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Colaw v. Univ. Civil Service Merit Bd.

OPINION FILED DECEMBER 24, 1975.

DONALD W. COLAW, PLAINTIFF-APPELLANT,

v.

UNIVERSITY CIVIL SERVICE MERIT BOARD OF THE UNIVERSITY CIVIL SERVICE SYSTEM ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Champaign County; the Hon. FREDERICK S. GREEN, Judge, presiding.

MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:

Plaintiff Donald Colaw was discharged from his employment as broadcast engineer at the University of Illinois following a hearing and decision by the University Civil Service Merit Board. Plaintiff sought administrative review of the Merit Board decision in the Circuit Court of Champaign County. The court affirmed the decision of the Merit Board, as supported by additional findings of fact, and plaintiff appeals.

Plaintiff's discharge resulted from a dispute concerning work assignments of broadcast engineers at a WILL television transmitter station located near Monticello in Piatt County, Illinois, some 30 miles from the Champaign-Urbana campus studios. One engineer was assigned to operate the transmitting station equipment on each shift. The engineers' union, the International Brotherhood of Electrical Workers, Local 702, wanted the University to furnish transportation from the studio to the transmitter site.

When plaintiff was assigned to work at the transmitter on February 1, 1971, he reported instead for work at the campus studio and insisted on being furnished transportation to the transmitter site; his supervisor refused. Plaintiff was then given a 3-day suspension and instructed to report to the transmitter on February 4. On that date plaintiff again reported to the studio and was again refused transportation. After offering plaintiff the alternative of switching assignments with another engineer, the University sent plaintiff a notice of discharge. Plaintiff requested a hearing, and the Hearing Board convened by the Merit Board found that plaintiff "refused to do work assigned" on February 1 and 4 in that "he failed to report to his assigned duty station" at the WILL transmitter. These findings were supplemented by additional findings of facts as follows:

Plaintiff had been an employee of the University for 18 years without evidence of suspension or reprimand until he was given a disciplinary suspension for 3 days on February 1, 1971. Plaintiff appeared for work at 6:30 a.m. on both February 1 and February 4, 1971, at the studio in Urbana, stating that he was ready to work and would work at the transmitter in Piatt County only if the University provided him with transportation. On February 4, 1971, plaintiff and Gene Crowell, the union steward, were in the offices of William R. Bensyl, and "Mr. Bensyl stated that Mr. Colaw must either report to work at the transmitter station in Piatt County as directed or switch shifts with some other employee or be discharged. Mr. Colaw and Mr. Crowell left Mr. Bensyl's office abruptly, claiming that switching with another employee was in violation of the contract and that they were being threatened and intimidated." Plaintiff did go to the Piatt County transmitter on February 4, 1971, and talked with the man on duty there, and he was at the transmitter at 6:30 a.m. on February 5, 1971, and shortly thereafter was directed to shut down and leave. Plaintiff had not previously given his employer any notice whether he would report for work on February 5, 1971, at the transmitter. The schedule of shifts for the television employees had been recently changed so that the selection of working hours would not assure a concurrent selection of place of employment. A grievance concerning transportation and travel time expense for work at the transmitter was pending in the name of the local union for Joe Dickens signed by Gene Crowell and plaintiff. This grievance had not been decided prior to the time in question.

The Merit Board confirmed these findings of its Hearing Board and found that the evidence taken at the hearing sustained the charges of the University against plaintiff and established just cause for discharge.

In his complaint for judicial review of the Merit Board decision, plaintiff alleged that the decision was not supported by the evidence and asked for reinstatement. After hearing arguments of counsel, the circuit court remanded the cause to the Merit Board, directing it to make additional findings of fact without hearing additional evidence. The court specified that the Merit Board should determine: (1) whether the offer found to have been made by Mr. Bensyl was expressly or impliedly to remain open for consideration until 6:30 a.m. February 5, 1971; (2) whether any other similar offer was made by University officials; (3) if so, whether any such offer was to remain open for a similar time; and (4) whether plaintiff rejected such offer or offers prior to 6:30 a.m. February 5, 1971.

The Merit Board then made the following additional findings of fact:

"A. [T]he statement by Mr. Bensyl did not constitute an offer, express or implied, to remain open for any period of time in the future and that said statement by Mr. Bensyl, in fact, was not an offer to change or alter the past terms and conditions of employment and the employment agreements that existed prior to Feb. 4, 1971 and was, in fact, a re-statement of the alternatives available to all employees similarly situated; and that no offer was made by any University of Illinois official that expressly or impliedly offered Donald W. Colaw the alternative of not reporting to work at his duty station on February 4, 1971.

B. That William R. Bensyl and the University of Illinois did make offers to Donald W. Colaw on February 4, 1971, to immediately accept or reject the conditions and terms of his employment as they existed prior to the disciplinary suspension of February 1, 1971 and Donald W. Colaw expressly and impliedly rejected any such offers on February 4, 1971.

C. At the close of the meeting on February 4, 1971, between Donald W. Colaw, Gene Crowell and William R. Bensyl when Donald W. Colaw left the office of William R. Bensyl, there existed no express of implied offer of employment from the employer to the employee that was conditioned upon the right of said employee to accept or reject at a later time or date; and, that any offer expressly or impliedly made by the University of Illinois officials at any meeting with Donald W. Colaw on February 4, 1971, was in fact rejected by Donald W. Colaw immediately on February 4, 1971."

Two issues are presented on appeal: (1) Could the trial court properly remand to the Merit Board for additional findings of fact without hearing additional evidence; (2) Were the findings of fact of the Hearing Board and the decision of the Merit Board, that the University had just cause for discharging plaintiff, supported by the record?

• 1 Considering first whether the remand procedure was proper, the University argues that plaintiff waived this issue by not objecting to the remand order in the trial court, and cannot now raise the question for the first time on appeal. In Boston & Main R.R. Co. v. United States, 358 U.S. 68, 3 L.Ed.2d 34, 79 S.Ct. 107 (1958), the court held that a remand order was interlocutory in nature, and that an appeal therefrom was premature. Since we may review all questions of law presented by the record (Gibbs v. Orlandi, 27 Ill.2d 368, 189 N.E.2d 233 (1963)), the question of the correctness of the remand order is properly before this court.

In Heap v. University Civil Service Merit Board, 83 Ill. App.2d 350, 227 N.E.2d 560 (3d Dist. 1967), the discharge provision of the university civil service system act (Ill. Rev Stat. 1965, ch. 24 1/2, par. 38b14) was construed to place decision-making power in the Merit Board which in turn may appoint a hearing board to assist by taking evidence and making ...


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