Beware The Sounds of Silence

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In a time of budget cuts -- including cuts directed against public employees -- Griggsville Perry Community Unit School District v. Illinois Educational Labor Relations Board [pdf] may wind up offering important guidance to the state and local lawmakers. There, the underlying party worked as a noncertified paraprofessional for the plaintiff school district. After a long series of alleged complaints and counseling sessions, the school board informed the employee that she would be terminated. The employee's board president filed a grievance disputing the allegations of poor job performance, and appeared before the board, but the employee was terminated.

The matter then went to arbitration. First, the arbitrator sustained the grievance and directed that the employee be rehired. The matter went before the Educational Labor Relations Board, which remanded the case, but the arbitrator issued an amended decision and again ordered reinstatement. So the District filed a petition for review with the Appellate Court, which reversed in a sharply worded opinion.

Like most states, the baseline rule in Illinois is at-will employment. The arbitrator acknowledged that nothing in the union contract overrode that principle, but invoked "[the] bargaining history leading up to contractual silence" as grounds for implying a for-cause requirement.

The Appellate Court was decidedly unimpressed. After all, the contract included an integration clause. The bargaining history was irrelevant. And the Court didn't see anything particularly persuasive in the parties' bargaining history anyway: "The arbitrator's decision . . . is not supported by any past practice of the parties." Bottom line: there was nothing in the contract that overrode the at-will principle, so the "due process" the employee was given was more than enough. Justice McCullough dissented, finding that the arbitrator's decision "was drawn from the essence of the parties' collective-bargaining agreement."

So can courts go beyond the plain language of a collective bargaining agreement -- even beyond an integration clause -- to ponder the "sounds of silence"? We should find out within the next year.