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December 29, 2000

NO. 4-00-0030

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

_______________________________________________________________

JUSTICE McCULLOUGH delivered the opinion of the court:

Petitioner, Board of Education, City of Peoria SchoolDistrict No. 150 (District), seeks direct review (115 ILCS 5/16(a)(West 1998); 155 Ill. 2d R. 335) of a decision of the IllinoisEducational Labor Relations Board (IELRB) finding that the Districthad violated sections 14(a)(1), (a)(3), and (a)(4) of the IllinoisEducational Labor Relations Act (Act) (115 ILCS 5/14(a)(1), (a)(3),(a)(4) (West 1998)) and reinstating respondent David Reeise to theposition of custodian, or a substantially equivalent position, andmaking him whole for his lost wages and benefits, plus interest. Peoria School District No. 150, 15 Pub. Employee Rep. (Ill.) par.1034, No. 98-CA-0023-S (IELRB April 6, 1999). On review, both theIELRB and Reeise, pro se, have filed responsive briefs. Hereinafter, Reeise will be referred to as respondent. The issues arewhether (1) the plurality decision of the IELRB and the administrative law judge (ALJ) properly invoked the missing witness ruleagainst the District and (2) the IELRB decision is against themanifest weight of the evidence. We affirm.

Taken with the case are two motions by respondent Reeiseto supplement the record on review. No objections have been filed. However, the motions demonstrate that the documents sought to besupplemented were not before the ALJ or IELRB when their respectivedecisions were made. On review of an administrative agencydecision, this court is limited to considering the record that wasbefore the agency and may not consider new or additional evidence. North Avenue Properties, L.L.C. v. Zoning Board of Appeals, 312Ill. App. 3d 182, 185, 726 N.E.2d 65, 68 (2000), quoting section 3-110 of the Administrative Review Law (735 ILCS 5/3-110 (West1998)). The Administrative Review Law applies to this directreview proceeding. 115 ILCS 5/16(a) (West 1998). Respondent's twomotions to supplement the record with material that was not in therecord of the administrative agency are denied.

On May 4, 2000, this court previously allowed petitioner's motion to supplement the record with very similar materialrelating to the IELRB's finding that respondent was a member of aunion bargaining team in 1996 and 1997. The petitioner sought to"correct errata" by submitting minutes of the collective-bargainingcommittee dated December 9, 1994, and September 3, 1997. TheIELRB's objection was not received by this court before thepetitioner's motion was granted, and on May 24, 2000, the IELRB'smotion for reconsideration was denied. It is clear, however, thatthe documents submitted by petitioner to supplement the record werenot before the IELRB and were never part of the record.

We now reconsider and grant the IELRB's motion toreconsider the earlier ruling on petitioner's motion to supplementthe record and deny petitioner's motion to supplement the record. See People v. Nichols, 143 Ill. App. 3d 673, 676, 493 N.E.2d 677,679 (1986).

The District first argues that the plurality decision ofthe IELRB and the ALJ improperly applied the missing witness rule. The IELRB accepted the ALJ's resolution of the credibility ofwitnesses. The District particularly attacks this resolution inrespect to whether respondent intimidated a "Mrs. Ernest" bylunging at her during a conversation. The allegation was made ina letter from Aurthur Perkins, principal of Harrison PrimarySchool, to Jerome A. Greer, the District's director of humanresources. Although she did not testify, Ernest is identified inthe IELRB decision as a teacher's aide.

The IELRB determined that respondent did not act tointimidate Ernest as Perkins alleged in her letter. In a footnote,the plurality decision of the IELRB explains its reliance on theALJ's determination of Perkins' credibility and the ALJ's conclusion that, had Ernest been called to testify, she would havetestified unfavorably to the District. This conclusion was basedon the fact that the District did not call Ernest to testify.

The missing witness rule allows the trier of fact to drawan adverse inference if (1) the missing witness was under thecontrol of the party against whom the inference is drawn, (2) thewitness could have been produced in the exercise of reasonablediligence, (3) the witness was not equally available to the partyin whose favor the inference is drawn, (4) a reasonably prudentperson would have produced the witness if the party believed thetestimony would be favorable, and (5) no reasonable excuse for thefailure to produce the witness is shown. See Simmons v. Universityof Chicago Hospitals & Clinics, 162 Ill. 2d 1, 7, 642 N.E.2d 107,110 (1994); Illinois Pattern Jury Instructions, Civil, No. 5.01 (3ded. 1995) (hereinafter IPI Civil 3d).

The ALJ's recommended decision and order includes thefollowing paragraph in its findings of fact:

"Where the evidence is in conflict, myfindings are based on the testimony that wascredible. I have tried to make clear thepoints at which a material credibility disputeexists. In general, I found the testimony ofPrincipal Perkins to be less credible thanthat of Reeise where the evidence is in conflict. Perkins was generally evasive, denyingrecollection of key incidents, and she gaveinconsistent testimony about some incidents. Based on my observation of her testimony, Ibelieve she was primarily concerned withjustifying her initiation of Reeise's discharge. In addition, the District did notcall other witnesses employed at HarrisonSchool who might have lent credibility toPerkins' version of events, even though suchwitnesses are obviously within the District'scontrol."

The ALJ also reasoned: "The District did not call Ernestas a witness to lend support to Perkins' version of the incident orto submit to cross-examination about it. I conclude that hertestimony would have been unfavorable to the District."

The determination as to whom to call as a witness is leftto each party. The missing witness inference was not the onlybasis for the ALJ's findings. The ALJ did not find Perkinscredible. Perkins was petitioner's only witness as to thisincident. The ALJ found respondent and custodian Eddie Washingtonmore credible than Perkins about the circumstances of thisincident. Her decision stated that although Perkins was "generallyevasive, denying recollection of key incidents, and she gaveinconsistent testimony about some incidents," "the District did notcall other witnesses employed at Harrison School who might havelent credibility to Perkins' version of events, even though suchwitnesses are obviously within the District's control." Applyingthe factors set forth in IPI Civil 3d No. 5.01 and Simmons, thestatements made by the ALJ with respect to the failure to callwitnesses did not amount to reversible error.

The remaining issue is whether the IELRB decision isagainst the manifest weight of the evidence. The IELRB found thatthe District violated sections 14(a)(1), (a)(3), and (a)(4) of theAct. Section 14(a)(3) prohibits discrimination in hiring, tenure,or any term or condition of employment to encourage or discouragemembership in any employee organization. 115 ILCS 5/14(a)(3) (West1998). Section 14(a)(4) prohibits discharging or otherwisediscriminating against an employee for signing or filing anaffidavit, authorization card, petition, or complaint, or givingany information or testimony under the Act. 115 ILCS 5/14(a)(4)(West 1998). Section 14(a)(1) prohibits interfering, restraining,or coercing employees in the exercise of rights guaranteed underthe Act. 115 ILCS 5/14(a)(1) (West 1998).

Our review extends to all questions of law and fact. TheIELRB's findings of fact are considered prima facie true andcorrect. 735 ILCS 5/3-110 (West 1998). The decision of the IELRBwill not be set aside unless the IELRB exercised its authority inan arbitrary or capricious manner or the decision is against themanifest weight of the evidence. Hardin County Education Ass'n v.Illinois Educational Labor Relations Board, 174 Ill. App. 3d 168,178, 528 N.E.2d 737, 743 (1988). It is not the function of thiscourt to reweigh evidence or make an independent determination ofthe facts. Abrahamson v. Illinois Department of ProfessionalRegulation, 153 Ill. 2d 76, 88, 606 N.E.2d 1111, 1117 (1992). Ifthe question involved is a question of law, this court is not boundby the IELRB's decision (City of Freeport v. Illinois State LaborRelations Board, 135 Ill. 2d 499, 507, 554 N.E.2d 155, 159-60(1990)), but deference will be given to the interpretation of astatute by an agency charged with its administration and enforcement (Central City Education Ass'n v. Illinois Educational LaborRelations Board, 149 Ill. 2d 496, 510, 599 N.E.2d 892, 898 (1992)).

Although charged under different subsections of section14 of the Act, all of the unfair labor practices in this case arebased on the District's action of discharging respondent from hisemployment. As relevant to this case, to establish a prima faciecase of a section 14(a)(4) violation, the respondent must provethat he used or participated in the IELRB's processes, the Districtwas aware of those actions, and the District discharged him in partbecause of that activity. A prima facie case of a section 14(a)(3)violation is made by presenting evidence showing that the employeewas engaged in activity protected by section 14(a)(3), the Districtwas aware of that activity, and he was discharged for engaging inthat activity. In determining whether the District's conductviolated section 14(a)(1) of the Act, the test is whether theDistrict's conduct "may reasonably be said to have a tendency tointerfere with the free exercise of employee rights under the Act." Georgetown-Ridge Farm Community Unit School District No. 4 v.Illinois Educational Labor Relations Board, 239 Ill. App. 3d 428,465-66, 606 N.E.2d 667, 690 (1992). The IELRB has applied section14(a)(1) to prohibit interference with concerted acts of mutual aidor protection, including activity not involving a union. Crete-Monee School District No. 201-U, 7 Pub. Employee Rep. (Ill.) par.1068, No. 89-CA-0009-C, at IX-274 (IELRB May 24, 1991).

Once a prima facie showing has been made of the dischargebeing an unfair labor practice, the burden shifts to the Districtto demonstrate, by a preponderance of the evidence, that thedischarge would have occurred notwithstanding the protectedactivity. Georgetown-Ridge Farm, 239 Ill. App. 3d at 464, 606N.E.2d at 689. The determination of the District's motive is aquestion of fact which the IELRB may infer from direct or circumstantial evidence, and the IELRB's finding as to motivation must beaccepted if supported by substantial evidence. City of Burbank v.Illinois State Labor Relations Board, 128 Ill. 2d 335, 345, 538N.E.2d 1146, 1150 (1989).

Respondent testified that he had complained to unionrepresentatives about overtime issues, teachers working summertime,replacement workers, and custodians doing carpenter work. Respondent was a member of Local 8 of the International Union ofFiremen and Oilers, SEIU, AFL-CIO, and Local 183 of the International Brotherhood of Carpenters. He had also pursued previousunfair labor practice charges against the District, the latest ofwhich was resolved by this court in November 1997, months before hewas discharged. Reeise v. Illinois Educational Labor RelationsBoard, 292 Ill. App. 3d 1135, 717 N.E.2d 866 (1997) (unpublishedorder under Supreme Court Rule 23).

By the nature of respondent's activities, it would bedifficult to find that the District was not aware of his protectedactivities. Perkins testified that respondent had presented herwith grievances for her signatures and that overtime was never anissue until respondent was assigned to her building and raised theissue. Rich Traenkenschuh and Joe L. Jackson testified that thehead custodian, Phil Shadid, told them that the respondent was atroublemaker and to document respondent's activities.

The IELRB could also infer from the evidence thatrespondent was discharged in part for his protected activities. See Georgetown-Ridge Farm, 239 Ill. App. 3d at 464-65, 606 N.E.2dat 689 (discussing a threat to fire all part-time custodiansbecause of a lawsuit filed by one of them). As already noted, theIELRB found that Perkins told respondent in front of otherwitnesses whose affidavits were presented to the IELRB thatrespondent should not have filed charges against the District andshe wanted him fired. The IELRB could infer from the evidence thatthe "charges" referred to by Perkins included the unfair laborpractices charge and that she was not exclusively referring toclaims he had filed with the Department of Human Rights.

Finally, the IELRB found that the District did notpresent sufficient evidence from which it could find that respondent would have been discharged for his poor work performancenotwithstanding his protected activities. The IELRB found thatthere was disproportionate treatment by Perkins and the District indisciplining respondent and two other custodians prior to his beingfired. Subsequent to a February 10, 1995, settlement agreementbetween respondent and the District that "purged" respondent'spersonnel file of all letters relating to prior disciplinaryactions, respondent received a warning on March 21, 1995; a 15-daysuspension on April 24, 1995; and a 30-day suspension on November6, 1995. No other disciplinary actions were taken againstrespondent prior to his discharge on March 9, 1998. The IELRBadopted the ALJ's finding of lack of credibility of Perkinsconcerning the performance of respondent's job duties, basicallyfinding that Perkins was trying to manufacture reasons to firerespondent. Questions of credibility are in general to bedetermined by the ALJ and IELRB. The supreme court's statements inParro v. Industrial Comm'n, 167 Ill. 2d 385, 396, 657 N.E.2d 882,886-87 (1995), are appropriate here:

"The evidence in the case at bar couldconceivably support a variety of inferences,and we will not substitute our judgment forthat of the Commission merely because we mighthave drawn different inferences from the samerecord. [Citations.] '[I]t is axiomatic thatthis court will not disregard or reject permissible inferences drawn by the Commissionmerely because other inferences might bedrawn, nor will we substitute our judgment forthat of the Commission unless its findings areagainst the manifest weight of the evidence. [Citations.]' (Castaneda v. Industrial Comm'n(1983), 97 Ill. 2d 338, 341.) It is theCommission's role to judge the credibility ofthe witnesses, determine the weight of theirtestimony, and draw appropriate inferencesfrom the evidence."

This court is not the fact finder. By this order, however, we donot mean to indicate condonation or approval of the conduct ofrespondent.

The decision of the IELRB is not against the manifestweight of the evidence. The decision of the IELRB is affirmed.

Affirmed.

STEIGMANN, P.J., and COOK, J., concur.