No. 3--03--0065

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

JUSTICE McDADE delivered the opinion of the court:

This appeal from the Illinois Labor Relations Board involvesa dispute between the respondents, the Bolingbrook Firefighter'sAssociation and various members and officers, and the petitionerthe Village of Bolingbrook. The petitioner argues that it wasimproper for the Board to deny a variance from the deadline forfiling an answer in the matter, that the respondents have failedto allege an unfair labor practice, and that the remedy fashionedby the Board exceeded its authority. For the following reasons,we disagree and affirm the Board's decision in favor of therespondents.

BACKGROUND

The Firefighters Association filed an unfair labor practicecharge against the village with the Illinois State LaborRelations Board (ILRB) claiming that the village engaged in anunfair labor relations practice by taking an adverse employmentaction against respondent Jerry Carley, a firefighter and unionofficial, in retaliation for certain protected activities.

The complaint alleged that prior to August 15, 2000, Carleyhad been chosen on various occasions to act as the stationcommander of his fire station. Also prior to the 15th of August,Carley, who was the vice-president of the Bolingbrook Chapter ofthe Firefighter's Association, was lobbying for the establishmentof a "foreign fire insurance board" for the Village ofBolingbrook.

A foreign fire insurance board is a municipal body,authorized by section 11--10--2 of the Municipal Code (65 ILCS5/11--10--2 (West 2003)), and permitted to receive revenues fromthe foreign fire insurance tax for the benefit of the local firedepartment. The foreign fire insurance tax, authorized bysection 11--10--1 of the Municipal Code, (65 ILCS 5/11--10--2(West 2003)), is a 2% tax imposed on specific revenues ofinsurance underwriters not located within the taxing district. The target revenues are those generated from fire insurancepolicies written on property within the taxing district.

At the time of the events relevant to the suit, the Villageof Bolingbrook had levied the foreign fire insurance tax, but hadnot created the tax board. Therefore, revenues from the tax wereplaced in the village's general revenue fund instead of beingallocated for the benefit of the fire department.

Carley began a petition campaign among the firefighters inthe village seeking the formation of the board, so that the taxcould be used for the exclusive benefit of the fire department. The petition was to be submitted to the mayor and village boardof trustees.

On August 15, 2000, Carley was told that he would no longerbe allowed to act as a station commander. The union alleged inits charge that the action was taken in retaliation for Carley'srole in attempting to have the board established. As a result ofthe perceived retaliation, the union filed an unfair laborpractice charge against the village on October 12, 2000. Following a seventeen-month investigation, the ILRB issued acomplaint on behalf of the union on March 12, 2002. Thecomplaint was received by the village on March 14, 2002, and itnotified the defendant that, under Board rules, an answer to thecomplaint had to be filed within 15 days of service or allallegations in the complaint would be deemed admitted. Theanswer was due on March 29, 2002, but the village missed thedeadline.

The village moved for leave to file an answer instanter onApril 9, 2002. In the motion, the village sought a variance fromthe 15 day deadline, alleging that its attorney had been brieflyill and otherwise too busy with other matters to timely file ananswer to the complaint.

On July 19, 2002, the administrative law judge (ALJ)assigned to the case recommended that the request for a variancebe denied, since the village had not alleged any exceptionalcircumstances that would warrant an easing of the rules. The ALJalso recommended that a default judgment be entered against thevillage, finding that it had engaged in an unfair labor practice,and that, as a remedy, Carley be reinstated to his position asacting station commander and that he be granted any back pay towhich he was entitled. The Board adopted the ALJ'srecommendations.

The Village of Bolingbrook appeals that decision.

ANALYSIS

On appeal, the petitioner argues (1) that the ILRB erred innot granting a variance from its rules to allow it to file a lateanswer to the charge, (2) that the firefighters did not establisha prima facie case of an unfair labor practice, and (3) that theremedy ordered was unwarranted and inappropriate in light of thecharged conduct

I. Denial of Variance

Initially, the petitioner argues that it was entitled to avariance from the ILRB rule that requires that an answer to aunfair labor practice charge be submitted within 15 days of thereceipt of the complaint. 80 Ill. Admin. Code