision should stand.
¶ 55 CONCLUSION
¶ 56 Accordingly, we affirm.
¶ 57 Affirmed.