Bloom Township HS Dist. 206 v. Educational Labor Relations Bd., No. 1-98-3254

1st District, March 28, 2000

SECOND DIVISION

JUSTICE GORDON delivered the opinion of the court:

Petitioner Bloom Township High School District 206 (the District) appeals from a decision of the Illinois Educational Labor Relations Board (the Board). In an unfair labor practice charge filed December 9, 1996, and amended on January 13, 1997, respondent Service Employees International Union, Local 1 (the Union), alleged the District violated the Illinois Educational Labor Relations Act (the Act) (115 ILCS 5/1 et seq. (West 1998)) when it discharged respondent Vince Bove, a District custodian, and suspended Morris Bates, also a custodian. Following a hearing, an administrative law judge found there was no violation of the Act. The Union filed exceptions to that decision as to Bove, and the Board subsequently reversed, concluding the District's discharge of Bove did violate the Act. The District argues on appeal that the Board had no jurisdiction to hear the Union's exceptions because they were not timely filed, and therefore the administrative law judge's decision must stand. In addition, the District contends it discharged Bove for a legitimate business reason and not for his protected union activity, and that the Board's reversal therefore is contrary to the law and against the manifest weight of the evidence. For the reasons set forth below, we affirm.

BACKGROUND FACTS

The basic facts involving this case are substantially undisputed.⁽¹⁾

A. The District Policy and Bove's Employment History

Under a District policy dating to January 1988, maintenance and custodial staff were not allowed to leave the building during their 15-minute coffee breaks. In addition, anyone leaving the building during the 30-minute lunch break was required to punch out and then punch back in when returning. If an employee's assigned duties required him to leave the building to empty trash, for example, or to go to another school building on the campus, punching out was not required.

As part of a settlement agreement in a previous unfair labor practice charge, the District and the Union agreed that the punching-in-and-punching-out rule would be strictly enforced beginning with the 1996-97 school year. According to John Dolak, then the District's assistant superintendent for business, the rule was posted at the beginning of that school year.

Bove worked as a custodian at Bloom High School in Chicago Heights, Illinois, from February 1985 until his termination on November 12, 1996. During that time, he received seven written reprimands and two suspensions for improper conduct. Two of the reprimands and both suspensions stemmed in part from violation of the above-mentioned rule.

On February 17, 1987, Bove was warned in writing about his failure to vacuum an entrance rug, and on May 8, 1987, he was given a written reprimand for inadequate cleaning of washrooms. The following October 1, he was reprimanded for being absent from work on September 28, 1987. He was not found during a one-hour search of the building, and thereafter was warned to report to the night foreman when leaving the building and to record his time in and out on his time card.

On February 29, 1988, Bove received a written reprimand and a one-day suspension without pay for being absent from work and failing to follow the requirement to punch in and out. The reprimand stemmed from an incident on February 27 when he could not be found in the school building from 2:55 a.m. to 3:40 a.m. On his return, he said he had been on a coffee break starting at 3:15 a.m. Bove filed a grievance over the one-day suspension, which he served on March 16, 1988, claiming lack of formal notice. The District superintendent denied the grievance.

A reprimand recommending Bove's dismissal was issued the following year. On April 28, 1989, Bove was found in the teachers' lounge watching television with his shoes off and his feet propped up. The May 3 reprimand cited that incident as well as Bove's ongoing failure to punch out and back in when leaving the building. As a result, the District 206 Board of Education (the School Board) suspended Bove for 27 days without pay, noting that this constituted a final warning and that any future misconduct of any type would result in a recommendation for his dismissal.

On January 15, 1993, Bove was reprimanded for failing adequately to clean locker rooms and the school's small gym. A year later, he was reprimanded for failure to use (and for improper use of) the building's security system, which records when an employee enters and leaves an area of the building. In addition, on an occasion in 1992 or 1993, Bove reportedly could not be found in the school building, but there is no indication of any resulting discipline.

B. Bove's Union Activity

The respondent Union is the exclusive representative of custodians employed by the School Board. Besides his 1988 grievance over his one-day suspension, Bove also filed a grievance (apparently in 1995) after being passed over for a plumber's position. In addition, Bove was a central figure in an unfair labor practice charge the Union filed against the School Board in 1995. That charge was later settled. At the hearing on the Union's subsequent charge arising from Bove's dismissal, Dolak, the District's assistant superintendent for business, testified he was aware that Bove was an active union member because Bove attended meetings between the Union and District management.

In June or July of 1996, Bove telephoned Union vice president Nicholas Belsanti and complained that vacant positions in the District were not being filled. He also voiced concern that the custodians' assigned work areas were becoming too large, and that the District was not providing updated job descriptions. In late July, Belsanti and Union representative Dan Baisden met with the Bloom High School custodians, who complained that the Union was not doing enough to make sure the District posted and filled vacant positions.

Bove was acting chief union steward in the fall of 1996. On August 26, 1996, he and other Union members met with District representatives to discuss the posting and filling of job vacancies. Also discussed at that meeting was a District proposal to combine a vacant electrician's position with a supervisory position. Under that proposal, instead of hiring a new electrician, the District would shift those duties to John Romano, the District's supervisor of buildings and grounds. The Union members rejected the proposal. Belsanti testified that Bove and another custodian, Morris Bates, were the most vocal in their opposition, and that Bove was more vocal than Bates. Dolak, the assistant superintendent for business, testified he did not recall either Bove or Bates saying anything about the proposed consolidation.

The two sides met again on September 18, 1996, to discuss the posting and filling of vacant positions. According to Dolak, there was general frustration among the Union members present because of the delay in posting and filling the positions. He added that Dominic Camilleri was the most vocal in voicing that frustration. Dolak also testified that Bates expressed concern that his work area was too big, and that Bove spoke in support of Bates on that issue. Bove testified that the proposed consolidation of the electrician and supervisory positions was again raised and that he and other Union members continued to reject it. Bates testified specifically that he and Bove and Jim Fisher, then the Union's recording secretary, all objected to that proposal at the September 18^th meeting. However, Dolak testified that once the Union rejected the proposal at the August 26^th meeting, "[t]hat was the end of it, as far as we were concerned." He testified that the matter did come up again in talks with Union representatives, but that was in February 1997. Another meeting was held a month later, on October 25, 1996, and job postings again were discussed. Dolak testified that Union member Sherwin Kennedy spoke at that meeting about job postings.

C. Alleged Anti-union Statements

On December 12, 1995, John Romano, the District's supervisor of buildings and grounds, did a building check at Bloom High School but could not find Bove. Custodian Jim Fisher assisted Romano in the search, and they found Bove mopping a stairwell in his area. Bove asked Romano why he was looking for him, and Fisher testified that Romano said, "I'm here to check on you." Bove responded angrily, and Romano suggested they move to a nearby laundry room. According to Fisher, while they were in the laundry room, Romano told Bove he had "orders from across the street" and that "this was a tit for tat because of the grievance" Bove had filed. Romano gave a different account, testifying that he told Bove he must punch out if he went out to lunch and that it was his "God-given right to file a grievance." The administrative law judge (ALJ) found Fisher's testimony more credible on that matter and did not credit Romano's denial.

Fisher also testified that in the spring of 1997, following a meeting on the termination of an employee, Fisher, Romano and foreman Dan Kieper were walking out of the meeting when Romano said the men who had been called "are all telling lies." According to Fisher, Romano also said, "the fucking union that backed these people, they ought to get rid of all of them." Romano also denied those statements, but the ALJ found Fisher's testimony more credible on that conversation as well.

In addition, Fisher testified that, during the summer of 1996, School Board member Robert Maros told him "there's a lot of trouble on the night shift" and that "the men are out of control and we're just going to have to bring them in some." Maros denied making those statements, but again the ALJ credited Fisher's testimony. However, she found that the comment did not necessarily show anti-union animus.

D. The October 16, 1996, Incident

In October 1996 Bove was working the night shift, which started at 3 p.m. and went to 11:30 p.m. On October 16, 1996, two School Board members, Robert Maros and "Mr. Deluca,"⁽²⁾ made a surprise visit to Bloom High School. According to Maros, both he and Deluca had heard reports that the night custodians were not in their work areas during work hours, so they decided to go to the school to determine if the reports were true. Maros also testified they were not looking for any particular custodian that night, and that he did not know Bove prior to October 16. Maros testified that he and Deluca entered the building's maintenance area at 7 or 7:15 p.m. and began looking for Armando Maddamma, the night supervisor. According to Maros, they were unable to find Maddamma and were preparing to leave when Bove entered through the outside doors of the building sometime after 7:30 p.m. Maros said he saw Bove hang a coat in his locker. He also testified that he asked Bove if he punched out when he left and punched in when he returned, and Bove replied that sometimes he did and sometimes he didn't. Maros said the question was a general one and that he was not asking Bove if he punched in and out on that particular night. According to Maros, the conversation ended then, but Bove testified he asked the School Board members if they had seen Maddamma. Bove said he told them if they did see him, to tell him the lights in the field house were not working properly. Maros denied Bove told them that, and denied Bove said anything about the field house. Maros also testified he considered Bove's response that night to be discourteous and that Bove's attitude showed he "didn't really care."

Maros said he and Deluca saw one other custodian in a hallway that night and asked him if he knew where Maddamma was. Maros said they did not know the name of that custodian. Bates testified he saw the two School Board members that night and that Maros asked him where Maddamma was. He said Maros also asked him if anyone punched out "around here," and Bates told him maybe no one went out to lunch that night.

The School Board members reported the incident with Bove to the District's administrators. Dolak testified that Maros told him he saw lights in the parking lot and then saw Bove coming in from the parking lot with his coat on. Maros said he reported that Bove was 15 to 25 minutes late in returning from lunch, which was to have ended at 7:30 p.m.

Near the end of October, Bove attended a meeting in District superintendent Ronald Patton's office to discuss his employment status. Fisher, the Union recording secretary, was called into the meeting as Bove's Union representative. During the meeting, Dolak went over Bove's prior disciplinary history. In addressing the October 16^th incident, Bove said he did not take a lunch break that night because he was busy cleaning the small gym used by the alternative school program. According to Dolak, Bove also explained he had moved his car from one parking lot to another, and said that is probably what the School Board members witnessed when they saw headlights and then saw him coming into the building. On October 30, 1996, Patton, the District superintendent, notified the School Board that the administration was recommending that Bove be terminated.

The School Board met on November 12, 1996, and Bove attended, accompanied by a Union representative and the Union's lawyer. Bove was allowed to explain what happened on October 16^th. According to Dolak, Bove said he was in the area of the field house and was asked by a person who was renting the field house (for volleyball) to assist in turning the lights on. Bove's testimony before the ALJ corresponds with that account. In that testimony, Bove said he noticed people heading for the field house so he went there, and on the way he met a man who was head of the volleyball program. The man asked him for help in turning on the lights and Bove agreed, but when he got to the switches, he was not able to make all of them work. Bove said he told the man he would find Maddamma and tell him to fix the lights. Bove then said he walked through the parking lot to get to the maintenance room in the main building, and that is when he saw Maros.

Dolak gave the School Board a written summary of Bove's disciplinary record, including the October 16, 1996, incident. The School Board voted at the November 12^th meeting to terminate Bove. Maros said he voted to discharge Bove because of his prior disciplinary record and because of the October 16^th incident. He also testified that he was not aware at that time of any union activity on Bove's part. Maros also said Deluca did not vote to terminate Bove.

E. Discipline of Other Employees

Sherwin Kennedy, another custodian, was president of the local Union by September 1996. Sometime in 1996, he received a two-day suspension for not punching in and out. On October 16, 1996, the night of Bove's incident with the School Board members, Kennedy took an extended lunch break. When questioned, he admitted it, and received a letter of reprimand. Dolak testified that Kennedy was given less severe discipline than Bove because Kennedy admitted his wrongdoing and because he had not left the building. Kennedy was subsequently terminated in May 1997 for falsifying a time record and for insubordination. He also had a lengthy record of work-related infractions.

In December 1996, custodian Morris Bates was given a two-day suspension for failing to sweep stairwells in his area, and for being in a gym watching a basketball game when he should have been working. Bates, who also was active in the Union, asserts he did clean the stairwells and that he was in the gym not to watch a basketball game but to find a coworker who had keys to a room Bates was unable to enter. Initially Bates also was charged with leaving trash on an elevator, but a District investigation showed the garbage could not have been his, and the original three-day suspension was then reduced to two.

Nevertheless, other employees who were active in the Union and who spoke out at the meetings with District management were not disciplined.

F. Proceedings Before the Administrative Law Judge and the Illinois Educational Labor Relations Board

Following Bove's dismissal, the Union filed an unfair labor practice charge on December 9, 1996, and an amended charge on January 13, 1997. The Union claimed that both Bove's discharge and Bates' suspension a month later were in retaliation for their active role in the Union, particularly their opposition to the District's proposal to allow Romano to perform both his supervisory duties and those of an electrician. Following an investigation, the executive director of the Illinois Educational Labor Relations Board (the Board) filed a complaint with the Board. Dated April 21, 1997, the complaint alleges the District terminated Bove and disciplined Bates because of their Union activities, and thus violated sections 14(a)(1) and (3) of the Illinois Educational Labor Relations Act (the Act) (115 ILCS 5/14(a)(1), 5/14(a)(3) (West 1998)). A hearing was held on June 9 and 10, 1997, and July 30, 1997, and the Union and District filed post-hearing briefs on September 15, 1997. On November 17, 1997, the ALJ who conducted the hearing issued a recommended decision and order. She found that the Union had established a prima facie case but that the District had proved that Bove and Bates would have been disciplined even if they had not engaged in protected activity. Therefore, she found no violation of sections 14(a)(3) or (1) of the Act. The Union received the decision on November 18, 1997.

By letter dated December 8, 1997, Bove informed the Board he had not received a copy of the decision, and he requested a 30-day extension to file exceptions. Bove also sent letters to the District superintendent and the District's attorneys indicating he intended to ask for an extension. The Board received copies of those letters on December 8, 1997, and it received Bove's request for an extension on December 9. In a letter dated December 8, 1997, the Board granted an extension to January 8, 1998. On that date, the Union filed exceptions to the ALJ's decision as to Bove. By letter dated January 29, 1998, the District requested an extension to February 17, 1998, in which to file a response to the exceptions. The Board received the letter on February 2, 1998, and granted the request. The District's response was filed on February 17, and the Board issued its opinion and order on August 17, 1998. In that opinion, the Board found that the Union had established "a strong prima facie case" but that the District had shown legitimate reasons for discharging Bove. Nevertheless, the Board pointed to evidence demonstrating the District's anti-union motivation, and found the District had failed to show that Bove would have been discharged notwithstanding his Union activity. Hence, the Board found the District did violate sections 14(a)(3) and 14(a)(1) of the Act. This appeal followed.

ANALYSIS

A. The District's Jurisdictional Argument

The District argues Bove was not the proper person to seek an extension to file exceptions and that even if he were, his request was untimely. The District also argues that Bove did not show that compliance with the original deadline would have been unduly burdensome. In addition, the District contends that because the Union received a copy of the ALJ's decision in a timely manner, Bove's claim that he could not comply with the 21-day deadline does not apply to the Union. The District thus asserts the Union's exceptions were untimely filed and therefore the Board lacked jurisdiction to hear them. The Board counters that the District failed to make those arguments when it filed its response to the exceptions, and therefore the jurisdictional arguments are waived. It is true that arguments or objections not raised during administrative proceedings are deemed waived and cannot be asserted for the first time on judicial review. Board of Education of City of Chicago v. Illinois Educational Labor Relations Board, 289 Ill. App. 3d 1019, 1021, 682 N.E.2d 398, 399 (1997) [hereinafter City of Chicago]; Wegmann v. Department of Registration and Education, 61 Ill. App. 3d 352, 357-58, 377 N.E.2d 1297, 1302 (1978). Nevertheless, such waiver does not apply when the jurisdiction of the administrative forum to hear the case is being challenged. Henriksen v. Illinois Racing Board, 293 Ill. App. 3d 569, 571, 688 N.E.2d 771, 773 (1997) (where Illinois Racing Board's jurisdiction was challenged on appeal, court noted that "parties may object to jurisdiction at any time"). Here the District is challenging the Board's jurisdiction to hear the Union's exceptions, and for that reason waiver does not apply. The District has not waived its jurisdictional arguments.

Preliminarily, the standard of review governing the jurisdictional issue must be discussed. The District contends it is a question of law and is therefore reviewed de novo, but the Board argues it is a mixed question of law and fact and is reviewed under a clearly erroneous standard. While an administrative agency's findings on questions of fact are deemed prima facie true and correct and are reversed only if found to be against the manifest weight of the evidence, an agency's findings on a question of law are reviewed de novo. City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 205, 692 N.E.2d 295, 302 (1998). Where the agency's findings are a mixed question of law and fact, the appropriate standard is whether the decision was clearly erroneous, falling between the standard that applies to pure questions of law and that applying to pure questions of fact, "so as to provide some deference to the [agency's] experience and expertise." City of Belvidere, 181 Ill. 2d at 205, 692 N.E.2d at 302.⁽³⁾ We agree with the Board that the issue here is a mixed question of law and fact. In deciding the issue, the Board had to make a factual determination as to when the request for an extension was filed. It also had to make a legal determination as to whether the proper person filed the request and what was the legal effect of submitting the request on that date. Hence the applicable standard of review here is whether the Board's granting of the extension and its assertion of jurisdiction were clearly erroneous. City of Belvidere, 181 Ill. 2d at 205, 692 N.E.2d at 302. We note however that even if the standard of review were de novo, it would make no practical difference in the deference accorded the Board here. Though purely legal issues such as statutory construction are reviewed de novo, "courts will defer to an agency's construction of the statutes it administers unless the agency's interpretation is unreasonable or erroneous." Board of Education of Community High School District No. 155 v. Illinois Educational Labor Relations Board, 247 Ill. App. 3d 337, 344, 617 N.E.2d 269, 274 (1993) [hereinafter District No. 155].

With respect to the argument that the request for extension was improperly brought, the District argues that Bove was the wrong person to submit the request because he was not the party that brought the unfair labor practice charge. Because it was the Union that brought the charge, the District contends it was the Union that should have requested the extension. Since it did not, the District asserts the January 8, 1998, date when the Union filed its exceptions was well beyond the 21-day limit, and the Board therefore had no jurisdiction to hear them.

According to the District, the Board's own rules regarding extensions refer only to "the party" and do not allow "any person affected" to seek an extension. The Illinois Administrative Code provides that:

"In all proceedings before the Board, extensions of time will be granted only upon timely written motion to the General Counsel, if the matter is before the members of the Board, or the presiding hearing officer if the matter is before a hearing officer, and only upon a specific showing that compliance with the deadline would be unduly burdensome for the party seeking the extension, and the extension will not unduly delay the proceeding ***" 80 Ill. Adm. Code