Oral argument — In re Thornton Fractional High School District No. 215

First base is 09-1597, Thornton Fractional High School District No. 215 I wonder if the attorneys who were going to argue orally would step up and identify yourselves for the record First of Donnelly Educational, the neighbor's organization Good morning, Your Honor, I'm here to help you Everybody's scurrying up over here arguing both You dropped a junior, huh? I never was a junior, I was a junior, I had a mobile mission Oh, you never were a junior? No Oh, okay, good morning, Mr. Scariano, you've been here before, you know the marching orders for the court Counsel? Good morning, Your Honor, Gail Musalski, a cornfield installment, representing the Southwestern Federation of Teachers And then we have an Attorney General Good morning, Your Honor, it's been a real pleasure And have you two decided, you've got 15 minutes to share, have you decided how you're going to split that up? Yes, Your Honor, we've decided to split it up Okay, and we'll wait until they've completed their 15 minutes and then you will have as much time to respond as we think it's appropriate for you to have to respond out of your original 15 I was planning to take a 10 to 5 unless you wanted to No, that's fine, that's fine, but you know this panel pretty well, I think We don't pay much attention to the time limits, depending on the questions that are brought up by the members of the panel I've never used the lights, I don't even know how to use the lights We usually keep going until we're satisfied that we've picked your brains for as much information as possible and then we kind of look restless Okay, I think you can safely assume that we've read your briefs Mr. Scariano, you have our attention If it pleases the court, before considering the merits of this case, we must note the applicable standard of review for the appellate court The standard applied on review of an agency's decision depends upon whether the issue presented is one of fact or law Purely factual findings made by an administrative agency are reviewed under a manifest way of the evidence standard Great deference is given to the administrative agency They're entitled to deference being made in private face or true or incorrect When the agency's decision involves a pure question of law, however, the decision is not entitled to the same degree of deference How about if it applies to the question of applying the law to the fact that the city of Belleville finds it clearly erroneous? It's mixed, Judge. It's mixed because in this case, the facts superimposed by the standard of law that the agency applied, we contend, is wrong And my first argument is that even on a manifest way of the evidence standard, the decision below is incorrect On the fact, and you were going to say on the law it's denoted, right? Right, but What if it's an application of law to fact is what my inquiry is, don't we have Supreme Court precedent for that? Yes, you do The test should be clearly erroneous That's correct. That's correct. My first argument is on the manifest way of the evidence and the facts There are three problems with the decision below Number one, the labor board argues that this is a case involving status quo ante For the first time, the bargaining unit had been certified and were bargaining a first-year negotiated agreement with the labor union The law is, as the labor board claims it applied, that you must maintain the status quo ante You can't change the procedure by which you deal with working conditions of the employees Without bargaining Without bargaining, and we should agree to that, Judge Here, the status quo ante was governed by a set of work rules, which was a meeting from first-hand without union recognition Whereby management agreed to involve and interview everybody applying for a promotion But never the word seniority is mentioned as a factor, one factor or the compelling factor in deciding who gets awarded the case Why don't we hold off a bit on applying the standard to the specific fact here Without spending a little time first on the abstraction, on what the general principle is In other words, let's deal with the major term of the syllogism before we get to the distributive middle term The major term of the syllogism, Judge, is that management must preserve the status quo during bargaining No, no, but what the definition of status quo Whatever the facts are Well, what is it in the abstract? What is the status quo as you see it? We know how Justice McCullough sees it We know, at least inferentially, how the union and the plan see it What do you see as constituting the status quo? Do you require the full implementation of the Vienna case? Yes So, in other words, if something is not included in the previous collective bargaining agreement And is not around for a significant amount of time, what else? It can't ever achieve the level of status quo? Right, there is a status quo Under Vienna, the question was, do you withhold the yearly increment of the salary schedule? And Vienna tells us, what was the history of the parties before collective bargaining? If they pay the teachers the step, the vertical step in the salary schedule, every year during bargaining You can't stop that process, you have to maintain the status quo empty In this case, the status quo empty was, seniority was never a determining factor in awarding promotions Doesn't that issue depend on the interpretation of the various statements made By Tia Trenchik, Dr. Willard, the principal, Halbert, and various other individuals Who made statements that could be construed as meaning seniority will control in this given situation No, your honor, because those comments were limited to how the decision was made to cut back The employees from 12 months to 10 months under a retrenchment Not who would be awarded the job Now, the discriminative chief fully testified that she was told by her administrators The most senior person would get restored, or must restore However, let's back up a little bit Because what you're suggesting is an inconsistent spin with the spin given by the ALJ That puts you in some difficulty Because at that point, standards of review may very well take over Where we would decline the credibility interpretation Or necessarily negating the interpretation given by the ALJ If it is in any way reasonable But before that, let's assume that the ALJ was correct in interpreting The words of these different witnesses That this particular determination would be made on the basis of seniority Would that establish a status quo? No, because I've got a way out of that, your honor The way out of it is, there are two documents over which there is no credibility determination One is the document that covered the procedures of work, of work rules, while we were bargaining That document was, employees who applied for a promotion I'm still not making myself clear, pardon my interruption What I would want to know, if it was determined that the school district Fully intended this particular job specification to be dependent on seniority Without any history as to what the general standard is With regard to all jobs or any jobs of that nature Would that be determinative of a status quo? Without anything else, yes, judge, yes Why? What is the problem? Wouldn't that simply indicate somehow That might very well be applicable to a contract analysis But is it also automatically applicable to a status quo analysis? On facts alone, yes Here's why If that's the course of dealing And the only way you prove course of dealing in the best practice Is how management is programmed But there is no course of dealing in this particular context Because presumably, the cutback occurred in 2005 The new 12-month jobs were created in 2006 The applications proceeded in 2007 There is no history here, is there? What history is there? That's a sub-question You're the one who's already are trying to What? Reasoning Reasoning You're reasoning to me that I can't rely on that Because of the standard review Okay And you, in this case, had bargained Had a proposal on the table saying seniority governed Yeah, but They withdrew that proposal And the contract that was signed I'm arguing it to you because I want to give your opponents time to think about that Because I'm certainly interested in that Well, a proposal about seniority would have been a new course or policy, wouldn't you think? No No? No It would be new, I would argue it would be new Yes The union would argue that that's nothing more than a codification of the course of dealing Let me throw you another softball Can the policy implementers in the school district Policy implementers being superintendents Yes Principals Yes Other people in supervisory and authority to implement policy Can they create a board policy by their behavior No Before the board is ever active No What's your case for that, though? I'm looking for a case Maybe about a thousand cases that say that the Board of Education I don't want a thousand, I only want one You cited federal cases for that position, didn't you? No, I cited federal cases for the right line, the mixed motive Yeah, that's a different issue I'm looking for a case that says By their behavior, policy implementers can create a policy before the board is actually adopted There is no such case that says that Isn't that what this case is going to say if we go along with the union? Now, I notice the Attorney General hasn't said anything The union rep is shaking her head You're going to get your chance, believe me It seems to me, don't we have to start there? Well, you're talking about a policy of seniority for the filling of vacancies In jobs involving clerical workers who are now, for the first time, being represented And the ALJ seems to have taken the position That you created a status quo by the behavior of your superintendent and the school board You created a status quo by the behavior of your policy implementers You can't even get there, Judge, when the superintendent testifies Well, that's what he said, isn't it? No, he said seniority was the determinant That they picked the best qualified person for the job That puts us into a second arena Which it seems to me would be a more difficult one In which, I'm not saying it wouldn't prevail But it's the more difficult one Because then we have to determine whether there is any sense at all To the spin or interpretation of these assertions as made by the board But, on the other hand, if we don't have any history here About policies, practices, concerning the fulfillment of 12-month positions Upon the modification of the original reduction Then we don't have a history, do we? I appreciate that, Judge, but I don't want to rely Because your Honor knows the new arena that you're going to take me into If we rely on what the superintendent is saying is unbelievable That's a manifest way of dealing with it But the question is, how important is it for us to get there? And I simply wanted to see if you have anything to add to that question As to whether a status quo would have, in fact, been created If its germination occurred in one flat instance Well, the answer to that question is clearly dependent upon the facts of the case I've got documents that say here's our course of dealing We don't use seniority as a determination I've got a collective bargaining agreement It's a factor If you admit that it's a factor No, the thing was a factor It isn't a factor No It was never a factor No, and secondly, the collective bargaining agreement that was entered into between the parties The union dropped its proposal to make seniority a determining factor in awarding promotions Now, I don't think it could be clearer This case really would only be applicable then going forward To the individual for whom the remedies are being installed here Going forward, it wouldn't be a... I just want to know whether you feel like the Board of Education got backed into a policy By the behavior of its officials It didn't, because I said the full testimony of the parties What about the document that was used to... The document that the superintendent tendered to the Board And which they approved of with the cutbacks Yes And that contained some language Okay I'm looking for it here The document itself That was tendered to the Board That listed all of the salary cuts and everything And the bottom line was the total amount of money that was going to be saved by the implementation of that policy That's correct Okay Over $720,000 Yes Didn't that include the word senior guidance secretary? Judge, it may very well. My partner is going to find the document for me I think they're going to rely on that in part Are they not for the argument that the Board, whether they did it inadvertently or advertently Adopted a policy of seniority with respect to replacing... No, there's no replacement here This wasn't about a hiring at all This was about those that were working and presently employed Would be 10 and a half months as opposed to 12 Correct Two would remain at 12 months Right But there's nothing in that writing anywhere about what would occur in the event of a new hire for a position Right And let me point you, Your Honor, to a factor which really isn't argued That is only tangentially important There is a law for educational support personnel in the state That says that when you cut back, you cut back on seniority And if you restore the job within one year of the cuts, you follow seniority Within one year Thereafter, if you recall people, there's no standard Was this within one year when that position became available? No Now I want to go back to, what did you cite this Duda case for then? Would that have cited the what? Duda, the federal Seventh Circuit case Well, mixed motives, Judge Pardon me? Mixed motives You say, though, that you rely on this case to suggest that the principal and the assistant superintendent can't establish policy Oh, well, that comes from Mount Healthy and all the cases that say that the policymaker in a governmental unit is the Board of Education, which adopts the policy But you don't get to that analysis in this case If, regardless of whether they cut on the basis of seniority or not, the question is promotion and rehire Right And there's nothing in the parties, either by fact or by operation of the way they did their jobs, to indicate they would rely on seniority in rehiring As a matter of fact, the union backed down from that position That was the union's position at one end of the contract And they went through their proposal You always have to assume that by the withdrawal of the proposal, they agreed that the Board is not bound by seniority in making promotions Is this a manifest weight issue, or is this a de novo issue, or a clearly erroneous issue? It's clearly erroneous. It's a mixed law, in fact, Judge Why isn't it? What the law was is an issue of fact. What the law is, is an issue of thought But the law that I cited isn't applicable in this case, the ESD law There wasn't a rehire within one year that we would have had to follow seniority The law says that if we rehire people that are ripped or laid off, we follow a worse seniority No, but in terms of whether there is sufficient proof offered by the plaintiffs To create an issue of fact as to whether the district was going to guide itself by seniority in the rehiring for these new 12-month positions Aren't you posturing an issue of fact insofar as you have various personnel who have addressed the issue as being guided by seniority? Now, for one of those, you have an admissibility problem Was he authorized to speak for the board, which I presume you're going to talk about later on Because I have something to say about that too, but I don't want to deflect from that at this point I understand So, in that sense, the question is, does your document control, is that trumped over what the non-ministerial employees of the district themselves Declared to be the principle that will be applied in the rehiring? I'm troubled by your Honor's softball only in the fact that this is not a softball Well, that's why you're troubled by it Well, the superintendent made the recommendation that she not be hired for that job anymore Isn't that used against the district to establish the second part of what is needed under 14A1 to 14A5, namely that it be to discourage union participation? No, that is not at all pleasant. That's only if you find out it's a retaliatory move Well, if the policy is to rehire on the basis of seniority, and if the plaintiff is active in union activity, that, coupled with another statement from one of the district employees that she'll never get that job, might very well provide That wasn't an alleged employee, it was the attorney who allegedly said that That would offer support for the conclusion of the ALJ that it's retaliatory Now, let's go to the facts of the retaliation, okay? At the bargaining table, the discriminantee accused the principals of screwing up the ACT score registrations for all the seniors, such to the point that they wouldn't get into college That's when she was cautioned and told, watch what you say No, not at that point. At the point where we made an investigation to determine if she was right We made an investigation, we called everybody in and said, what's the story? The facts showed that only one student label was misapplied of the 800 seniors that was involved And she was told, be careful what you say, because you have prolongated all of your superiors, accused them of mismanagement, you know, and not doing their job And you can't get away with making broad claims like that, and get away with it Now, if that's you mean retaliation, I'll never run a case here in my life Well, don't exaggerate your position I mean, I still have to get on the bicycle, because you guys shifted from 14A5 to 14A3, and I haven't caught up yet I was still focusing on 14A5, and suddenly we switch over to Animas and we're in 14A3 They're really two distinct remedies that could be sustained They're not interrelated I mean, you could find that there was no status quo here, with respect to the seniority issue But you could also find that there was Animas for this particular individual, for which, under 14A3 And you could still award her the remedies that have been awarded by the Illinois Educational Labor Relations Board, the ELRA Independent of the status quo issue They're two separate issues Yes, yes They're not linked in the sense that if you find no 14A5, you can't find any 14A3 That's not the argument Well, how do you get past the manifest wait, then? Unless you still want to go back to the first, how do you get past the manifest wait? The students in the schools did not testify that seniority would be a determination in rehiring No, I'm talking about, though, in terms of the second issue, whether there was an unfair practice against The foundation? Yes, that's a completely different issue And how do you get past the, even the clearly erroneous on that? You have to give some deference to those factual findings I have a problem with the evidence that was introduced with respect to, allegedly introduced with respect to the evidence of animus But we'll get to that later, it's more of an appropriate question for the Attorney General and the Union rather than for you I mean, I looked at the record, and for example, the ALJ never called you to testify to allegations that were made with respect to statements that they said you made, right? I understand, you're right I mean, there's nothing in the record except somebody saying you said Yes, you're correct But the issue also allows non-reunion activity, but her making an insubstantiated and untrue charge of the worst type of dofus is still known to her supervisors The fact that it happened in a negotiation session doesn't occur with the protection of the Union You can't lie and call your boss out You have an accumulation of data If we're back on the retaliation issue, we have an accumulation of data I mean, we first have cautionary language We next have a statement, she'll never get that job We then also have at least the accusation of the ALJ that the district never did say why she wasn't retained That they kept that a secret And your only answer to that is, well, that wasn't such a big secret because it's so inferable from everything else No, no, that's not the argument It's because the superintendent, out of his own mouth, said we hired the best qualified person, and she wasn't that person No, he didn't say she wasn't, did he? That's why I look at the decision Why was the person, Kid Taylor, hired? Because she was the most qualified individual that we interviewed All of them said that They didn't say, you know, we're going to let you be They also said that that has been the prevailing policy Right Right, because the work rules said you're hiring the most qualified individual And the ALJ made the point that this plaintiff was never told that you are not being hired because you're not the best qualified Well, the ALJ made a bunch of points We're talking about an accumulation of points, whether they amount to, literally, to a hill of beans or not But they have to be attacked cumulatively, don't they? They have to be challenged cumulatively Well, let me do cumulative in terms of a time span When you walk into a case and the ALJ tells you you're going to lose, and I issue a pension memorandum, and not hear any evidence Oh, no, wait a moment, that's a characterization of a statement made by the ALJ that probably is unfounded The fact that he said he was going to, or she said she was going to, issue a pension memorandum could have meant that she was on your side No, and that would have meant that I would have lost my case And there was testimony there of that That's not true I mean, your aftercharge about bias didn't come until after the ruling had been made That's not true That's not true The board president testified at the hearing, before the decision, that she felt intimidated by the ALJ because the ALJ told her you'd lose this case She was part of the conversation Now, if the Attorney General tells me all I have to do is write the General Counsel a letter, but that rule isn't The General Counsel was the ALJ in this case What am I supposed to do? Say, give you ten minutes of a recess so I can write you a letter telling me that you're prejudiced against me? Yes Just so you get a record of having made the motion The fact that you're not going to get the result doesn't necessarily excuse you procedurally from not saying a word You have to make your record Judge, the record says the Board of Education President took the stand, looked at the ALJ, and said, I feel intimidated by you You told me I was going to lose this case before you started this case How much more of a record do you want? The question is whether you forfeit by not, at that point, being of record in asking for a change of venue or whatever the administrative terminology is or a change of hearing of a hearing judge No, the rule, Judge, is that I have to petition the General Counsel of the Labor Board The General Counsel was the ALJ What am I going to do? Petition the ALJ, who is the hearing officer in the General Counsel, to say I can't get a fair trial with the General Counsel? Give me somebody else? I think we need to move on Do you want to sum up? Yeah, thank you, Judge On the basis of the prejudice arguments that I make in the brief and the mixed motive analysis, which is not paid any attention to at all by my opponents that there are mixed motives as to why she didn't get the job You have to apply the right-line test of, if there are legitimate reasons why she didn't get the job whatever you're doing activity that you want to try to claim or attach to in this case is irrelevant On that basis, I would ask for a reversal I'll reserve the rest of my time for rebuttals Thank you, Your Honor I think we decided the Union was going to go first, right? Yes Okay, Counsel Thank you very much Good morning, how are you today? Good morning, Your Honor, I'm fine, thank you very much The thing that concerns me the most about Counsel's argument and actually the Court's questions I'm just going to start with that rather than get into background and we'll move on because obviously the Court has shown that they don't get what the standards are is that Counsel keeps saying and the Court is responding to it that seniority is not a factor in deciding who gets a position No, that's not my question at all That's what you took away from where I was inquiring That wasn't where I was inquiring at all What I wanted to know was with respect to the Education Board's decision that there was sufficient evidence of a status quo That's where I'm focusing right now I'm talking about the A-5 issue, not the A-3 issue So let's keep them both separate I agree with that totally Thank you very much I understand that based on the evidentiary material that was presented to both the Administrative Law Judge and to the Board itself when they adopted the findings of fact of the Administrative Law Judge was that there was enough evidence in the record to establish a status quo for the principle that when replacing a 12-month person there's a vacancy for a 12-month slot that among the eligible participants for that job seniority would not only be a factor it would be determinative based on the status quo And that, as far as I can tell, was based on three incidents over a period of less than two years Okay? What complicates it in my mind is not that they found status quo based on just three incidents but that they found it prior to they were using evidentiary material from a point when A, there was no contract between these employees and the Board There was no pronouncement by the Board itself with respect to a policy as to how seniority would apply And that's most important in my mind I mean, the superintendent might have said it The principals might have said it But the Board itself never adopted a policy that seniority would trump all other factors when replacing these people Is that true or isn't it? Can you point to anything that the Board did? Because the Board saddled with this policy They have decided, the Illinois Educational Labor Relations Board has decided that they have a policy shown by past practice, status quo that seniority will be the determining, not determining the only factor to be considered when replacing these people Did the Board ever adopt such a policy? No Then they're locked in by what their policy implementers did, aren't they? Yes Okay Now, you're a union rep, you're comfortable with that, right? Yes, I'm comfortable with that, but I just have to say one thing Before you say that, do you have a case that says that superintendents and principals can create policy for the Board before the Board acts by their actions? I have not cited such a case, however Not that I'm aware of Neither am I Because the issue here, first of all, I'm going to say two things Okay One, is that the issue is not whether, and I don't believe the Educational Labor Relations Board found that seniority was a factor in determining or the only factor in determining who would get the position What the Educational Labor Relations Board found was that seniority was the only factor and the guidance office, these three individuals as to who would be assigned a 12-month schedule which is very different than who is going to be hired for a position Okay Okay, well then, how do you get from the person who is assigned when we're making, or you're making these cuts How do you get from the person assigned will be the most senior to a policy that when we fill or hire someone for a replacement that that policy is that the most senior gets that position Again, I don't, I shouldn't say again I'm trying to get to status quo I agree The status quo would be that the status quo was that when a position or a vacancy occurred the status quo was that the most senior person would get that position No, the status quo was that the most senior person would be given the 12-month schedule Not that the most senior person would get a particular position But doesn't status quo implicate board house? No, I don't believe it does There are many, many terms and conditions of employment that can be Well, it is considered status quo which are not Let's look at a case then Let's look at a case that describes what status quo is And it describes considering a number of factors including the evaluation of past history Any past bargaining practice Existing contract terms And the expectations Those are the four things Those are the four things that are discussed Well, are there more that we should be looking at? No, I mean I think that when the courts and or the National Labor Relations Board or the Ed Board or the State Board makes a determination the issue is that the employer should not be allowed or is not allowed to come in and change a term and condition of employment which the employees have come to There was no contract Nor did the pre-existing contract deal with this contingency First of all, there was no pre-existing contract They were basically at-will employees They had no pre-existing contract They were at-will employees But if you're asking whether there are cases that say that there can be a status quo that cannot be changed if there is no contract there are many cases that can But the thing is we're dealing with a phantom construct called status quo This same situation that you're describing if the board would simply not say anything but appoint two people with seniority to those spots would that automatically determine the pre-existence of a status quo? I mean, does the status quo is the equivalent of any action ever taken by the board? And I read Justice McCullough's opinion in Vienna that we were just talking about and I don't see that at all in the concept of status quo It seems to be a floating concept that you simply randomly assign to any position ever taken in any specific case by the board Remember, Vienna has a 10-year history They had a 10-year history of this particular I don't have a problem with Vienna because Vienna seems to say if you have an expired pre-existing agreement that the terms of that agreement constitute a status quo which is the equivalent of saying that if you don't enter into a new contract there's a holdover of the old contract And that's the law, unless you negotiate to intact I know Berlin, not Berlin I know Berlin, not Berlin Vienna better than Canada Well, if you look at Vienna, depending on how you say it how do you support the four, at least these factors? What was the past history? The past history that's found by the board consists, I think, of three things One was the actual representation made by Principal Halper which was, in fact, reiterated and put into writing by the superintendent explaining the actions of the board and what was going to be recommended to the board Did the board ever vote on this policy? The board definitely voted on the reductions and how the reductions were adopted This memorandum was information What you're really arguing is that the board really adopted a policy of seniority first by implication and by the fact that they approved the behavior of their superintendent and their principals And by saying nothing nothing in effect is approval of what the superintendent and the principals thought the policy was Is that fair enough from the union point of view? To the extent that it would be necessary Be careful what you wish for To the extent it would be necessary for the board to adopt the policy for it to be the status quo, which I don't agree with I think in this situation, because they definitely did approve what occurred, and remember this is only two offices which contain three people That's what's so troublesome about you saying that there's now a status quo That past history makes two positions that were going to remain at a 12-month period Two positions makes, of all those that were being reduced two were not being reduced That makes a past history How does that relate to past bargaining? Well, first of all, there was no bargaining Right, okay, so How do we create a status quo when there was no pre-existing universe? Because the status quo is something historical That's correct And there is no history There is no history It's a very brief history It only happened one time But the fact that the Illinois Educational Language Relations Board has now mandated that that's enough If we sign off on the IELRA opinion, okay then we are in effect saying that this particular set of circumstances that occurred in Thornton is enough to establish the policy of status quo There's also another indication An indication is going to be cited for that And I understand that And we have to sign off on that and then we have to say, and this comports with biannual as we understand biannual We have to write an order or an opinion I understand And we can't go against biannual And we certainly don't want to go against the wisdom of the Illinois Educational Labor Relations Board if their order is not against the manifest weight of the evidence and not clearly erroneous So you are establishing for purposes of status quo analysis This case will take its place in the line of cases that goes back to Vienna but there's nothing in between So we've got Vienna and we've got this But, I do have to say that the determination of whether or not there is or isn't status quo is a very factual determination and it's based upon a lot of relevant factors If you look at where there is a lot of information in the LRB For example, the Hyatt case that I've studied And the case is stated It was a new use They didn't have a long history But what the court said was that in this situation employees were told that they were going to get an increase after three years and although it might be a marriage, etc. They were told that They were given that information and then and then they were told well now you voted for unions, you're not getting it The board looked at Did these employees believe that they were going to get this? Did they have that expectation? Yes, they did They had the expectation that even though three were going to remain at ten and a half months they had the expectation that should a vacancy in one of those positions occur that the only person who would get that position would be the most senior person And the reason I'm saying that Yes, because Dr. Kilgrave told that to the union president She asked him and he said yes, it's going to be the most senior What's going to be the most senior? If a vacancy occurs, we're going to take the most senior person and put them into that? No I don't know how you leap from a position or policy, whatever you want to call it that of the multiple people that are going to be reduced from twelve to ten and a half that those in the three positions that are going to remain at twelve that from this position, we then go to an expectation that if something happens where one of those people is no longer going to be in that position that when we hire or we replace or we put someone in that position that it will only be the person who's most senior I'm trying to get to that The only way to get to that is this way There's three people, six altogether So three in each guidance office Two are going to be reduced and one is going to stay as a twelve-month employee The person is going to stay, it doesn't matter what they do, what their job is The person who's going to stay is the twelve-month person In fact, they work at different jobs So what you're basically saying then is that this is limited to this particular little unit within the school district and that the union will never read it to apply in a more wide fashion that what the board has done is adopted a policy of seniority first without regard to any other factors The union did not argue in this case No, I know you didn't I know you didn't You didn't even adopt that in the contract Even if that was what you wanted, which may not have been what you wanted Well, it is what we wanted, we made those proposals But we bargained and we made an agreement that didn't include everything we wanted Okay, I got you We really need to hear from the attorney general too because we've been kind of beating up on the board They should have an opportunity to respond It's their order and opinion that we're under Thank you Thank you, counsel Ms. Winder, good morning You've been listening, so I suppose you're up to speed You know, it's been originally, as Ms. Morales and I originally dug out in time I was talking about five, but we haven't heard so much about five Do you want to focus on A3 rather than A5? Well, I think that we're talking about Go ahead, that's all right No, no, no, I meant the allegations that the ALJ was unfairly prejudiced against the district That would be the issue I would discuss, but we haven't really heard a lot I wouldn't spend a lot of time We have heard your briefs, so I wouldn't spend a lot of time on the briefs If you have something that you think has not been It is out of the way, we've told you don't spend any time on it Let's talk about either A3 or A5 in any order With a quick correction, please The board president did not testify or put it in that statement that the ALJ looked at her and said you're going to lose That's a complete misrepresentation But the record will speak for itself on the bias issue That's the evidence we've got of the bias of the ALJ Yes, correct that clarification We've been talking a lot about the status quo And you've asked whether there has to be a formal board approval of the status quo And the answer is no And where you were looking with what is the status quo, where do we look for that I think the correct direction was to look at the bias factors The term status quo means this is the current state of affairs This is what's going on That's really what you're getting at So it really doesn't need to be a board policy No, there does not need to be a board policy So we can divorce the word status quo with respect to practice from policy In other words, the board, whether it likes it or not If it goes along with a practice within the district And that practice is neither commented on or revoked by the board They can, over a period of time, face themselves with a status quo argument from the union or from anybody else That if they haven't adopted it as a policy, they have not rejected it as a policy But where is there a practice when there is no pre-existing history All we have here are pronouncements And I presume that those pronouncements somehow are aligned with the rules of agency With whether there is an implied or expressed authorization from the board to have someone speak on its behalf We do have some histories Yeah, we do, including the work rules And the work rules clearly enunciate the fact that it's the board policy At least before the union started bargaining on behalf of its people That it was the board policy that seniority was only a factor And the district raised the work rules There's nothing in here, in these work rules, about what we're talking about Don't the written work rules conflict with what the ALJ and the board decided was the status quo? No, no. Why not? There's no conflict there Let's look at all the factors and see if what we have amounts to a status quo And the status quo, what they found was, based on these three incidences And there were only three They found that seniority trumps everything else with respect to these vacancies Now the union wants us to focus just on this little group And that this little group, as far as this little group goes Seniority will be the factor that decides who gets the job And on what basis? On the basis of practice or pronouncements? On the basis of... The status quo Yes You haven't done it very often, but when you've done it But what it indicates I'm not even, I give up on asking what is the status quo What indicates its presence? The fact is it indicates its presence And you've asked, there's a little group We're dealing with a little group because the issue is only about Assignment of the 12-month schedule within the guidance office Within the guidance office, not even outside the guidance office It's not about jobs, it's not about retirement, it's not about positions It's just this one little guidance office And as far as that goes, the status quo is, according to the board The Illinois Educational Labor Relations Board Now the status quo is, seniority trumps everything else And there's no way we should try to read that to go beyond that And that's simply created by a pronouncement In other words, it's someone whose authorization to speak is not questioned Set up This is what we're going to do as far as you're concerned At that point, the board is locked in to what is now a status quo The board might not be locked in Locked in so that it is no longer able to unilaterally contravene that statement The writing here, the memo of the superintendent Holding out to the faculty and staff The most senior guidance secretary will have the 12-month position Together with the most seniority You're sticking to your guns, that's what happens And then you have, the last factor if I may, is the administrator's statement Saying, we're going to act in accordance with that practice They both said, yeah, when there's a vacancy But only for the people in the guidance office For all the rest of you clerical people If there are vacancies in any other clerical positions Or if we're going to be filling 12-month positions from 10-and-a-half-month eligible people For everybody outside the guidance office, seniority is just a factor Not the determining factor It's only the guidance people for whom seniority will trump everything else This would make this, I think, a very unusual school district It would also, I think, raise the hair on the back of the necks Of a lot of clerical people represented by this union And discover that these guidance employees are selected simply on the basis of seniority But the rest of us have to go through the vetting Which would determine whether or not Who's best qualified for the job based on everything And that's not going to create a problem for the unions, huh? We're not saying who's qualified for this job Or who gets the job Or if jobs are still based on seniority It's not the issue It's who is assigned the 12-month schedule Out of the three jobs that exist in the guidance office So they created this, you want to call it a I wouldn't say it's a policy Well, it's our labor relations board that has dictated this But now you're both agreeing, the union and you are both agreeing It only applies to the guidance office Because that's what the issue was You know, it's really, it's really not This particular term and condition of employment Only applies to the guidance office It's really not central to the matter at hand But it has some pertinency In that, in this particular case The union turned down a settlement In favor of litigation Because of the importance of a principle I cannot believe that the principle that it is fighting this battle for Is what happens to the three jobs open in this particular office I think you expect a much broader ramification And implications of what we do And that, we have a problem with Because somebody, whether it's the union or somebody else Is going to say, this case stands for the proposition That seniority with respect to clerical personnel in school districts Trumps everything else If you have a practice, if you have practiced Even if it's inadvertent Of appointing the person who's most senior You can no longer argue that, well that was only one factor There were other factors we considered Now you're going to be confronted with a decision that says Nope, seniority is it, nothing else At least for Thornton Maybe not for other school districts Because they haven't gotten trapped in this Through three jobs See that's the, you know, part of the problem with this Is that this thing, the board The Illinois Educational Labor Relations Board Has now created a status quo policy For something that occurred over a period of less than two years And involves only three instances of behavior As opposed to Vienna where for ten years The Vienna school district had consistently conformed To what had been effective incidentally at that time And to this day is a step Is a step procedure for compensating teachers as they move along It's been the practice in Chicago public schools And in most of the school districts throughout the state And in Vienna it has been going on for ten consecutive years So it was easy for Justice McCullough to say This was the status quo Because it was the status quo All you had to do was look at a ten year history And there's less of a period of time here Nothing that says status quo necessarily And that's a factor to consider Okay, now we have to write an opinion or an order Do we write our opinion or our order in such a way As to confine this to just the guidance office At Thornton Fractional High School? Should we specifically state that this only applies To the guidance department at Thornton Fractional? It only does apply to the guidance department at Thornton Fractional And it should not be taken as precedent for anything else? Should we say that? Do we have the Attorney General's informator to say that? Well, it wouldn't be Why don't you just object to it? What are the elements of the fact that I'm not trying to evade the question But you don't want to be locked in You don't want to be locked into an opinion that only applies To the guidance department at Thornton Fractional High School You want a policy that states that Status quo can be determined on the basis of this set of facts That's what you really want The opinion I would like is that This is enough to establish status quo And that's the administrator's statement This is enough to establish status quo When we look at the fact that there's a status quo It's not a clearly erroneous determination Back to your specific point about long-standing You gave three paths I mean, there wasn't a 10-year history But that's when the vacancy came up Could I interrupt you? I want to know where it is that you say that Either the principal or the One of them said that when there's a vacancy This is the policy that we're going to implement Where is that? You said that there was a statement that When there is a vacancy We are going to implement a policy of 10 years There's two administrators Assistant Superintendent Correa Who told the employee Ms. Seibel Ms. Seibel said that the assistant superintendent And the assistant superintendent testify And do not deny that statement That what? That when the vacancy is filled And this is why I keep saying it's about schedule Not job Districts can create some confusion by saying Who is hired? Who is the best qualified? Irrelevant It's about assignment schedule When is the vacancy? Well, with respect to that vacancy It will be a 10 and a half month position Or a 12 month position Depending on the seniority of the person So the administrators are holding that out Yeah, we're going to act the way we acted before The assistant principal Who is Ms. Murieko's supervisor Does the same thing When was the situation for you? Because still you have the most seniority So if you were to get that job It would be a 12 month schedule And from those two statements The document that set out the 12 Versus 10 and a half And then there was one other thing So the principal's original statement at the time Telling staff We're going seniority on this And that's going to be the status quo I have one other question in this The precise language taken from the ruling of the court The prima facie case for animus violation 14A3 Okay, A3 The record has to show that she engaged in protected union activity Which she did Okay Here's my problem as we move through this The district was aware of the fact of that activity Of course they were She was a union rep And they were bargaining Three The district took adverse action against her For engaging in that activity When was the job filled that she was eligible for? The job was filled in June of 2007 2007 So there had already been union activity in which she participated By the time that job was filled The union had already been declared to be the exclusive representative for The union was certified in June of 2006 And six Bargaining goes to the first part of the year Okay So ultimately the adverse action taken against her Was the failure to put her in the job Although she was eligible for it by seniority With the qualifications Let me know what your qualifications Because this question The 12 month schedule Okay Okay See that isn't quite clear when you're talking about animus here Is that the reason that they didn't give her the job Was because of her union activity That has to be inferred from what? What I'm trying to determine I got an answer from Mr. Scariano I may have answered too quickly I don't know Is there a linkage between A5 and A3? If we find no A5, can we still find an A3? That's a good point I wanted to make I think what you said earlier Is exactly the way to look at it That there are two distinct Unfair way of practicing Each has its own elements And they're completely independent of each other You find one without the other Do you agree with that? Yes I think you're looking at practice For each But wouldn't the adverse Wouldn't the adverse action taken against Mariako Only be adverse if it were a Status quo that was violated You don't need a status quo You need There's no dispute about the first two elements So even though there was no status quo If she didn't get the job We could use that as proof She received an adverse action Because she didn't get the job She didn't get the job And that's a possibility of animus But in order to maintain it independently On the basis of the animus You would have to show That there were no legitimate reasons For denying it If there were legitimate reasons Notwithstanding the animus It would not support a cause of action Do you agree with that? We're not trying to take away your point If you put forward a legitimate reason And it would not be textual Then that might be the case But that's not what's happening here In fact, it actually goes to the union's Premonition case The union's part of the union's premonition case Is And she didn't get the assignment That's on the schedule Because of her union activity Is that finding a clear rebuttal? No Do we need any of the hearsay stuff in the record To support this position of animus? Like for the example The statement that somebody attributed But he never said Do we need all that? You don't need it It's a quick answer I mean, what does it mean When somebody says Be careful what you wish for? Are we supposed to interpret that As something that was In some I've looked at the record And the context in which That statement was made And for the life of me I can't see how it was directed At Marieko specifically It seemed to be a general reference To the whole group of people Who were in that category It seems likely that she's speaking To Ms. Marieko But we're supposed to infer As the board obviously did The board made an inference From us From your heart One factor In the Here's the package Of anti-union Motivation evidence Is some comments Including that one That exhibits a Hostility To union activity Okay But I think I understand your position And if you ask about The assistant principal The The ARJ was not Optimistic to make a ruling That that was hearsay That's something that The board But even apart from hearsay That's someone who We would want To hear from The decision maker Would want to hear from Well you folks can deal With hearsay We can't But you can At the administrative level All of that stuff Comes in when we Like it or not It's called Missing witness In the fact that That was someone who He made a recommendation To fill the vacancy And he said Earlier to Ms. Marieko This is going to be Done based on Seniority And yet We never hear From that person Well why do you Say that And the ARJ Seemed to think That was important to me That Draw That's worthy of A missing inference Which goes to Establishing the Preliminary In the Preliminary But the inference Being that If he were here To rebut that He would be But to the Extent That Fiatras Fiatra Gentry Which is A Statement Is A Part Of the evidence Establishing The Form Formulation Of a policy By the board We would have To conclude That Gentry Had Authority Express Or imply To speak On behalf of the board And I I don't see how You avoid That Now It Could Be Secondary Evidence Of Sort Dealing With The Culture Of The Board Within But That Is Not Specific To The ALJ However The Progressive View Of Implied Authority Is That In the Absence Of Express Authority Which He May Not Have Because His Job May Not Entail As Part Of His Responsibilities A Duty On His Own There Is A More Progressive View That Says That Even Though A Truck Driver Isn't Authorized To Make Admissions On Behalf Of A Trucking Company Nevertheless Since He Drives A Truck He Can State Whom He Hit And How He Did Them That Is Implicit In His Job And That Would Be The Defense For The Authority Of The Trucking Company And That Would Be The Defense For The Authority Of The Trucking Company And That Would Be The Defense For The Authority Of The Trucking Company And That Would Be For The Authority Of The Trucking Company And That Would Be The Defense For The Authority Of The Trucking Company And That Would Be The Defense For The Authority Of The Trucking Company And That Would Be The Defense For The Authority Of The Trucking Company And That Would Be The Defense For The Trucking Company And That Would Be The Defense For The Authority Of The Trucking Company And That Would Be The Defense For The Authority Of The Trucking Company For The Authority Of The Trucking Company And That Would Be The Defense For The Authority Of The Trucking Company And Would Be The Defense For The Authority Of The Trucking Company And That Would Be The Defense For The Authority Of The Trucking Company And That Would Be The Defense For The Authority Of The Trucking Company And That Would Be The Defense For The Authority Of The Trucking Company And That Would Be The Defense For The Authority Of The Trucking Company And That Would Be The Defense For The Authority Of The Trucking Company And That Would Be The Defense For The That Defense For The Authority Of The Trucking Company And That Would Be The Defense For The Authority Of The Authority Of The Trucking Company And That Would Be The Defense For The Authority Of The Trucking Company And