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Third Division
December 24, 2003

No. 1-02-0960

JUSTICE HALL delivered the opinion of the court:

The Metropolitan Alliance of Police, Cook County Sheriff'sCorrectional Officers Chapter 222 (Petitioner-Union), seeksdirect review of an administrative decision and order of theLocal Panel of the Illinois State Labor Relations Board (Board),finding that Petitioner-Union violated section 10(b)(1) of theIllinois Public Labor Relations Act (Act) (5 ILCS 315/10(b)(1)(West 2000)), by threatening not to process any furthergrievances on behalf of Joe E. Cunigan and refusing to pursue hissuspension grievance to arbitration.

On appeal, Petitioner-Union contends that: (1) the Board'saction in reversing the administrative law judge's partialdismissal of Cunigan's unfair labor practice charge was clearlyerroneous; (2) the Board's decision and order was premised on animproper standard of union animus; and (3) the Board's imposedremedy was in contravention of applicable statutory standards. For the reasons that follow, we affirm the Board's decision andorder.

FACTUAL BACKGROUND

The facts giving rise to this appeal are not in dispute. Cunigan is a correctional officer who began his employment withthe sheriff of Cook County in 1978. On November 16, 1999,Cunigan began circulating a petition among his fellowcorrectional officers seeking signatures for a bid to have theInternational Brotherhood of Teamsters, Local 714 (Teamsters),replace Petitioner-Union as the correctional officers' exclusivebargaining representative. Earlier, in December 1998, the Boardhad certified Petitioner-Union as the exclusive bargainingrepresentative of the sheriff's correctional officers, therebysupplanting the Teamsters.

On November 18, 1999, two days after Cunigan begansoliciting union-member signatures, the executive director of theCook County department of corrections issued a memorandum to allcorrectional officers forbidding the officers from solicitingsuch signatures while on duty or within the perimeter of the CookCounty department of corrections. Shortly thereafter, thememorandum was amended to allow correctional officers to solicitsignatures within the perimeter of the Cook County department ofcorrections provided the officers were off duty.

On November 25, 1999, Cunigan was suspended for three dayswithout pay, after he was allegedly observed sleeping on duty. On December 16, 1999, Cunigan and his union steward submitted agrievance at the first step of the five-step grievance process,challenging the three-day suspension on the ground that Cuniganwas performing his assigned duties at the precise time he wasallegedly observed sleeping. Cunigan's grievance was denied atthe first, second, and third steps of the grievance procedure,whereupon he requested his union steward to pursue the grievanceto the fourth step. A fourth-step hearing on Cunigan's grievancewas conducted and afterwards on June 30, 2000, the grievance wasdenied, but the imposed suspension was reduced from three days totwo days.

On July 20, 2000, Cunigan wrote to Petitioner-Unionpresident, Joseph M. Andalina, requesting that the union pursuehis grievance to the fifth step, arbitration. In a letter datedAugust 4, 2000, Andalina replied in relevant part as follows:

"I am in receipt of your letter regarding yourgrievance # 99-09-292 and your desire to seek arbitration. The decision not to arbitrate your case was made afterreview with your Chief Union Steward and assigned attorney. This was based on the allegation of your sleeping on dutyand not for your attempt to collect signatures for theTeamsters to de-certify from M.A.P.

M.A.P. does not pursue grievances for individuals whoare working for other unions. If you were collecting thesesignatures for the Teamsters, you were not performing anyobvious union duties for this union, which currentlyrepresents all of the Correctional Officers. That in and ofitself would nullify this union for pursuing any grievancesand discipline for you since you were not doing anyauthorized union duties.

Further, the paperwork submitted by others to yourChief Union Steward was able to lessen your suspension fromfive (5) days to two (2) days, and his labors demonstratesavings of three suspension days for you.

I am not aware of any evidence rebutting your actions. If you have any, or someone to confirm that you were notsleeping on duty, I will pass the case on to the full M.A.P.Board and they will ultimately decide on the issue as towhether to appeal your case or not. You would have tosubmit evidence that you were not sleeping and show thatyour employer actually retaliated against you for your otheractivities.

I do not vote except in any ties. Send your evidenceto either M.A.P. or your Chief Union Steward for furtherreview. I will pass your letter and my answer and commentsfrom your Chief Union Steward to all of our Board members inanticipation of the receipt of your evidence."

Pursuant to its regular procedure, a member of thePetitioner-Union's executive board contacted Cunigan's unionsteward in order to obtain information regarding the history ofthe grievance and its subject matter. After reviewing the fileon Cunigan's grievance, the executive board initially voted totable the grievance pending receipt of a written statement fromCunigan outlining and explaining the incident that led to hissuspension. The executive board, however, ultimately votedagainst arbitrating Cunigan's grievance, without being in receiptof his written explanatory statement.⁽¹⁾

As the grounds for its refusal to pursue Cunigan's grievanceto arbitration, the executive board cited both the failure ofCunigan to submit a written explanatory statement and the successof the union steward in getting Cunigan's suspension reduced.⁽²⁾

On August 23, 2000, Cunigan filed an unfair labor practicecharge with the Board, alleging that the Petitioner-Union engagedin an unfair labor practice in violation of section 10(b)(1) ofthe Act, when the union refused to arbitrate his suspensiongrievance. In the charge, Cunigan maintained that thePetitioner-Union had refused to arbitrate the grievance inretaliation for his activities in support of a rival union, theTeamsters. Cunigan sought to have his grievance arbitrated or bereimbursed for the two days he was suspended.

On March 27, 2001, a hearing regarding the charge was heldbefore Administrative Law Judge John F. Brosnan. Cunigan offeredhis own written entries in his logbook along with correspondingconfirming signatures made by the lieutenant and captain whoallegedly had observed him sleeping on duty, as evidence to showthat at the time he was alleged to have been asleep, he wasactually checking on prisoners.⁽³⁾

On June 29, 2001, Judge Brosnan issued a recommendeddecision and order finding that Petitioner-Union had violatedsection 10(b)(1) of Act when it threatened not to processgrievances filed by Cunigan due to his support of a rival union. However, Judge Brosnan also found that even though Petitioner-Union had intentionally refused to arbitrate Cunigan's grievance,this refusal did not violate Petitioner-Union's duty of fairrepresentation, concluding that there was insufficient evidenceestablishing that this intentional conduct was done inretaliation for Cunigan's support of a rival union or for anyother unlawful reason.

Cunigan filed timely exceptions to Judge Brosnan'sRecommended decision and order, to which Petitioner-Union filedno response. After reviewing the record and exceptions, theBoard issued a written decision and order on March 12, 2002, inwhich it reversed Judge Brosnan's partial dismissal. MetropolitanAlliance of Police (Cunigan), 18 Pub. Employee Rep. (Ill.) par.3013, No. L-CB-01-006 (Illinois Labor Relations Board, LocalPanel, March 12, 2002). The Board agreed with the Judge'sdetermination that Petitioner-Union's threatened refusal toprocess grievances filed by Cunigan due to his activities insupport of a rival union, violated section 10(b)(1) of Act. However, in contrast to the judge, the Board found thatPetitioner-Union's decision not to pursue Cunigan's grievance toarbitration also violated section 10(b)(1) of the Act. Petitioner-Union filed a petition for direct administrativereview of the Board's decision and order.

ANALYSIS

I. Standard of Review

Judicial review of decisions of the Board is governed by theAdministrative Review Law (735 ILCS 5/3-101 et seq. (West 2000);City of Freeport v. Illinois State Labor Relations Board, 135Ill. 2d 499, 507, 554 N.E.2d 155 (1990)). Judicial reviewextends to all questions of law and fact presented in the record.City of Tuscola v. Illinois State Labor Relations Board, 314 Ill.App. 3d 731, 734, 732 N.E.2d 784 (2000).

The Board's findings of fact are held prima facie true andcorrect and therefore will be reversed on appeal only if they areagainst the manifest weight of the evidence. Illinois FraternalOrder of Police Labor Council v. Illinois Local Labor RelationsBoard, 319 Ill. App. 3d 729, 736, 745 N.E.2d 647 (2001). Thedecision is against the manifest weight of the evidence only ifthe opposite conclusion is clearly evident. City of Tuscola, 314Ill. App. 3d at 734.

The Board's conclusions of law, however, are not entitled tothe same deference and we review them de novo. Illinois FraternalOrder of Police, 319 Ill. App. 3d at 736. Nonetheless, reviewingcourts generally accord substantial deference to theinterpretation placed on a statute by the agency charged with itsadministration and enforcement. County of Cook v. LicensedPractical Nurses Ass'n, 284 Ill. App. 3d 145, 152, 671 N.E.2d 787(1996). An agency's statutory interpretation will be rejected ifit is unreasonable or erroneous. City of Tuscola, 314 Ill. App.3d at 734.

When mixed questions of law and fact are involved, requiringan examination of the legal effect of a given set of facts, theBoard's resolution of such questions will be upheld on review if"reasonable, consistent with labor law[,] and based on findingssupported by substantial evidence." Northwest Mosquito AbatementDistrict v. Illinois State Labor Relations Board, 303 Ill. App.3d 735, 742, 708 N.E.2d 548 (1999). Decisions by the Board thatinvolve mixed questions of law and fact will be overturned onlyif found to be clearly erroneous. Illinois Fraternal Order ofPolice, 319 Ill. App. 3d at 736, citing City of Belvidere v.Illinois State Labor Relations Board, 181 Ill. 2d 191, 205, 692N.E.2d 295 (1998).

In the present case, the relevant facts surroundingCunigan's grievance and the Petitioner-Union's handling of thegrievance are undisputed. Here, we must review the decision ofthe Board to determine whether the Board correctly found thatPetitioner-Union committed an unfair labor practice in violationof section 10(b)(1) of the Act, when the union threatened not toprocess any further grievances on behalf of Cunigan and refusedto arbitrate his suspension grievance. Consequently, this casepresents a mixed question of law and fact since it involves anexamination of the legal effect of a given set of facts. Thus,the Board's decision should be affirmed unless it is found to beclearly erroneous.

II. Unfair Labor Practice - Section 10(b)(1)

Petitioner-Union first contends that the Board's action inreversing Judge Brosnan's partial dismissal of Cunigan's unfairlabor practice charge was against the manifest weight of theevidence. We must reject this contention.

Although section 11(a) of the Act allows the Board toappoint a qualified hearing officer or administrative law judgeto hear complaints of unfair labor practices (5 ILCS 315/11(a)(West 2000)), the Board retains the discretion to "adopt all,part or none" of an administrative law judge's recommendeddecision and order depending on the extent to which it isconsistent with the record and applicable law. 80 Ill. Adm. Code