In Thornton Fractional High Sch. Dist. No. 215 v. IELRB, the Illinois Appellate Court recently held that a high school district did not engage in any unfair labor practices when it did not assign 12-month secretarial positions on the basis of seniority, and when it did not offer a 12-month position to a secretary who also happened to be the Union Vice President. The Court reversed a decision by the Illinois Educational Labor Relations Board (IELRB) on both counts.

In February 2005, faced with a major budget deficit, the District announced its decision to reduce all 12-month building secretaries to 10.5-month positions, except for principal secretaries and guidance secretaries. The District’s decision regarding who would remain in 12-month positions depended not on seniority but rather on an employee’s individual qualifications. At the time, the District’s secretaries were not represented by a labor organization.

Shortly after the District implemented its decision, the clerical employees organized, and the IELRB certified the Union as their exclusive bargaining representative. During bargaining over the initial contract, the Union submitted, but later withdrew, a proposal that would have allowed clerical employees whose schedules were reduced to bump into 12-month positions on the basis of seniority. The Union did not request any further bargaining over this issue, however, and later, when the Union Vice President was not assigned to a vacant 12-month position, it filed an unfair labor practice charge against the District. The IELRB held that that the District unlawfully changed the status quo of assigning 12-month positions on the basis of strict seniority without first bargaining with the Union. It also held that the District retaliated against the Union Vice President when it did not assign her to a 12-month position because of her Union activity.

The Court disagreed. Characterizing the IELRB’s decision as a “radical departure” from well-established precedent, the Court evaluated the status quo by examining the District’s past practice, the parties’ bargaining history, the existing contract terms and the employees’ reasonable expectations regarding assignments to 12-month secretarial positions. A careful review of those factors demonstrated that the District had never before assigned 12-month positions based solely on seniority, and no existing work rule or policy provided that seniority controlled this decision. The Court discounted statements allegedly made by certain administrators regarding seniority, finding no evidence that these comments carried the weight of policy pronouncements endorsed by the District’s board of education. The Court also found the parties’ bargaining history particularly telling, where the Union had notice of the schedule reductions but did not request to bargain about or pursue the issue during negotiations. The Court therefore reversed the IELRB’s decision and held that the District did not unlawfully change the status quo regarding assignments to 12-month positions when it assigned employees on the basis of their qualifications, as opposed to seniority.

The Court similarly reversed the IELRB’s conclusion that the District unlawfully retaliated against the Union Vice President because of her protected Union activity. The Court found no evidence of unlawful anti-union motivation on behalf of the District where the record was devoid of any hostility toward unionization, disparate treatment of union employees or shifting explanations as to why the Union Vice President did not receive a 12-month position. The Court specifically disavowed the IELRB’s reliance on statements of District representatives during bargaining as evidence of an unlawful motive—including an administrator’s statement that the Union Vice President should be “careful what she wished for” and an attorney’s comment that she would “never get” a 12-month position. According to the Court, the IELRB unjustifiably ascribed union animus to these remarks when it was just as likely that the statements were motivated by legitimate, non-Union concerns, as explained in the record.

The Thornton decision clearly reaffirmed longstanding precedent defining the status quo between a school district and a newly certified bargaining agent, as well as the analysis used to determine if an educational employer retaliated against an employee because of her union activity. While acknowledging the deference that is due to labor relations agencies like the IELRB, the Court harshly criticized the IELRB’s apparent disregard of that precedent. The IELRB recently indicated that the Union is filing a petition for leave to appeal the decision to the Illinois Supreme Court.