STATE OF ILLINOIS

ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD

Elmhurst Teachers Council, West Suburban,

Teachers Union, Local 571, IFT-AFT,
Charging Party,

Elmhurst Paraprofessional and School

Case No. 2021-CA-0049-C
Related Personnel Council, West Suburban
Case No. 2021-CA-0050-C
Local 571, IFT-AFT,
Charging Party,
v.

Elmhurst Community Unit School District

No. 209
Respondent.

ELMHURST COMMUNITY UNIT SCHOOL DISTRICT 205

BOARD OF EDUCATION’S BRIEF IN OPPOSITION
TO THE UNION’S REQUEST FOR INJUNCTIVE RELIEF

INTRODUCTION

From the outset, Elmhurst Community Unit School District No. 205 (“District” or “Board”)

has been open and transparent with its community and its employees about its reopening plans, the

metrics being used for making decisions about return to in-person learning, and its extensive safety

protocols. The District also complied with every request by the leaders of its collective bargaining

units to bargain over health and safety impacts of reopening. Now, months after the Board adopted

local reopening metrics/factors (“D205 Metrics/Factors”), the Elmhurst Teachers Council (“ETC”)

and the Elmhurst Paraprofessionals and School Related Personnel Counsel, West Suburban

Teachers Union, Local 571, IFT-AFT, FL-CIO (“PSRP”), collectively referred to as the “Union,”

are attempting to have the IELRB determine whether the Board’s D205 Metrics/Factors for

reopening, which the Union never challenged, are appropriate and whether the D205

1
Metrics/Factors have been applied correctly, an issue over which the IELRB has no review

authority.

This case has significant consequences for students, families and communities served by

the District. The Union is asking no less than the right to run the District. They do so by asking the

IELRB to order that the Union has the right to bargain over the decision of whether to reopen

schools and that schools cannot open for in-person instruction until bargaining is completed; in

effect declaring they have the right now and, in the future, to decide whether learning is in-person

or remote. The Union’s request for preliminary relief must be denied because such extraordinary

relief would place student education and well-being in limbo until the unilateral demands of the

Union are met.

The District asks the IELRB to declare that the law, common sense and the exigencies of

the pandemic dictate that the decision to reopen - or not - rests exclusively with the Board of

Education and Superintendent. Indeed, this position is consistent with public statements made by

the Union conceding that the decision to reopen rests exclusively in the hands of the Board.

We hardly need the Union to remind us that we are in the midst of a global pandemic. The

Union ignores that the pandemic requires that the District balance the health concerns raised by

in-person learning with the very real educational and social emotional impact of remote learning

on students. The Union does not care about these competing interests, never acknowledging the

impact of closed schools on students in its Charge or its Position Statement filed in support of this

matter.

Guided by data and directives from the Illinois State Board of Education (ISBE), the

Illinois Department of Public Health (IDPH) and DuPage County Public Health Department, the

District successfully returned nearly 85% of its students to a hybrid learning program in September

2
and October 2020. Following an adaptive pause to remote learning in October, the District took

advantage of the new resources and information about COVID-19 to develop local metrics/factors

to guide the Board’s decisions about returning to in-person instruction. Despite notice of the

Board’s intent to adopt local metrics, a preview of the draft metrics/factors before the Board took

action, and notice of the Board’s action to adopt the metrics/factors, the Union did not demand to

bargain or otherwise seek to work collaboratively toward the goal of reopening classrooms. To the

contrary, the Union issued a written statement conceding that the decision on reopening schools

rests exclusively with the Board. A month later, the Unions filed ULP Charges arguing, falsely,

that they were not given this opportunity and that contrary to the law, the District must bargain

any decision to return to in-person instruction and cannot reopen schools until that process is

complete. The Union is seeking veto power over school reopening, wholly ignoring the needs of

students, families and communities and seeking to dictate reopening based on its unilateral

demands. Indeed, not only is the Union seeking to control the decision on returning to in-person

learning but is also seeking to dictate the timing of any return as it refuses to set new dates to

bargain, dragging its feet and stretching negotiations indefinitely.

The Union cannot satisfy either showing required for the issuance of preliminary relief.

There is no reasonable cause to believe that the IELRA was violated and further such relief is not

just and proper under the circumstances. For these reasons, the Union’s request should be denied.

FACTS
A. General Background

Elmhurst Community Unit School District 205 serves more than 8,000 students who reside

primarily in the City of Elmhurst and small portions of surrounding communities. The District

operates fourteen schools, including eight elementary schools, three middle schools, York

3
Community High School, a Transition Program, and the Madison Early Childhood Education

Center. The District employs approximately 1,160 employees.

B. Response to COVID-19 Pandemic and Learning Model

In March of 2020, upon issuance of Governor Pritzker’s disaster declaration and his

Executive Order closing schools, the District moved its entire educational program online and

completed the 2019-2020 school year through a remote instructional model.

At the close of the 2019-2020 school year and throughout the summer, the District focused

its efforts on reopening schools for its students; this was in keeping with ISBE’s direction to

prioritize in-person learning and the District’s knowledge that any delays in returning students to

classrooms was detrimental to advancing student growth and learning. Governor Pritzker’s

Restore Illinois plan strongly encouraged schools to reopen for in-person learning, the IDPH and

ISBE issued extensive guidance around the safe reopening of schools for the 2020-2021 school

year, and the District complied with those requirements.

In its efforts to reopen schools, the District formed an “Open D205 Committee” to allow

all stakeholders to work collectively to ensure the safe return to in-person learning. Exhibit 1,

Affidavit of David Moyer, ¶2. The ETC and the District together determined the membership of

the committee and of the 78 members, 40 were teachers, including the ETC President and several

other formal labor representatives. Id, ¶3. PSRP labor representatives were members of the sub-

committees. Id, ¶4. Ultimately, on July 14, 2020, the Board adopted a resolution approving the

D205 reopening plan that prioritized in-person learning while also recognizing the need for agility

and the ability to pivot quickly. Id, ¶5; Exhibit 2, BOE Resolution and Minutes 7/14/20. The

plan allowed for hybrid instruction to accommodate the over 85% of families who wanted

students in an in-person or hybrid learning model. Id. The resolution authorizes and directs the

4
Superintendent to implement and enforce the reopening plan and to modify the plan from time to

time as appropriate to facilitate the operation of the schools and the safety of students, staff,

visitors, and other participants in the District’ programs. Exhibit 1, ¶6; Exhibit 2. Any substantive

changes in the reopening plan must be made in consultation with the Board President and then

promptly reported to the Board to assess whether to act on the changes. Id. The resolution gives

the Superintendent the ability to shift from in-person to remote and back as conditions allow.

Exhibit 1, ¶7; Exhibit 2. The Union never made a demand to bargain the reopening plan or the

resolution authorizing the Superintendent to make changes under the plan. Exhibit 1, ¶8. In

August 2020, DuPage County Health Department released its Return to School Framework

containing recommendations for modes of learning based on DuPage County Metrics. Exhibit 1,

¶9.

Following the approval of the D205 reopening plan, the District and the Union met to

bargain over the impact of reopening. Exhibit 3, Affidavit of Luke Pavone, ¶2. During that

process, the Union never made a demand to bargain the reopening plan or the resolution

authorizing the Superintendent to make changes under the plan. Exhibit 1, ¶9. The focus of the

ETC was on teacher evaluation, sick leave, stipends for extra-curricular activities, teacher work

expectations, and safety. Exhibit 3, ¶3. The focus of the PSRP was on ensuring accommodations

for those with health conditions, protecting the number of work hours for employees, sick leave,

and safety. Id. At no time in these discussions did the Union assert that the District must bargain

the decision to reopen the schools for in-person learning; rather the Union’s position and focus

was on the impact of that decision. Id, ¶4. The District engaged in good faith negotiations with

both the ETC and PSRP which resulted in formal side letters with each addressing the impact of

reopening. Exhibit 4, ETC Side Letter 9/11/20; Exhibit 5, PSRP Side Letter 10/8/20.

5
 On September 2, 2020, students returned to campus in the District. Exhibit 1, ¶7. Shortly

thereafter, District 205 became the first district in DuPage County to have all grade levels back

on campus for in-person learning. Id.

The District implemented extensive safety/mitigation measures for the return to school

including:

● Wearing of face coverings while on District property

● Providing PPE for teachers and staff
● Social distancing maintained whenever possible
● Hand washing and sanitizing throughout the day
● Home symptom and temperature screening
● Visitor health screening
● Travel screening
● Health monitoring and interventions for students or staff experiencing symptoms
● Early Childhood safety guidelines
● Creating hybrid schedules for students to enable the maximum adherence to safety
protocols

Exhibit 6, Open D205 Plan.

On October 21, 2020, the District implemented an adaptive pause based upon DuPage

County health metrics and transitioned to a fully remote learning program. Exhibit 7,

Superintendent Communication 10/16/20. During the open session of the Board meeting on

October 27, 2020, the Superintendent and Board discussed developing local metrics based on

newly available data to assess how the District schools could safely reopen even if DuPage

County was in the “substantial” risk of transmission category. 1 Dr. Moyer explained that the

District was developing new criteria for reopening that focused more specifically on the metrics

within the District community rather than the county at-large. Id. This would give the District

the ability to look at local trends and make more informed and targeted decisions regarding

reopening. Id.

1Video of the 11/17/2020 Board meeting is available at

https://go.boarddocs.com/il/elmhurst/Board.nsf/Public Discussion begins at 1:05:00.

6
 The following day, October 28, 2020, ETC President Max Schoenberg sent a

communication to the Superintendent about the Board’s consideration of new metrics for

reopening. Exhibit 8, Email from Union 10/28/20. In this email, Mr. Schoenberg stated that he

could not promise the Union’s agreement with the metrics and that the Union might demand to

“bargain over the impact on health and safety conditions” which the Union considered mandatory

subjects of bargaining. Id. (emphasis added).

On November 5, 2020, the Superintendent and members of his administrative team met

with the Union President and the Union’s executive board to give the Union advance notice of

the metrics and factors the administration would be recommending for Board consideration and

adoption at the upcoming Board meeting on November 17, 2020. Exhibit 1, ¶8; Exhibit 9,

Meeting Invitation 11/5/20. During that meeting, the draft metrics/factors were shared with the

Union leadership even though they had not yet been shared with the Board. Exhibit 1, ¶9. At no

time in that discussion did the Union challenge either the right of the Board to adopt the metrics,

nor did it challenge or ask to bargain the metrics themselves or suggest alternative metrics for the

District to consider. Id, ¶10. During the meeting, the Superintendent explained that the metrics

were designed to have multiple factors and flexibility so that if the local metrics, including the

factors, supported reopening, the District would not be tied to the overall metrics throughout

DuPage County in assessing whether to return to hybrid instruction. Id, ¶11. Notably, during

that meeting, the Union President asked the Superintendent how the draft metrics/factors would

be presented and acted upon. Id, ¶12. The Superintendent responded that they would be presented

to the Board for a vote at the next Board meeting. Id.

On November 13, 2020, Union leadership published a statement on social media related to

the Board’s decision to take an adaptive pause to remote learning stating “[t]he Board, not the

7
Union, has the authority to make such a decision.” Exhibit 10, Union Statement 11/13/20. The

public statement further states “[t]he public policy question before the Board is how health metrics

affect the timing of when to switch District 205 back to hybrid learning. Again, this is a decision

for the Board, not the Union. On November 17, the Board might consider adjusting its course

of action on reopening to partially take into account some local data. If any parents have opinions

on that matter, please direct that feedback to the Board.” Id. (emphasis added)

On November 17, 2020, the Board approved the D205 Metrics/Factors for decisions on

Hybrid/Remote Learning (“D205 Metrics/Factors”). Exhibit 11, BOE Metrics/Factors Approval.

The Board’s adoption of the D205 Metrics/Factors was consistent with the DuPage County

Guidance for Schools and the public health department’s guidance that school district decisions

should incorporate localized epidemiological factors as an additional tool to assess return to

school. Exhibit 12, DuPage County Health Guidance. The D205 Metrics/Factors are as follows:

Hybrid learning will be implemented if either of the following metrics applies. If

neither of the metrics applies, remote learning will be implemented. However, the
following factors will also be considered and may be applied to choose either hybrid
learning or remote learning as most appropriate to achieve a high degree of safety
for students and staff and effective learning for students.

Metrics:
1. The DuPage County Health Department reports either Minimal or Moderate
Community Transmission risk under its COVID School Metrics Guide; or
2. The District 205 seven‐day average for COVID cases per 100,000 is below
100 and the District 205 seven‐day average positivity rate is below 8%. For
purposes of applying this metric, the averages will be based on the rolling
average number of positive COVID tests per day and the rolling average
COVID positivity rate data from the Northwestern Medicine COVID
Dashboard for United States Postal Service zip codes 60126, 60106, 60101
and 60523, weighted to reflect the proportion of District 205 within such
zip codes.

Factors:
1. Positive student COVID tests or diagnoses‐number per week and
percentage as a whole and against previous week.

8
 2. Positive staff COVID tests or diagnoses‐number per week and percentage
as a whole and against previous week.
3. Number of outbreaks at school per week and as compared to previous week.
4. Number of cases with transmission linked to District per week and as
compared to previous week.
5. Student absenteeism trend.
6. Staff absenteeism trend.
7. Ability to contact trace, given the then current contact tracing employment
level.
8. Implementation and compliance with safety measures at school.
9. Size of instructional groups.
10. Characteristics and needs of instructional groups.
11. Testing Data on students and staff if testing is implemented.
12. Illinois Department of Health regional classification for DuPage County.

Exhibit 13.

When adopting these metrics and factors, the Board discussed, in open session, that the District

had incorporated into the D205 Metrics/Factors the necessary flexibility so that the Board and

administrators could assess the situation in real time and look at a variety of components when

determining a safe reopening or a return to remote learning. 2

On November 18, 2020, Dr. Moyer approved the return to in-person learning for

approximately 200 students with disabilities. Exhibit 1, ¶16. On November 30, 2020, staff and

teachers who served these students returned to the classroom for in-person learning. Exhibit 1,

¶16.

As the Union publicly conceded on November 13, before the D205 Metrics /Factors were

adopted, the Board, not the Union, has the authority to make decisions concerning remote versus

hybrid learning. Exhibit 10. Even before the IELRB the Union admits that it did not demand to

bargain about the decision to use both county and local metrics approved by the Board on

November 17 to implement remote or hybrid learning “because it did not object to them.” Exhibit

2Video of the 11/17/2020 Board meeting is available at

https://go.boarddocs.com/il/elmhurst/Board.nsf/Public Discussion beginning at 1:13:00.

9
14, Affidavit of Max Schoenberg, ¶12 (exhibits omitted). The same is conceded in the ULP

Charges that state that the Union “did not demand to bargain about these decisions [regarding

adoption of metrics and factors] because it thought they were appropriate and proper . . .” Nor

did the Union demand to bargain the return of the students with disabilities in November. Exhibit

1, ¶16.

Then, on December 10, 2020, nearly a month later, the Union sent a request to Dr. Moyer

asking to discuss only two issues related to reopening: finding substitutes for teachers on leave due

to medical accommodations and the extension of child care leave with the expiration of FFCRA.

Exhibit 15, Email from Union 12/10/20. The District received no bargaining-related

communication from the PSRP. To be clear, neither Union sent a demand to bargain the Board’s

decision on the D205 Metrics/Factors to be used to determine reopening.

On December 15, 2020, the Board approved a plan to return to a hybrid learning program,

with a plan for approximately 85% of District students to return to the school buildings on January

11, 2021, two to three days per week. Exhibit 16, BOE Approval of Reopening. This plan was

based on guidance from the DuPage County Health Department, as well as the D205

Metrics/Factors. Dr. Moyer sent out a letter to faculty and staff identifying that the Board approved

D205 Metrics/Factors supported a return to in-person instruction. Exhibit 17, Moyer Letter

12/16/20. Specifically, he identified the following which served as a basis for the District’s

decision:

1. The D205 seven‐day average positivity rate was below 8% and was declining;
2. There have been no outbreaks in D205 schools;
3. Student absentee rates were low (the average attendance rate across all grade levels
is 98.7%);
4. D205 would have contact tracing positions filled in January;
5. D205 has effectively implemented and complied with safety measures at school;
and
6. The size of instructional groups has and would allow for social distancing.

10
Id. The following day, December 16, the ETC filed a grievance alleging a violation of Section

4.12 of the Negotiated Agreement which states “The Board shall make every effort to maintain

safe and healthy conditions in all room and buildings for students and staff.” Exhibit 18, ETC

Grievance. The ETC grievance further alleged “a violation of the metrics for determining hybrid

learning as approved by a 7-0 vote of the Board of Education on November 17, 2020.” Id. The

remedy requested is that the “District abide by its own adopted metrics, and only return to hybrid

instruction when appropriate to do so using county and local metrics to be agreed upon through

bargaining with the Union” even though the Union had accepted the D205 Metrics/Factors and

made no demand to bargain. Id.

The PSRP also filed a grievance following the return of special learning populations to in-

person instruction, alleging a violation of Section 10.9.1 of the negotiated agreement which states

that the “The Board shall make every effort to maintain safe and healthy conditions in all rooms

and buildings for students and staff.” Exhibit 19, PSRP Grievance. The grievance claims that

physical distancing and universal use of face coverings are not able to be followed and that the

PSRP President was not kept informed of the buildings in which someone had tested positive for

COVID-19. Id. The grievance meeting on January 6, 2020, was the first time that the PSRPs

raised concerns about mask compliance and ventilation issues which they set forth in the employee

statements attached to the Union position statement. Exhibit 20, District Email to PSRP 1/7/21).

C. Union Demand and ULP

Following the District’s announcement of the return to the hybrid learning model, the

Union demanded to bargain over health and safety conditions, including the topic of health metrics,

and submitted a number of questions related to health and safety. Exhibit 21, Union Demand

12/16/20. The District agreed and a bargaining session was held on December 28, 2020. During

11
that bargaining session, the Union presented written proposals related to the expiration of child

care leave under FFCRA and the Parties engaged in a lengthy discussion about the issue and the

impact on the staff. Exhibit 3, ¶8. The second issue raised by the Union concerned the health and

safety questions submitted on December 16 related to a “hazard assessment” and the HVAC

systems. Lastly, the Parties discussed the pending grievances. Id. During the discussion of the ETC

Grievance, the Parties discussed the status of hiring a contact tracer, testing issues and concerns

with the self-certification process. Id. With respect to the metrics and factors, the Union questioned

whether the Board disregarded the approved D205 Metrics/Factors when it voted to return to

hybrid instruction effective January 11, 2021. Id. At no time during that session did the Union

assert that the District had a duty to bargain the actual metrics/factors for reopening or the duty to

bargain the application of those metrics/factors. Id. Rather, the sole issue raised related to whether

the Board’s decision to reopen school on January 11 was in line with the Board approved D205

Metrics/Factors. Id.

The Union did not request additional bargaining sessions at the conclusion of the December

28 meeting. Hearing nothing from the Union, the District reached out requesting that the Parties

continue to meet. Id, ¶9.

On December 29, 2020, the day after the Parties were engaged in what the District believed

to be good faith bargaining over the issues raised by the Union, the Union filed the Charges with

the IELRB seeking injunctive relief. The Charges allege that the District unilaterally developed

and implemented the metrics for reopening without notice to the Union and without giving them a

chance to bargain and arguing that the actions violated the District’s obligations to bargain over

decisions affecting the health and safety of bargaining members.

12
 A second bargaining session was held on January 7, 2021. Exhibit 3, ¶10. During that

session, the Parties reached a general agreement related to the impact of the expiration of FFCRA

on teachers with child care issues since the District was returning to a hybrid instructional model

on January 11, 2021. Id. The District also provided an update related to the Union’s request for a

hazard assessment. Id. When asked if the Union had any additional issues to raise, the ETC asked

only for clarification around quarantine recommendations for staff following travel over winter

break. Id. At no point during that session did the Union seek to bargain the metrics for reopening,

the decision to reopen, or the impact of reopening other than related to child care issues. Id., ¶11.

To date, the Union has not sought to schedule another bargaining session or submitted any

proposals related to health and safety. Id., ¶12.

D. Current D205 Metrics/Factors

The D205 Metrics/Factors for the week ending January 15, 2021 support the Board’s

decision to return to hybrid learning on January 11 and the continuation of hybrid learning.

Specifically, the D205 seven‐day average positivity rate is below 8%; there have been no outbreaks

in D205 schools; there have been no cases of transmission linked to D205 schools; 94% of students

and staff were present this week; the District is in the final stages of hiring contact tracers; D205

had effectively implemented and complied with safety measures at school; and the size of

instructional groups allows for social distancing. Exhibit 22, Affidavit of Kevin Rubenstein.

ARGUMENT

I. There is No Reasonable Cause to Believe the Act Was Violated

The Union has not established that there is reasonable cause to believe the Illinois

Educational Labor Relations Act was violated. Reasonable cause that the Act was violated

requires more than simply the issuance of a complaint for hearing. SIUE Bd. of Trustees

13
(Edwardsville), 18 PERI ¶1168 (IELRB 2002). Under Section 15 of the Act, a complaint shall

issue “[i]f the Board after investigation finds that the charge states an issue of law or fact.” 115

ILCS 5/15. While the jurisdictional prerequisite for preliminary relief under the Act is the issuance

of a complaint, under Section 16(d) of the Act, the party seeking preliminary relief must establish

a significant likelihood of prevailing on the merits. Moraine Valley, 5 PERI ¶1138 (IELRB 1989);

Chicago Bd. of Educ., 3 PERI ¶1111 (IELRB 1987). The Union has not provided evidence that

there is reasonable cause to believe the Act was violated. At minimum, there are issues of both

law and fact pending that preclude such a finding without further evidentiary hearing.

The Union’s Sections 14(a)(1) and (5) claims consist of an allegation that the Board failed

to bargain over decisions affecting the health and safety of bargaining unit members when it

changed the criteria it set for resumption of hybrid learning without notice and without any

meaningful opportunity to bargain. Section 14(a)(1) prohibits educational employers and their

agents or representatives from “interfering, restraining or coercing employees in the exercise of

the rights guaranteed under [the] Act.” 115 ILCS 5/14(a)(1) Section 14(a)(5) prohibits educational

employers and their agents or representatives from “[r]efusing to bargain collectively in good faith

with an employee representative which is the exclusive representative of employees in an

appropriate unit.” 115 ILCS 5/14(a)(5). The Union fails to demonstrate the existence of

reasonable cause to believe Section 14(a)(1) or (5) were violated in any of these respects.

A. There is No Reasonable Cause to Believe the District Violated the Act by Adopting
and Implementing its Reopening Metrics

In its Position Statement filed in this matter, the Union alleges that the District had an

obligation to bargain in good faith before unilaterally determining and implementing the criteria

for resuming in-person instruction in the District. It then ties that allegation to the argument that

the District must bargain over safety and health issues. While such an argument regarding

14
bargaining over health and safety may have been persuasive in other cases recently before the

IELRB, it fails here for the following reasons: (1) to the extent that a right to bargain the adoption

of the metrics exists, a concept the Board rejects for the reasons set forth later in this brief, the

Union has waived its right to do so and, alternatively, if no such right to bargain exists, the Union

has also waived its right to contest the D205 Metrics/Factors and reopening decisions; (2) the

IELRB is an improper venue for the Union to contest the District’s implementation of the D205

Metrics/Factors and the Union does not have a right to bargain each application of the D205

Metrics/Factors; (3) the D205 Metrics/Factors have been met and this matter is moot; and (4) the

District has bargained the health and safety impacts of reopening in good faith.

1. There is No Reasonable Cause to Believe the District Violated the Act Because the
Union Has Waived Its Right to Contest or Bargain the D205 Metrics/Factors

Despite having significant time and ample notice to do so, the Union’s Charges and the

affidavit of the ETC President confirm that the Union did not demand to bargain over the Board’s

adoption of the D205 Metrics/Factors and in fact make clear that the Union accepted them. Exhibit

14, ¶12; ULP Charges. Indeed, in October, prior to the adoption of the D205 Metrics/Factors, the

Board discussed the adoption of new metrics in open session. As evidenced by the Union’s

communication to the Superintendent, the Union was aware on October 28, 2020, of the Board’s

intent to adopt local metrics for reopening. The Union did not challenge the District’s right to do

so, contest the metrics, or ask to bargain the metrics. Then in November, the District administration

met with Union leadership to provide them with the proposed metrics in advance of the November

17 Board meeting at which the D205 Metrics/Factors were adopted. At no time in that discussion

did the Union challenge the Board’s right to adopt these metrics, nor did it contest the metrics, or

ask to bargain the metrics. To the contrary, the Union issued a public statement on November 13

conceding that the decision on reopening schools rests exclusively with the Board and forecasting

15
that the Board may adopt local metrics at the upcoming Board meeting. Five days later, and with

more than a month of prior notice to the Union, the Board formally adopted the D205

Metrics/Factors in open session. Again, the Union did not challenge the right of the Board to adopt

the metrics, nor did it contest the metrics, or ask to bargain the metrics. Indeed, the Union accepted

the D205 Metrics/Factors.

Almost a month after the Board’s adoption of the D205 Metrics/Factors, the Union issued

a demand to bargain related to the expiration of FFCRA. To be clear, the Union did not challenge

the D205 Metrics/Factors or demand to bargain the decision to reopen to in-person instruction at

that time. It was only following the District’s announcement of the return to the hybrid learning

model (but before the first bargaining session related the foregoing issue) that the Union issued a

demand to bargain over health and safety conditions, including the topic of health metrics.

Surprisingly though, even during the bargaining that followed, the Union did not seek to bargain

the metrics for reopening, the decision to reopen, or the impact of reopening other than related to

child care issues. In fact, since the bargaining session held on January 7 that was initiated by the

District, the Union has not sought to schedule another bargaining session or submitted any

proposals related to health and safety.

Therefore, to the extent this Charge is based on the District’s “determining” of the criteria

for reopening, the Union has already conceded that it has no authority over that determination, did

not contest the metrics, did not demand to bargain over the D205 Metrics/Factors and that, in fact,

the Union did not oppose the metrics. While the District disagrees that it has to bargain the criteria

for reopening with the Union, any argument that the District violated the Act by not bargaining

the D205 Metrics/Factors is baseless where there was adequate notice of the intent and adoption

of the metrics but no demand to bargain until well after the decision was made. Without a demand

16
to bargain, the Union has waived any right to raise this claim. Northern Illinois University, 2 PERI

¶ 1118 (IELRB 1986) (...a union which has been adequately informed of the nature and effect of

a proposed decision waives its right to bargain if it fails to make a timely demand to bargain over

that decision and/or its impact.”); Cahokia Community Unit High School District 187, 7 PERI ¶

1083 (IELRB 1991) (...“if an exclusive representative has notice of an employer’s proposed action

and fails to demand bargaining, the employer may act unilaterally”); Waverly Community Unit

School District No. 6, 5 PERI ¶ 1002 (IELRB 1988) (school district did not violate Act because

union never properly demanded bargaining).

To the extent that the Union’s demand to bargain “health and safety conditions” included

a demand to bargain the substance of the D205 Metrics/Factors, the request came a month after

adoption by the Board (and indeed more than a month after the Union was first shown a draft of

the metrics) and is therefore untimely. Waverly Community Unit School District No. 6 (“the

Association had an obligation to act with reasonable diligence in demanding bargaining.”)

(emphasis added). Given the need to quickly pivot during a pandemic makes even a month delay

untimely.

In any event, once the Parties met, it became clear that the Union was not interested in

negotiating the substance of the D205 Metrics/Factors. The single inquiry raised by the Union on

this issue during the December 28, 2020 session was whether the Board’s decision in December

to reopen schools was in line with the D205 Metrics/Factors. There was no mention of the D205

Metrics/Factors by the Union during the January 7, 2021 session. Since that session, the Union has

not sought to schedule another bargaining session or submitted any proposals related to health and

safety.

17
 With such a waiver, the Union cannot establish a violation of the Act. At most, there are

issues of law and fact over whether the Union waived its right to bargain precluding a finding that

the Act was violated. Barry Community Unit Sch. Dist.1, 15 PERI ¶1604 (IELRB 1998);

Community College Dist. No. 508 (City Colleges of Chicago), 9 PERI ¶1139 (IELRB 1993).

2. There is No Reasonable Cause to Believe the District Violated the Act Because the
Union Cannot Contest Implementation of the District’s Metrics Through a ULP

Because the Union accepted the D205 Metrics/Factors, the Union is left with the assertion

that the District needed to bargain the implementation of the metrics. Put another way, the Union

is asserting that the District committed an unfair labor practice when it did not bargain with the

Union over whether or not the D205 Metrics/Factors had been met. The Union cites no support

for this proposition and indeed there is none.

During the presentation and discussion prior to the Board’s adoption of the D205

Metrics/Factors, the Superintendent and Board made clear that the metrics and factors that were

incorporated into the final metrics, which are based on county health guidance, provide flexibility

for the District to look at a variety of data points to determine the safety of reopening schools.

Indeed, the Superintendent raised the possibility that the metrics and factors might support a

“surgical” closure of some schools within the District but not others. Again, the Union never

contested the metrics before they were adopted or when the Board took public action adopting the

D205 Metrics/Factors.

Now, the Union is trying to shoehorn the IELRB’s recent rulings regarding bargaining

health and safety to suggest that the Union has a right to bargain each and every time the Board

applies these metrics. As described more fully below, those rulings are inapposite because here

the District has bargained with the Union over health and safety issues related to reopening and

continues to do so to the extent the Union raises such issues. Moreover, if the Board is required

18
to engage in protracted bargaining with the Union each time it decides to reopen schools, the

schools would never reopen or only after weeks of delay. The purpose and goal of adopting the

D205 Metrics/Factors was to give the District the flexibility to make decisions, in real time, as

conditions allow for reopening. To assert otherwise would hold the Board hostage to the Union’s

unilateral demands related to reopening.

At most, the issue of whether the District properly applied the D205 Metrics/Factors is a

matter for the grievance process. If the Union believes that the District, through misapplication of

the D205 Metrics/Factors, violated the terms of the collective bargaining agreement, specifically

Article 10.9.1 in the PSRP agreement and Article 4.12 in the ETC agreement which require the

District make efforts to maintain safe and health conditions, that is a matter for an arbitrator, not

the IELRB. Moraine Valley Community College, 2 PERI 1050, (ILERB 1986); see also Waverly

Community Unit School District No. 6, 5 PERI 1002 (ILERB 1988) (“it is not our province or role

to interpret the parties’ agreement. That task is for an arbitrator, not this Board.”). Indeed, the

Union has already filed grievances in this matter asserting those claims. The nature and scope of

such a grievance is likely subject to disagreement among the Parties but, in any event, the IELRB

is not a proper venue for this dispute.

If the IELRB finds that this is an appropriate matter for its review, then there is a dispute

of fact over whether the D205 Metrics/Factors have been met and support the current reopening

plan and injunctive relief is not appropriate.

3. There is No Reasonable Cause to Believe the District Violated the Act Because the
D205 Metrics/Factors Are Met and This Matter is Moot

When the District made the decision to return to in-person learning, the D205

Metrics/Factors had been met. Specifically, the D205 seven‐day average positivity rate was below

8% and was declining; there had been no outbreaks in D205 schools; student absentee rates were

19
low (the average attendance rate across all grade levels was 98.7%); D205 planned to have contact

tracing position filled in January; D205 had effectively implemented and complied with safety

measures at school; and the size of instructional groups was allowing for social distancing.

Contrary to the Union’s baseless assertion, the District has not “abandoned public health

principles” - rather, it has applied the D205 Metrics/Factors as written and adopted and will

continue to monitor the metrics and factors to determine the course of in-person learning. Such

determination is contemplated by the D205 reopening plan and related resolution adopted in July

2020, with no objection from the Union. Again, any dispute over the metrics is an issue of fact

that precludes a finding in favor of injunctive relief.

It is critical to note that the reopening plan was approved in December, approximately 30

days before the planned reopening of schools. In order to facilitate reopening, the District must

set out a target date for resuming in-person instruction that provides sufficient planning time for

staff and families. Thus, it is likely that the metrics/factors on the date the decision for reopening

is made may change prior to reopening and the Board must be able to amend reopening plans

accordingly. As of the date of this filing, the D205 Metrics/Factors support the Board’s decision

to return to hybrid learning on January 11 and to continue with hybrid learning. Specifically, the

D205 seven‐day average positivity rate is below 8%; there have been no outbreaks in D205

schools; there have been no cases of transmission linked to D205 schools; 94% of students and

staff were present this week; the District is in the final stages of hiring contact tracers; D205 had

effectively implemented and complied with safety measures at school; and the size of instructional

groups allows for social distancing.

20
 4. There is No Reasonable Cause to Believe the District Violated the Act Because the
District Has Bargained, to Resolution, the Health and Safety Impact

The District has acknowledged its obligation to engage in bargaining with the Union over

the impact of a return to in-person instruction. In the summer of 2020, the Board’s goal was to

return to in-person learning. At that time, the Union, conceding that it did not have the right to

bargain the decision, issued a demand to bargain the impact of that decision through the

presentation of a draft side letter. Exhibit 23, Email from Union 7/6/20 with Proposed Side Letter.

The Parties then engaged in extensive negotiations that resulted in a side letter with the ETC and

a side letter with the PSRP. Those remain largely in effect and there are no allegations in the

Charges that the Board has in any way violated the terms of those side letters. In November 2020,

the District provided the Union with a clear set of metrics and factors that would support any return

to in-person instruction. On December 10, 2020, the Union issued an updated demand to bargain

related to the impact of the expiration of FFCRA leave on staff with childcare needs. Before the

Parties could meet on that issue, the Union issued a demand to bargain related to “health and safety

conditions.” The District again engaged in good faith bargaining with the Union working towards

agreement on all issues raised by the Union during bargaining. Notably, however, the only relevant

issue raised by the Union during bargaining was whether the Board disregarded the D205

Metrics/Factors in authorizing a return to in person instruction on January 11. In other words, at

the table where it matters most, the Union has never asserted a right to bargain the metrics, and

only tacitly raised the issue of the Board’s application of the D205 Metrics/Factors. Since January

7, the Union has not sought to continue bargaining or presented any proposals related to health and

safety. Amazingly the Union requests that the IELRB require the District to bargain in good faith,

while at the same time seemingly refusing to bargain. If the Union asserts otherwise, this raises

another unresolved issue of fact.

21
 The Union asserts that health and safety issues are mandatory subjects of bargaining. As

set forth below, the District’s position is that the decision to reopen schools falls within inherent

managerial authority but that it is required and has complied with its responsibilities to bargain the

impact of the decision to reopen. Indeed, the Union itself concedes that the authority over this

decision rests exclusively with the Board and that it never asserted a right to bargain over the

decision to reopen. Exhibit 10.

Contrary to the Union’s argument, the decisions in Western Illinois University,

____PERI____, Case No. 2021-CA-0009-C (September 17, 2020) and Proviso Township High

School District 209, ___ PERI___, Case No. 2021-CA-0041 (November 5, 2020) do not support

its assertion of any actionable offense in this matter. In both of those cases, the IELRB held that

the employer was obligated to bargain over health and safety issues. Here, the District has done

so, has governing side letters with both the ETC and PSRP, and stands ready and willing to meet

to discuss issues when requested by the Union. 3

To the extent that the Union is alleging that these cases support the assertion that the

District should have provided notice and an opportunity to bargain prior to making its decision

about reopening, it is clear that such notice and opportunity to bargain was provided prior to and

after adoption of the D205 Metrics/Factors, the Union did not demand to bargain and that the

Union has waived any such argument. When the District made its initial decision to reopen in the

summer of 2020, the Union was openly opposed and publicly announced its position that the

District should remain in an entirely remote instructional model. Despite its opposition, the Union

never contested the Board’s right to make the decision regarding reopening but rather sought

3 In the Proviso case, the Board also found that the District had not complied with the applicable
Memorandum of Agreement that the parties had negotiated which called for advance notice of a
reopening decision; there is no allegation in this case that the District violated the terms of the side letters
with the Union.

22
impact bargaining only. When the District then made a decision to return to remote learning in late

October, the Union did not assert that the District had violated the Act by failing to provide notice

and an opportunity to bargain this change. Indeed, the Union’s November 13 public statement

states twice, that “the Board, not the Union, has the authority to make the [reopening] decision.”

Exhibit 10. When the District adopted the D205 Metrics/Factors that would govern its decision

on a return to hybrid instruction five days later, the Union did not object nor did it assert its right

to be engaged in those decisions. The idea that the District engaged in an unfair labor practice by

not bargaining over its current decision to reopen when the Union did not assert any such right

previously and indeed conceded that it did not have such a right, is ludicrous. In effect, the Union

is suggesting that the District somehow had to intuit that the Union’s position had changed on this

matter despite its clear actions and public statement to the contrary. The District is under no such

obligation when the Union has waived its right, as it has in this case.

B. There is No Reasonable Cause to Believe the District Violated the Act Because the
Decision to Return to In-Person Instruction is an Inherent Managerial Right

The District’s top priority has always been to provide students with a world-class education

while keeping its communities healthy and safe. Because of the hard work of educators and school

leaders and staff, the District was able to effectively and safely run a hybrid learning model during

the fall of 2020 which allowed students to engage in in-person learning. The District shifted to

remote learning during an adaptive pause to hybrid learning. However, remote learning cannot

replace a traditional classroom, particularly for students who have special educational needs, are

English learners, or have other risk factors. As a matter of educational growth for all students and

as a matter of equity, it is important to offer in-person learning to ensure these students can

continue to learn and thrive. Indeed, the District brought 200 high-needs students back in

November in order to better support these students educationally and the Union did not object to

23
this return or assert it needed to be bargained. Based on its Board-approved D205 Metrics/Factors,

the District decided to resume a hybrid learning model for all students beginning January 11, 2021.

The District has the inherent managerial right to decide if instruction is in-person or remote.

An educational employer’s inherent managerial authority stems from Section 4 of the

IELRA which states: “Employers shall not be required to bargain over matters of inherent

managerial policy, which shall include such areas of discretion or policy as the functions of the

employer, standards of services, . . . and direction of employees.” 115 ILCS § 5/4. This provision

of the IELRA is embodied in Article 2 of the Parties’ collective bargaining agreements (Managerial

Rights).

The decision as to whether a school building is opened for students and whether teachers

will be required to work on site is a matter of inherent managerial authority. Boston Teachers

Union v. Martin, et al, 2084-2324-C, p.12 (Comm. of Mass) (October 14, 2020) (the court

recognized “the customary management right to determine when teachers will and will not be

required to work on-site.”). Indeed, the Union concedes the point that it did not demand to bargain

over the District’s original decision to reopen and that such decision rests exclusively with the

Board. Exhibit 10

Further, the Board does not have a duty to bargain over how it directs its employees (i.e.,

the ability to require its employees to report to their assigned schools in order to accomplish

necessary functions to educate students), see, e.g., Sherrard Community Unit School District 200

& Sherrard Education Association, IEA-NEA, 13 PERI 1003 (IELRB 1996) (holding that that

employer’s decision not to transfer a teacher to a different work location was a matter of inherent

managerial policy and thus not a subject of mandatory bargaining). As the pandemic is on-going,

the District must weigh a myriad of competing issues to determine when and how to return students

24
to the classroom. Because this decision is an inherent managerial right, the benefits that bargaining

over the decision would have on the District’s decision-making process is balanced against the

burdens that bargaining would impose on the District’s managerial and decision-making process.

Community College District 508 (City Colleges of Chicago), 13 PERI ¶ 1045 (IL LRB SP 1997).

The balance favors an employer’s unilateral authority when the employer’s decision

concerns policy matters that are intimately connected to its governmental mission or where

bargaining would sharply diminish its ability to effectively perform the services it is obligated to

provide. Chief Judge of the Circuit Court of Cook Cnty., 31 PERI ¶114, citing Village of Franklin

Park, 8 PERI ¶2039 (IL SLRB 1992) (“the scope of bargaining in the public sector must be

determined with regard to the employer’s statutory mission and the nature of the public service it

provides.”). The labor boards and reviewing courts also consider whether the employer has any

special need for speed or flexibility in making certain policy decisions when determining this

balance of interests. See, e.g., Chicago Park Dist., 354 Ill. App. 3d 595, 604 (2004).

Here, the District must consider information provided by public health officials, with the

very real educational, social emotional, and safety impact that being out of schools has on its

students, and the impact on parents, particularly the economic impact, as students remain out of

school. There is no more obvious managerial function, because it requires weighing a number of

competing interests: those of the teachers and staff; of the students and their parents; and of society

at large. Indeed, the need to educate children is the greatest of these interests. In stark contrast, the

Union has only one interest: that of its members. Having to bargain this decision with the Union

would harm the District’s ability to weigh all of these factors and to make decisions with the speed

and flexibility needed as conditions on the ground change. While the Union stresses that health

and safety issues are mandatory subjects of bargaining, the decision at issue is about the return to

25
in-person learning. While the Union has a right to demand to bargain over the health and safety

impact of the decision, it has no right to bargain the decision to return to in-person instruction

itself.

C. Disputed Issues of Fact and Questions of Law Preclude a Finding of Reasonable

Cause to Believe that Section 14(a)(1) and (5) were violated.

Alternatively, there is no reasonable cause to believe that Section 14(a)(5) and (1) have

been violated because there are disputed issues of fact and law presented in this case. The IELRB

has consistently held that a significant likelihood of prevailing on the merits does not exist where

critical facts and issues of law are in dispute. See Barry Community Unit Sch. Dist. 1, 15 PERI

¶1064 (IELRB 1998).

As set forth throughout this brief, the determination of whether the Board violated Section

14(a)(1) and (5) when it adopted the D205 Metrics/Factors or when it implemented the D205

Metrics/Factors is directly dependent on a determination of whether the Union waived its right to

bargain the criteria, whether the Board was obligated to bargain the application of the criteria,

whether the Board bargained the health and safety issues in good faith, and whether the decision

to reopen rests exclusively in the hands of the Board. Indeed, even the issue of what is the status

quo remains open. What practices constituted the status quo in both respects is a fact intensive

inquiry that must be made on a case-by-case basis, as the IELRB and the Illinois courts have

repeatedly held. See Vienna, 3 PERI ¶1008 (IELRB 1986)(holding that, in cases involving the

determination of the status quo, “Each case, therefore, must be decided on its particular facts.”),

aff’d, 515 N.E.2d at 480 (“We hold, however, that this concept of status quo involves a subjective

determination and, as such, must be made on a case-by-case basis.”).

Given the outstanding facts and issues of law, the IELRB cannot conclude that there is

reasonable cause to believe that the Act was violated. See Morton Council Teachers Un., Local

26
571, IFT/AFT and Morton High Sch. Dist. No. 201, 2010 IL ERB LEXIS 25 (IELRB 2010)

(disputed factual issues preclude injunctive relief regarding alleged unilateral changes). Therefore,

injunctive relief is not appropriate in this matter.

II. Preliminary Relief is Not “Just and Proper” Under the Circumstances

The Union also cannot demonstrate that preliminary relief is just and proper in this matter.

In determining whether preliminary relief is appropriate, there must be a determination that such

relief is “just and proper under the circumstances.” DeKalb Community Unit Sch. Dist. No. 42, 3

PERI ¶1035 (IELRB 1987). In determining whether injunctive relief is just and proper, the IELRB

considers whether an injunction is necessary to prevent frustration of the basic remedial purposes

of the Act; the degree, if any, to which public interest is affected by a continuing violation; the

need to immediately restore the status quo ante; whether ordinary IELRB remedies are inadequate;

and whether irreparable harm will result without preliminary injunctive relief. Univ. of Ill.

Hospital, 2 PERI ¶1138 (IELRB 1986). All of these factors weigh against the issuance of

injunctive relief in this matter.

A. Preliminary Relief Will Not Further the Act’s Remedial Purposes

The Union seeks injunctive relief stopping the District from reopening schools. However,

decisions on where instruction is to take place, whether remote or in-person, is, by statute, a

decision the Board is authorized to make. Indeed, the Union has conceded this point. The IELRB

cannot provide relief that contradicts this statutory authority. Preliminary relief is inappropriate

because it interferes with the framework created by the Illinois General Assembly in Section 4 of

the Act.

Moreover, where the Union has waived the right to bargain over the D205 Metrics/Factors,

where the District has engaged in bargaining over health and safety matters and when the Union

27
has not even attempted to bargain these metrics and factors, or their application, in subsequent

bargaining sessions, issuing injunctive relief cannot be said to further the remedial purposes of the

Act. Since the Union is not even attempting to continue bargaining with the Board and has not

presented a single proposal related to health and safety since issuing the demand to bargain on

December 16, it is clearly not just and proper for the IELRB to issue an injunction ordering the

Board to bargain.

B. The Public Interest Overwhelmingly Weighs Against Preliminary Relief

1. The Schools Are Safe

The Union argues that the health and safety concerns about COVID-19 override all other

considerations and present irreparable harm. While there is no dispute that COVID-19 presents

serious health risks to the community at large, the District must review data relevant and specific

to the school environment and balance the very real health, safety, and educational harms that

come with keeping students out of school. The significant educational and health outcomes related

to school closures are discussed in detail in this brief; we show in this section that the Union’s

attacks on the safety of schools are false.

The District has implemented extensive safety protocols that comply with local, state and

federal guidance. These protocols have been in place since the summer, were bargained and agreed

to by the Union, and enabled the District to reopen in hybrid form during most of September and

October without a single case of transmission within the schools. Exhibit 22. Indeed, to date there

has only been one instance of suspected transmission that occurred when special populations of

students returned to school in November. Id, ¶3.

The fact that the District was able to open safely for months is consistent with what public

health officials and school leaders are seeing across the country – where schools have strong

28
mitigation practices in place and a commitment to maintaining them, the risk of COVID spread is

low and is often lower than it is in the community at large. Exhibit 24, AAP Article.

The Union ignores the evidence regarding transmission rates and risk within school buildings,

which is the issue here. The omission is telling because school buildings have not, by and large,

been the location for the spreading of COVID. Schools across Illinois and nationally have opened

safely with low risk to both staff and students.

Indeed, a national and international consensus has emerged that schools are not a

significant source of spread and that the public health risks of having children at home in general

outweigh the risks of having teachers and students at school when proper precautions are taken.

Exhibit 25, Lancet Article; Exhibit 26, New York Times Article. Even national teacher union

leadership has recognized that opening, particularly in the primary grades, can be done safely.

Exhibit 27, Weingarten Tweet.

As of the date of this filing, according to IDPH data, in the previous 30 days as COVID

infections overall have increased, there have been zero cases of school outbreaks in all of DuPage

County where the vast majority of schools have been open for in-person learning. Exhibit 28,

IDPH DuPage School Metrics. This is consistent with findings across the country. A review of

data in New York state reflects that school infection rates generally reflect community infection

rates which means that schools are not the cause of spread. Exhibit 29, Washington Post Article.

During a 4-week period between October 12 and November 16, 80% of the schools in New York

reported zero COVID cases and nearly 90% had one or two cases which were likely not the result

of spread within the school. Id. Controlling community spread is critical; closing schools is plainly

not the answer. Id.

29
 In sum, schools can open and have opened safely. While no in-person instruction is without

risk and no mitigation effort is 100% effective, the advice and direction of the public health

officials is that schools have not been grounds for rapid transmission.

Whether it is appropriate to reopen schools, moreover, is not a binary decision that can be

answered with a simple yes or no based on a set of public health metrics. In balance also is the

very real educational impact of remote learning on the District’s most vulnerable students; students

who are the least engaged, not being served at a level they deserve by remote learning, and who

stand to gain the most from in-person instruction. The Board must balance the interests of the

students it is charged with serving with those of its employees, even if Union refuses to do so. The

Union wants to keep buildings closed regardless of the science and regardless of the very real harm

that does to the District students and their parents.

2. The Impact on Students Weighs Against Preliminary Relief

In balance is the health and safety of students, many of whom are dependent on school

buildings for not only the education program, but also for a safe space, food, and extensive

services, including mental health services. It was for these reasons that ISBE, in its guidance to

schools, “urges schools and districts to plan for and implement the transition to in-person

instruction through the lens of equity.” Exhibit 30, ISBE Guidance. Recent studies have shown

that school closures reduce expected student learning gains, contribute to increased rates of

dropping out, have a profound impact on the mental and physical health of students and will have

long-term consequences for children and their communities. Exhibit 31A-31G, Studies/Articles.

The Union urges the IELRB to order that the District can never reopen its schools without

completing negotiations with the Union over each application of the D205 Metrics/Factors while

at the same time not even attempting to bargain the issue with the District. The Union effectively

30
seeks veto power over school reopening. They want to override the input of all other stakeholders

– parents, communities, other staff, state and local governments - so that only their opinion matters

on whether and when schools can reopen. Further, this would inevitably place the IELRB in the

position of assuming the role of judicial monitor over when, how or under what circumstances

District schools would reopen. Based on the Union’s position, school reopening would hinge on

when the IELRB decides sufficient bargaining has occurred. Decisions relating to school

reopening will be taking place as long as this pandemic lasts, and the IELRB would become

entangled in the difficult and complex myriad of issues that arise from ongoing decisions.

Such a position is untenable and contrary to public policy. The District has the

responsibility to balance all of the competing concerns, listen to the guidance of public health

officials, and take the necessary mitigation steps to return students to the school building. The

IELRA and the Parties’ collective bargaining agreements place the authority to make these

decisions with the District.

C. Preliminary Relief Will Not Preserve the Status Quo

The injunction requested by the Union is not just and proper because it would upend rather

than preserve the status quo. First, the status quo of the District, for as long as it has been in

existence, is that instruction takes place in person, within the school building, with both teachers

and students present. The extraordinary nature of the pandemic has forced schools into remote

learning but to presume that is the status quo erases quite literally hundreds of years of educational

practice.

Second, the Union has not provided any evidence that the District has changed the status

quo without providing notice and an opportunity to bargain. As set forth more fully above, the

status quo is that the Board will determine the issues of reopening through application of the D205

31
Metrics/Factors. The District provided the Union with ample notice of the adoption of the D205

Metrics/Factors and has provided opportunity to bargain the health and safety impacts of return to

school. In fact, the status quo is that the District has the flexibility under the July 2020 resolution

approving the D205 reopening plan based on the D205 Metrics/Factors adopted by the Board in

November 2020 to pivot from remote to in-person learning as conditions allow. Decisions and

flexibility that the Union did not demand to bargain over. Any imposition of injunctive relief,

therefore, would alter the status quo, not preserve it.

D. Traditional Remedies Are Adequate and There is No Irreparable Harm

To be entitled to preliminary relief, a party must show that it has no adequate remedy at

law and will suffer irreparable harm unless the injunction issues. Moraine Valley Community

College, 5 PERI ¶1102 (IELRB 1989); Waverly Community Unit Sch. Dist. No. 6, 5 PERI ¶1059

(IELRB 1989). The Union fails to satisfy its showing in both respects.

The Union argues that the health and safety concerns about COVID override all other

considerations and present irreparable harm. While there is no dispute that COVID presents serious

health risks to the community at large, the District must review data relevant and specific to the

school environment and balance the very real health, safety, and educational harms that come with

keeping students out of school. As set forth above, at length, there is significant and irreparable

harm to students if schools are closed.

In contrast, the evidence is that schools are not places of community spread and thus

opening does not constitute irreparable harm to teachers and other staff. The District implemented

appropriate safety protocols that were bargained at length with the Union and are consistent with

local, state, and federal guidance. Indeed, the District was open for months in a hybrid learning

model without a single case of transmission within the schools. Exhibit 22. Indeed, to date there

32
has only been one instance of suspected transmission that occurred when special populations of

students returned to school in November. Id., at 3.

Whether it is appropriate to reopen schools is not a binary decision that can be answered

with a simple yes or no based on a set of public health metrics. On balance, the harms to students

for not opening outweigh any projected harms to teachers and staff from reopening. The balance

supports a rejection of the Union’s claim for injunctive relief.

CONCLUSION

For all of the foregoing reasons, the Board respectfully requests that the IELRB deny the

Union’s request for preliminary relief in its entirety.

Respectfully submitted,

Shelli L. Anderson

Shelli Anderson
sla@franczek.com
Nicki Bazer
nbb@franczek.com
FRANCZEK P.C.
300 S. Wacker Drive, Suite 3400
Chicago, IL 60606

Dated: January 15, 2021

33
 CERTIFICATE OF SERVICE

The undersigned attorney hereby certifies that she caused a true and correct copy of the
foregoing ELMHURST COMMUNITY UNIT SCHOOL DISTRICT 205 BOARD OF
EDUCATION’S BRIEF IN OPPOSITION TO THE UNION’S REQUEST FOR
INJUNCTIVE RELIEF to be sent to the IELRB and to the IELRB General Counsel via
electronic email and served upon counsel via electronic mail this 15th day of January 2021.

Stephen A. Yokich
Dowd, Bloch, Bennett, Cervone,
Auerbach & Yokich
8 S. Michigan, 19th Floor Chicago, IL 60603
syokich@laboradvocates.com

____________________________
Nicki Bazer

34