Domain 4 and Union Activity – New Labor Board Decision is a Warning for Administrators

Maine Teachers’ Association, IEA-NEA and
Maine Township High School District 207
, 36 PERI ¶ 2 (IELRB 2019)

1.                  The Decision.

Last month an Administrative Law Judge of the Illinois Educational Labor Relations Board concluded that District administration committed an unfair labor practice by including negative comments in a teacher’s evaluation based on comments the teacher made during the public comment period of a Board of Education Meeting.  The decision serves as a warning to administration and a reminder that the Illinois Labor Acts may give protection to employees who lack “professionalism” when engaging in protected activity.

In the case, District administrators demanded that a union president apologize and retract statements he made during a Board meeting that were critical of the superintendent after learning that his comments were incorrect.  The union president never did so, and the administration included negative comments in Domain 4 of his next evaluation reflecting his apparent lack of professionalism.  Even though the negative comments did not deter the District from providing the teacher with an overall “accomplished” rating for Domain 4, an Administrative Law Judge concluded that the comments in the evaluation as well as the District’s reaction to the teacher’s comments at the Board meeting constituted a violation of the Labor Act.

Because the union president’s comments demonstrated the existence of a labor dispute between the employer and employees and because the evidence at the hearing did not establish that his comments were “deliberately or maliciously false” the comments did not lose their protection under the Labor Act.

2.                  The Factual Background[1]

In April of 2017 the union president for the Maine Teachers’ Association approached a Maine Township High School District 207’s assistant superintendent with questions about negative comments in a some teachers’ evaluations.  The administrator remarked that the comment “sounded like” the District superintendent.

Later, during the May 1, 2017 Board of Education meeting, the union president addressed the Board during the public comment period.  He said that he believed the District would benefit from quarterly meetings between Union leadership and the Board to avoid raising certain issues during public comment.  As an example of something that might be addresses privately, he said that the Union was concerned that the superintendent had been placing negative statements in teachers’ evaluations.  Later, by email, the superintendent denied the allegation that he had put any comments in evaluations.

The superintendent raised the issue with the principals and one principal admitted that she thought she knew what the union president was referring to.  The next day, the principal and science department chair met with the union president, and the principal admitted that she had written the comments in the teacher’s evaluation, not the superintendent.

Two weeks later, the union president met with the superintendent.  The superintendent reiterated that he was not involved in the evaluations and asked if the union president believed there was anything he should apologize for.  The superintendent said that the union president should prepare a “heartfelt apology” for the Board of Education, and if it were him, he would present it publicly the way the message was originally conveyed.  The union president said he would not apologize and that he would be out of state for for the June Board meeting.  The superintendent suggested that the President apologize in writing for the June meeting and then apologize publicly during the July meeting.  Although the superintendent denied threatening the union president, he said “things like this could be included in your evaluation.”  The union president said that the superintendent alluded to the idea that the Board “has ways of handling situations like this and that it would be best to apologize.”

After a newspaper article referring to the union president’s comments during the Board meeting appeared in the local media, the superintendent again spoke with the union president and told him that he was “putting himself at risk as an employee” and again asked him to apologize.

The union president later met with the principal and science department chair.  The principal stated that his comments about the superintendent were seen as unprofessional and that, if he did not apologize, they could be reflected in his evaluation in Domain 4 (Professional Responsibilities).  The union president explained that he did not believe his behavior as union president should be reflected in Domain 4 since the evaluation is for his performance as a teacher, not as union president.  The principal replied that she did not agree and that a teacher is a teacher “24/7.”  She told him that she, as an individual, “but not as an evaluator or principal, felt [he] should apologize if [he] made a false statement or realized what [he] said was wrong.”  The union president asked if he should “warn other Union members if they are on a committee, that anything they say in that committee could be put in Domain 4 on their evaluation.”  The principal replied that she did not “recommend a general statement like that, but it was accurate that people’s behavior on committees would reflect how they are as a teacher.”

The next day the President sent an email to the principal and Department Chair that summarized the meeting.  The principal replied that she “did not believe [his] recollection of the meeting was accurate, that she would not submit her response via email and suggested he set up time to meet with her in person, so she could remind what was said and how/why it was said.”  The same day, the superintendent sent a text message to the union president and asked if he planned to write and apologize.

A few days later, the principal and the department chair met with the union president and the union representative.  During the meeting the principal stated that “she had not said it would be used in his evaluation, but that it could be and that was not a threat[.]”  She again suggested tha he apologize to make it right.

The union president never sent an apology letter and never retracted his public statement.

The superintendent believed the union president’s comments at the Board Meeting would be potentially harmful to his reputation.

In March of the next year, 2018, the union president received his first evaluation since the May 1, 2017 Board meeting.  In Domain 4e) “showing professionalism” he was rated as “needs improvement.”  The principal attended his summative evaluation and sated that she was there to talk about Domain 4e saying that he “had lied to the public.”  The comments in Domain 4 stated:

As previously noted in conversations with you, on May 1, 2017, you made two false statements during public comment time at a Board of Education meeting. One statement was to the effect that the superintendent was putting negative comments into teachers’ evaluations without their knowledge. The other statement was to the effect that you knew, or should have known had you done a minimal amount of checking, that the accusations you were making towards the Board and superintendent were false. When corrected later by both the superintendent and the principal, you did not acknowledge your false statements, nor did you make any attempt to correct the false statements publicly.

Moving forward, you are to refrain from making statements related to the District that are not true and cannot be supported with evidence after a reasonable degree of reflection for accuracy. You should exercise self-reflection, especially when realizing such conduct has occurred, and take appropriate steps to re-achieve credibility and high standards of honesty and integrity. As an employee in Maine Township District 207, we expect professionalism at all times insofar as your actions relate to the District. While this element of component 4e is unsatisfactory, your performance on the other elements and components of Domain 4 are sufficiently strong to obtain an overall accomplished rating in Domain 4

The Union thereafter filed an unfair labor practice charge with the Illinois Educational Labor Relations Board alleging that the District violated Section 14(a)(1) of the Labor Act which prohibits administrators from “interfering with, restraining, or coercing educational employees in the exercise of their rights under the [Labor] Act.”

Despite the “Needs Improvement” rating on Domain 4e of the union president’s evaluation, he received an overall summative rating of Distinguished, the highest rating, on his overall evaluation.  Nevertheless, the Administrative Judge concluded that the superintendent’s comments constituted threats.  The judge pointed to the superintendent’s comment that the union president’s statements during the Board meeting could be included in his evaluation if he did not apologize or retract his statement, that the Board of Education has “ways of dealing with situations like this,” and that the union president was “putting himself at risk as an employee.”  The Judge also concluded that the principal’s comments constituted threats.

Further, the judge reasoned that the superintendent and principal’s threats “would cause a reasonable employee to anticipate adverse consequences if she continued to participate in protected concerted activity because the impetus their threats was [the union president’s] protected activity.”

3.                  What are the limits to a Union’s protected activity?

The District argued that the union president’s comments at the May 1 Board Meeting should lose their protected status because they were “defamatory, malicious, and deliberately and maliciously false.”  The Judge considered whether the union president’s activity was conducted in such a manner as to lose protection.  She concluded that his statement at the Board Meeting “clearly indicated the existence of a labor dispute, as he addressed communications between the District’s BOE and the Union and bargaining unit members’ evaluations.”  Even though he later learned that he was incorrect about the superintendent putting negative comments in teacher’s evaluations, the judge reasoned, “[W]hether the statements were true or not is immaterial to this dispute because the evidence indicates [he] reasonably believed them to be true when he said them.”  Further, the judge concluded, “There is no evidence that anything [he] said during the public comment portion of the District’s May 1 BOE meeting was deliberately or maliciously false. Because the record indicates that [his] statements indicated the existence of a labor dispute and were not deliberately or maliciously false, they did not lose the protection of the Act.”

4.                  Practical Tips.

A.                Administrators must stifle the urge to take union activity personally.  These days, in the post-Janus world, Unions are fighting to demonstrate their value to employees and union members.  Some union leaders try to foment an “us against them” mentality between staff and administration.  Though it can be a challenge, administrators should fight the urge to take union activity personally.  Although we benefit from hindsight, it would have been better if the District sought a less confrontational approach.  According to the Labor Judge’s findings, the superintendent was worried about the impact the union president’s false comments would have on his reputation.  His solution made the proverbial mountain out of the molehill, and the findings of the labor board judge are potentially far more damaging to the superintendent’s reputation than the original comments.

B.                 Administrators must remember that every communication between an employer and an employee is governed by the law.  The principal apparently attempted to distinguish between her role as an individual on the one hand and her role as a principal and evaluator on the other.  Additionally, when the union president emailed the principal with his description of what had been said at the meeting, rather than correcting the record, she stated that she “did not believe [his] recollection of the meeting was accurate, that she would not submit her response via email and suggested he set up time to meet with her in person, so she could remind what was said and how/why it was said.”  Correcting the record immediately could have benefitted the District’s case if it varied from what the union president wrote in his email.

C.                 You catch more with honey…  Administrators should try to foster positive relations rather than emphasize confrontations.  Here, the (not so?) veiled threats took an already difficult relationship and made it worse.  At HLERK, when we devise labor relations strategies for our clients, we counsel our clients to focus on long term objectives.  Usually, it is in the long term best interest of the union to maintain positive, productive, and respectful relations with the union.

For decades, the attorneys at HLERK have helped our clients develop and maintain positive and productive relationships with their unions.  Contact Jeff Goelitz and Tony Loizzi for advice on fostering healthy and respectful relations with unions.  However, if the relationship breaks down and you find yourself in a situation where you need to litigate labor disputes contact Jason Manning or Jack Vrett.

[1] The recitation of facts below is derived from the Administrative Law Judge’s recounting of the credible evidence presented at the hearing.

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