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.