General Service Employees Union v. Illinois Educational Labor Relations Board

No. 1--95--0729

GENERAL SERVICE EMPLOYEES UNION, ) Petition for Review

LOCAL 73, SEIU, AFL-CIO, CLC, ) of the order of the

) Illinois Educational

Petitioner-Appellant, ) Labor Relations

) Board.

v. )

)

ILLINOIS EDUCATIONAL LABOR ) No. 94-CA-0016-C

RELATIONS BOARD; BOARD OF )

TRUSTEES OF THE UNIVERSITY OF )

ILLINOIS, )

)

Respondents-Appellees. )

JUSTICE BURKE delivered the opinion of the court:

Petitioner General Service Employees Union, Local 73, SEIU,

AFL-CIO, CLC (Union) appeals from an order of the Illinois

Educational Labor Relations Board (IELRB) affirming an

administrative law judge's (ALJ) determination that the University

of Illinois (University) did not violate section 14(a)(1) of the

Illinois Educational Labor Relations Act (the Act) (115 ILCS

5/14(a)(1) (West 1993)) in discharging a University employee. On

appeal, the Union argues: (1) the IELRB improperly held that the

Union was required to prove anti-union motivation on the part of

the University to establish a violation of section 14(a)(1); (2)

the IELRB's opinion and order was irrational, arbitrary and

incorrect as a matter of law; (3) the IELRB erred in holding that

an employer's unlawful motive must be proven to establish an

independent violation of section 14(a)(1) of the Act; (4) the IELRB

"applied the incorrect test in this case even under the standard

which it articulated" because the Union "was unable to present a

case under section 14(a)(3) of the Act"; (5) a violation of section

14(a)(1) of the Act should be found when the proper test is

applied; and (6) the IELRB's opinion and order were against the

manifest weight of the evidence. For the reasons set forth below,

we reverse.

Walter Duval (Duval), a medical records technician in the

medical records department at the University, began working for the

University in October 1988. In 1993, while on vacation, Duval sent

a postcard to his coworkers which made an alleged derogatory

reference to his supervisor, Adler Voltair. When Duval returned

from his vacation, he was suspended as a result of the remark he

made in the postcard. The Union subsequently initiated a postcard

mail-in campaign in behalf of Duval to protest the University's

suspension of him. A little over a month after returning from his

suspension, Duval was on lunch break when Voltair allegedly

attempted to run him over or hit him with his car. Duval

subsequently filed a police report to that effect with Officer

Barrera, a University police officer who investigated the matter,

but later retracted the charge against Voltair.

In his report, Duval claimed that Voltair drove past him, made

a U-turn, and proceeded to drive by him at a fast rate of speed.

Kathryn O'Flynn, director of medical record services at the

University and Voltair's supervisor, learned of Duval's police

report and was aware of the postcard campaign. O'Flynn later said

she did not have a reaction to the postcard campaign. According to

Union representative Marsha Robinson, however, O'Flynn told her in

a telephone conversation as follows:

"[Duval] had falsified a police report and she

wanted him out of there; that he had to go;

that she was fed up. And that this blue piece

of paper [Union contract campaign update] that

was going around talking about send [sic]

postcards, how could we uphold someone like

that. It was just ridiculous. She wanted him

out of there. She wanted him discharged. he

had to go."

O'Flynn further stated at that time:

"He has got to go. I want him out of here. I

talked with Personnel and we are going to

discharge him. He is out of here. These

postcards are just ridiculous. We don't have

to tolerate this and we are not going to take

it anymore. I want him out. Out. It is just

ridiculous that you are all upholding him with

these postcards."

Shortly after Duval retracted his statement to Officer

Barrera, the University discharged Duval based on his

"falsification of a police report." The Union subsequently filed

an unfair labor practice charge against the University in behalf of

Duval, alleging that he was discharged by the University "in

retaliation for concerted, protective activity, engaged in by co-

workers" in behalf of Duval (the postcard campaign) in violation of

section 14(a)(1) and 14(a)(3) of the Act, which provides:

(a) Educational employers, their agents or

representative are prohibited from:

(1) Interfering, restraining or coercing

employees in the exercise of the rights

guaranteed under this Act.

***

(3) Discriminating in regard to hire or

tenure of employment or any term of condition

of employment to encourage or discourage

membership in any employee organization.

The IELRB, however, issued a complaint alleging only that the

University violated section 14(a)(1) of the Act based on the

IELRB's director's decision that the Union had not presented enough

evidence to support a section 14(a)(3) violation.

At the hearing on the Union's complaint on January 25, 1994,

the ALJ initially stated that the Union had alleged a violation of

section 14(a)(1) and 14(a)(3) of the Act but that the IELRB's

executive director had issued a complaint which only included a

section 14(a)(1) claim. The ALJ further stated he was aware that

the Union was not pleased with the executive director's exclusion

of the 14(a)(3) claim, but that the Union was nonetheless

withdrawing its section 14(a)(3) claim to prevent any delay in the

proceeding.

Thereafter, on June 24, 1994, the ALJ issued his Recommended

Decision and Order, which addressed the following issues:

"A. Should this matter be referred to

the parties' contractual grievance arbitration

procedure?

B. Did UIC violate Section 14(a)(1) of

the Act by discharging Walter Duval?"

The ALJ held that the referral of the case to arbitration was

inappropriate, and that the University did not violate section

14(a)(1) of the Act.

In determining that the University did not violate section

14(a)(1) of the Act, the ALJ reviewed the findings of fact, and

determined that officer Barrera's testimony was more credible than

Duval's regarding where Duval was positioned at the time of the

alleged auto incident. The ALJ also stated that it was undisputed

Duval wrote the following portion of his statement withdrawing the

complaint against Voltair on his own:

"'Mr. Barrera explained to me that if Mr.

Voltaire's [sic] car crossed the yellow lines

then it would have been considered a

violation. Since the vehicle did not cross

the line I withdraw all charges. The vehicle

did not strike me or attempt to hit me.'"

The ALJ concluded "[t]hat Adler Voltaire [sic] did not use his

vehicle to attempt either to strike or scare Walter Duval on July

19, 1993." The ALJ based this decision on Duval's written

statement and his lack of credibility. Additionally, the ALJ noted

that neither of Duval's two co-workers, who Duval said were with

him at the time of the auto incident, testified that they saw Duval

when Voltair drove by. The ALJ also emphasized that he did not

rely on Voltair's testimony because "[h]e was a difficult witness

who was very evasive and, on the basis of [the ALJ's] observation

of his demeanor, lacking in credibility."

The ALJ then determined that the testimony of Marsha Robinson

regarding O'Flynn's demeanor on the telephone in reaction to the

postcard campaign was more credible than O'Flynn's

characterization. The ALJ "did not credit O'Flynn's testimony that

the postcards did not concern her." The ALJ also found Robinson's

testimony that O'Flynn thought the protest postcards were

inappropriate and disrespectful was more credible than O'Flynn's

testimony.

The ALJ then discussed his conclusions of law regarding the

section 14(a)(1) allegation. The ALJ noted that section 14(a)(1)

prohibits educational employers from "[i]nterfering, restraining or

coercing employees in the exercise of the rights guaranteed under

[the] Act.'" The ALJ determined that he would apply the Wright

Line test which requires proof of anti-union motivation on the

part of the employer for discharging an employee, and the

Schaumburg test which does not require proof of anti-union

motivation, and held that under either test, the complaint would be

dismissed. The ALJ stated that the Union had established a prima

facie case under section 14(a)(1) based on the fact that "[a]

reasonable employee, knowing that Duval was suspended immediately

after GSEU had come to his aide [sic] and that O'Flynn had

questioned GSEU's support of Duval *** could tend to be inhibited

from engaging in protected activity," and noted that an employer

can defend against a prima facie case by showing a legitimate

reason for its conduct. More specifically, the ALJ reasoned that:

"Here, UIC has shown that Duval was suspended

pending discharge because he filed a false

police report against Voltaire [sic], which he

then retracted. A reasonable employee knowing

that within approximately a month of his

suspension, Duval filed a police report

claiming that Voltaire [sic] tried to hit him

with his vehicle; that Duval's own friends and

co-workers would not support his story; and

that subsequently Duval voluntarily retracted

his report, now stating that Voltaire [sic]

never did try to hit him, would not tend to be

coerced from engaging in protected activity by

UIC's discharge of Duval." (Emphasis added.)

The ALJ then analyzed the case assuming that the Union had to

show improper motivation, pursuant to section 14(a)(3), on the part

of the University in discharging Duval. The ALJ acknowledged that

in order to show improper motivation, the Union would be required

to prove "(1) the employee engaged in activity protected under

Section 3 of the Act, (2) that the employer was aware of that

activity, and (3) that the employee was discriminated against for

engaging in that activity." The ALJ concluded that the Union

presented a prima facie case based on the fact that the Union

orchestrated the postcard campaign in behalf of Duval and which

Duval participated in, which constituted "lawful concerted

activity," but that an employer could defend against such a claim

by showing the discharged employee would have been discharged for

a legitimate reason. The ALJ noted that "where the employer

advances legitimate reasons for discharge and is found to have

relied upon them in part, then the case is characterized as one of

'dual motive,' and the employer must demonstrate by a preponderance

of the evidence that the employee would have been terminated

notwithstanding his protected activity." The ALJ concluded that

the University offered a legitimate reason for discharging Duval

(filing a false police report against Voltair), the University

followed established procedures when discharging Duval and, based

upon the preponderance of the evidence, the University would have

taken the same action notwithstanding the protected union activity

(the postcard campaign).

On August 1, 1994, the Union filed timely exceptions to the

ALJ's recommendation and a supporting brief. On September 2, the

University filed its response to the Union's exceptions.

On January 26, 1995, the IELRB issued its opinion and order,

affirming the ALJ's determination that the University did not

violate section 14(a)(1) of the Act. The IELRB adopted the ALJ's

findings of fact, and concluded that an employer's motivation must

be proven to establish that the employer violated section 14(a)(1)

of the Act when the facts alleged to violate section 14(a)(1) could

be characterized as a violation of section 14(a)(3) of the Act.

The IELRB determined that the facts alleged could be characterized

as both a 14(a)(1) and 14(a)(3) violation. The IELRB reasoned that

when an employer's conduct is alleged to violate both section

14(a)(1) and 14(a)(3), motivation must be proven, otherwise section

14(a)(3) would become superfluous. The IELRB stated that when

"adjudicating alleged Section 14(a)(1) violations which involve

union activity and which therefore could have been alleged as

Section 14(a)(3) violations, we shall apply a test requiring proof

of motivation, similar to the test applied in Section 14(a)(3)

cases." (Emphasis added.)

The Union contends that it does not have to show an unlawful

motive for Duval's discharge to prove a section 14(a)(1) violation

by the University, and that such a showing is applicable only to a

section 14(a)(3) violation. The Union also contends that, if this

court determines that an unlawful motive must be proven in this

case, there is in fact evidence of the University's unlawful

motive. Finally, the Union contends that if the instant case is a

"dual motive" case, the reason the University provided for Duval's

discharge was merely a pretext for its unlawful motive, and the

University did not show that Duval would have been terminated

notwithstanding his participation in the postcard campaign.

The IELRB and University argue that the IELRB applied the

correct test to this case, i.e., pursuant to section 14(a)(3), that

the IELRB's decision is not arbitrary and capricious because the

decision is consistent with past precedent, and the IELRB correctly

held that the Union was required to demonstrate improper employer

motivation in order to establish a section 14(a)(1) violation in

this case. The University also argues that in order to show a

14(a)(1) violation, the charging party must prove unlawful

motivation as is applicable to a section 14(a)(3) violation; in the

present case it had a lawful motive for Duval's discharge; it would

have discharged Duval regardless of the contemporaneous union

activity; and it did not inhibit other employees from exercising

their rights under the Act. The IELRB concluded that "proof of

motivation is required when, as here, the facts alleged as a

violation of section 14(a)(1) could equally well be characterized

as a violation of section 14(a)(3) of the Act."

Administrative proceedings are governed by fundamental

principles and requirements of due process of law. Abrahamson v.

Illinois Department of Professional Regulation, 153 Ill. 2d 76, 92,

606 N.E.2d 1111 (1992). "An Illinois court has a duty, under the

Administrative Review Act, to ensure that due process was afforded

in the administrative hearing." Reich v. Freeport, 527 F.2d 666,

671 (1975). In administrative proceedings, "due process is

satisfied when the party concerned is provided an opportunity to be

heard in an orderly proceeding which is adapted to the nature and

circumstances of the dispute." Obasi v. Dept. of Professional

Regulation, 266 Ill. App. 3d 693, 702, 639 N.E.2d 1318 (1994). To

ensure a party receives due process, "'[a]n agency changing its

course must apply a reasoned analysis indicating that prior

policies and standards are being deliberately changed, not casually

ignored.'" Dehainaut v. Pena, 32 F.3d 1066, 1074 (1994).

The findings and conclusions of law by the IELRB on questions

of fact are considered prima facie true and courts may not

interfere with the discretionary authority of an agency unless it

is exercised in an arbitrary and capricious manner or is against

the manifest weight of the evidence. Board of Education of

Schaumburg Community Consolidated School District No. 54 v. IELRB,

247 Ill. App. 3d 439, 453-54, 616 N.E.2d 1281 (1993). "However,

the courts of review are not bound by the agency's interpretations

of law. Where administration of a broad statutory standard has

been delegated to an agency's discretion, the court should rely

upon the agency's interpretation where there is reasonable debate

as to the statute's meaning." Board of Education v. Illinois

Educational Labor Relations Board, 143 Ill. App. 3d 898, 907

(1986). The court's review of an agency's statutory interpretation

is de novo, however, the agency's interpretation should receive

deference because it stems from the agency's expertise and

experience. Board of Education of Du Page High School District No.

88 v. IELRB, 246 Ill. App. 3d 967, 973, 617 N.E.2d 790 (1992).

Agency action is arbitrary and capricious if the agency

contravenes the legislature's intent, fails to consider a crucial

aspect of the problem, or offers an explanation which is so

implausible that it runs contrary to agency expertise. Greer v.

Illinois Housing Development Authority, 122 Ill. 2d 462, 505-06,

524 N.E.2d 561 (1988). "While an agency is not required to adhere

to a certain policy or practice forever, sudden and unexplained

changes have often been considered arbitrary [and] the standard is

one of rationality." Greer, 122 Ill. 2d at 506.

Illinois case law and previous IELRB rulings clearly set forth

the applicable tests for claims brought under 14(a)(1) and 14(a)

(3). Under section 14(a)(1), "[o]rdinarily, a showing of unlawful

motive is not needed to establish a prima facie case of a

violation" (Southern Illinois University (Edwardsville), 5 PERI

1076, No. 86--CA--0018--S (1989)), and section 14(a)(1) has no

requirement that unlawful motive be shown by the charging party

(Southern Illinois, 5 PERI 1076). The court applies an objective

test to determine if a prima facie case has been established.

Southern Illinois, 5 PERI 1076. Once a prima facie case has been

established, the burden shifts to the defending party, and if the

defending party offers an explanation for its conduct, the court

must apply a balancing test, "weighing the respondent's need to act

for legitimate reasons against any interference with employees'

statutory rights." Southern Illinois, 5 PERI 1076.

On the other hand, discriminatory discharge, or discharge

which violates section 14(a)(3), "is established by a showing that

(1) the employee was engaged in activity protected under section

14(a)(3) of the Act; (2) the [respondent] was aware of that

activity; and (3) the employee was discharged for engaging in that

activity." Georgetown-Ridge Farm Community Unit School District

No. 4 v. IELRB, 239 Ill. App. 3d 428, 464, 606 N.E.2d 667 (1992).

The third part of the test is established if the employee's

protected activity was a substantial or motivating factor for the

discharge or action against the employee. Hardin County Education

Association v. IELRB, 174 Ill. App. 3d 168, 174, 528 N.E.2d 737

(1988). Once a prima facie case has been established, the burden

shifts to the employer to demonstrate by a preponderance of the

evidence that the discharge would have occurred but for the

protected activity. Georgetown-Ridge, 239 Ill. App. 3d at 464.

"This 'but for' test, commonly referred to as the Wright Line test

*** [has] been held by [Illinois courts] to be applicable in

discriminatory discharge cases brought under section 14(a)(3) of

the Act." Georgetown-Ridge, 239 Ill. App. 3d at 464. Once a

party has offered a reason for the adverse employment action, it

must be determined whether the reasons are bona fide or pretextual.

City of Burbank, 128 Ill. 2d 335, 346, 538 N.E.2d 1146 (1989).

More specifically, as stated in City of Burbank, 128 Ill. 2d at

346-47:

[W]here the employer advances legitimate

reasons for the [adverse employment action]

and is found to have relied upon them in part,

then the case is characterized as one of 'dual

motive' and the employer must demonstrate by a

preponderance of the evidence that the

employee would have been terminated

notwithstanding his union involvement."

We find that the IELRB's decision to apply a section 14(a)(3)

analysis is arbitrary and capricious. The executive director of

the IELRB, in reviewing the Union's claims, determined that the

Union had not alleged a violation of section 14(a)(3) and,

therefore, the executive director filed a complaint alleging only

a section 14(a)(1) violation. In its decision, however, the IELRB

found that the facts the Union presented revealed that the Union

could have alleged a section 14(a)(3) violation and therefore

applied a section 14(a)(3) analysis. This is not only

contradictory, but does not afford the Union due process of law.

While some of the evidence presented when arguing both a section

14(a)(1) violation and a section 14(a)(3) violation would be the

same or similar, the trial strategy may be quite different and a

party would necessarily put forth different evidence depending upon

which violation it was arguing. The Union in the present case was

deprived of the opportunity to put forth evidence supporting a

section 14(a)(3) violation because the executive director precluded

the Union from alleging such a violation. Yet, the IELRB proceeded

to evaluate the Union's case based upon a section 14(a)(3)

analysis.

Additionally, the IELRB has arbitrarily determined that a new

test would now be applied to section 14(a)(1) violations that

"could have been brought as [section] 14(a)(3) violations." This

decision would be more palatable if the Union determined which

violation would be charged against the opposing party. However,

the executive director of the IELRB determines which violations a

party may allege. The IELRB simply cannot say, on the one hand,

that a party has not provided sufficient evidence to allege a

section 14(a)(3) violation, while on the other hand, state that the

same party has provided sufficient evidence to implement a section

14(a)(3) analysis.

Because the IELRB concedes that there was sufficient evidence

for a section 14(a)(3) claim, we remand the cause and direct the

IELRB to order a new hearing as to whether the University violated

section 14(a)(3).

For the reasons stated, we reverse and remand, with

directions.

Reversed and remanded, with directions.

HARTMAN, P.J., and SCARIANO, J., concur.