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08/18/88 Hardin County Education v. Educational Labor

August 18, 1988

HARDIN COUNTY EDUCATION ASSOCIATION, IEA-NEA, PETITIONER

v.

ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD ET AL., RESPONDENTS. -- THE BOARD OF EDUCATION OF HARDIN COUNTY COMMUNITY UNIT SCHOOL DISTRICT NO. 1, PETITIONER,

v.

ILLINOIS EDUCATIONAL LABOR



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

RELATIONS BOARD et al., Respondents

528 N.E.2d 737, 174 Ill. App. 3d 168, 124 Ill. Dec. 49 1988.IL.1267

Petition for review of order of Illinois Educational Labor Relations Board.

APPELLATE Judges:

JUSTICE SPITZ delivered the opinion of the court. GREEN, P.J., and LUND, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ

The Hardin County Education Association, IEA-NEA (Association or union), seeks review of the June 17, 1987, opinion and order of the Illinois Educational Labor Relations Board (IELRB or Labor Board), finding that the Board of Education of Hardin County Community Unit School District No. 1 (District or Board) did not commit an unfair labor practice in violation of sections 14(a)(1) and 14(a)(3) of the Illinois Educational Labor Relations Act (Act)(Ill. Rev. Stat. 1985, ch. 48, par. 1714(a)(3)), by dismissing art teacher Eileen Sandra Williams. The District appeals the IELRB's ruling, also issued in the June 17, 1987, opinion and order, that the District committed unfair labor practices in violation of section 14(a)(1) of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 1714(a)(1)) by (1) reprimanding teacher Carol Walker, and (2) questioning counselor Linda St. Onge about her union affiliation and that of another teacher. For the reasons that follow, we affirm.

The Association filed charges with the IELRB August 27, 1985. Following an investigation, the IELRB Executive Director issued a complaint December 19, 1985, alleging the District, in dismissing Williams for engaging in protected and concerted activity, violated sections 14(a)(1) and 14(a)(3) of the Act. The complaint also alleged a formal reprimand given to Walker and the questioning of St. Onge violated section 14(a)(1) of the Act. Following hearings March 17, 18, and 19, 1986, the IELRB hearing officer issued his recommended decision and order August

The hearing officer found the Association had established a prima facie case of discriminatory discharge, but ruled the District met its burden of showing the discharge would have occurred absent the protected activity. The hearing officer also found the District violated section 14(a)(1) by reprimanding Walker and questioning St. Onge. The IELRB adopted the hearing officer's findings of fact in an opinion and order issued June 17, 1987. (Hardin County Education Association, IEA-NEA, 3 Pub. Employee Rep. (Ill.) par. 1076, case No. 85 -- CA -- 0032 -- S (Illinois Educational Labor Relations Board, June 17, 1987).) Although the Labor Board affirmed the result, it differed with the hearing officer over whether the Association had made out a prima facie case of discriminatory discharge. It ruled no prima facie case had been established, and further found that even if the Association had made out a prima facie case, the District met its burden of showing the discharge would have occurred absent the protected activity. The Labor Board also affirmed the hearing officer's ruling that Walker's reprimand and St. Onge's questioning violated the Act. The Association and the District filed petitions for review July 22, 1987, and July 24, 1987. The cases were consolidated for review.

Given the extensive factual findings in the case, we will refer only to those facts necessary to our resolution of the issues presented. The underlying facts are set forth in the hearing officer's recommended decision and order, Hardin County Education Association, IEA-NEA, 2 Pub. Employee Rep. (Ill.) par. 1110, case No. 85 -- CA -- 0032 -- S (Illinois Educational Labor Relations Board, Aug. 29, 1986) (hearing officer), and were adopted by the IELRB. Hardin County Education Association, IEA-NEA, 3 Pub. Employee Rep. (Ill.) par. 1076, case No. 85 -- CA -- 0032 -- S (Illinois Educational Labor Relations Board, June 17, 1987).

A. WILLIAMS' DISMISSAL

The Association urges this court on appeal to adopt an "in part" test in section 14(a)(3) cases rather than the "but for" test applied by the hearing officer and the Labor Board. The Association also argues the IELRB's decision upholding Williams' dismissal is against the manifest

weight of the evidence. The District and the IELRB contend the Labor Board's decision is supported by the evidence.

As a general rule, courts will accord deference to the interpretation placed on a statute by the agency charged with its administration and enforcement. (Blum v. Bacon (1982), 457 U.S. 132, 141, 72 L. Ed. 2d 728, 736, 102 S. Ct. 2355, 2361; Airey v. Department of Revenue (1987), 116 Ill. 2d 528, 536, 508 N.E.2d 1058, 1062.) An administrative agency's interpretation is not binding, however, and it will be rejected when it is erroneous. Securities Industry Association v. Board of Governors (1984), 468 U.S. 137, 142-43, 82 L. Ed. 2d 107, 113, 104 S. Ct. 2979, 2982; Northern Trust Co. v. Bernardi (1987), 115 Ill. 2d 354, 365, 504 N.E.2d 89, 94.

The decisions of the National Labor Relations Board and the Federal courts interpreting similar provisions under the National Labor Relations Act (29 U.S.C. § 151 et seq. (1982)) are persuasive authority. The Labor Board is not, however, bound to interpret the Act as the NLRB or the Federal courts have interpreted the NLRA. (East Richland Education Association, IEA-NEA v. Illinois Educational Labor Relations Board (1988), 173 Ill. App. 3d 878, 902.) Nevertheless, we find the interpretation and approach stated by the Board in its decision here is essentially in agreement with NLRB precedent.

We first address the test applied by the hearing officer and the IELRB. In concluding the District did not violate section 14(a)(3) by discharging Williams, the hearing officer applied a "but for" test adopted by the IELRB in Balyki Education Association, IEA/NEA, 2 Pub. Employee Rep. (Ill.) par. 1047, case No. 84 -- CA -- 0018 (Illinois Educational Labor Relations Board, Mar. 11, 1986). In Balyki, the IELRB held that once the complaining party established a prima facie case of discriminatory discharge, the burden of proof shifted to the employer to demonstrate by a preponderance of the evidence that the discharge occurred for legitimate reasons. This allocation of the burden of proof, as applied to cases under the NLRA (29 U.S.C. § 151 et seq. (1982)), originated in Wright Line, a Division of Wright Line, Inc. (1980), 251 N.L.R.B. 1083, 105 L.R.R.M. 1169, enforced (1st Cir. 1981), 662 F.2d 899, 108 L.R.R.M. 2513, cert. denied (1982), 455 U.S. 989, 71 L. Ed. 2d 848, 102 S. Ct. 1612, and approved in NLRB v. Transportation Management Corp. (1983), 462 U.S. 393, 400-01, 76 L. Ed. 2d 667, 674-75, 103 S. Ct. 2469, 2473-74.

In Wright Line, the NLRB expressed dissatisfaction with tests which had evolved to analyze the relationship between the employee's protected conduct and the employer's action. In Wright Line, the NLRB expressly rejected the "in part" test, under which a discharge was improper if it was motivated, even in part, by opposition to the exercise of rights protected under the NLRA, even if a legitimate business reason was also relied upon. This test had come under attack for its inability, in dual motivation cases, to resolve the conflict between the employer's legitimate right to enforce its own rules and the employee's right to participate in protected activities without fear of employer retaliation. Under the "in part" test, the employer's legitimate business reason for discharge would be irrelevant, at least to the determination of whether an unfair labor practice has been committed, once the employee established employer hostility toward the union. See Wright Line, 251 N.L.R.B. at 1084, 105 L.R.R.M. at 1170-71.

The NLRB found the interests of employer and employee best served by a test akin to the two-part test formulated by the Supreme Court in Mt. Healthy City School District Board of Education v. Doyle (1977), 429 U.S. 274, 50 L. Ed. 2d 471, 97 S. Ct. 568. That test, applied in the context of a first amendment challenge, required the employee to establish the protected conduct was a substantial or motivating factor in the discharge. Once this was established, the burden shifted to the employer to demonstrate it would have reached the same decision absent the protected conduct. The NLRB reasoned the test protected both parties. The employee only had to show that protected activities played a part in the decision to discharge. The employer was allowed to show it would have dismissed the employee for reasons unrelated to protected activity. Wright Line, 251 N.L.R.B. at 1089, 105 L.R.R.M. at 1174-75.

In enforcing the NLRB's order, the First Circuit Court of Appeals agreed with the NLRB's allocation of the burden of proof. It recognized the difficulty of pinpointing the causal link between the protected activity and the employee's dismissal. The court reasoned that the most accurate method of deciding the issue was to determine whether the discharge would have occurred "but for" the protected activity. Wright Line, 662 F.2d at 903, 108 L.R.R.M. at 2516.

The court noted the "in part" test ran the risk of immunizing employees engaging in protected activity from otherwise unforgivable conduct once antiunion animus had been established. The "in part" test would result in a violation if the discharge was even partially motivated by opposition to union membership. In effect, it would put the employee in a better position than he would have held had he not engaged in protected activity. The NLRB found the better approach was to look at the actual cause of the dismissal, and if the discharge would have occurred absent the protected activity, no unfair labor practice was committed. (Wright Line, 662 F.2d at 902, 108 L.R.R.M. at 2516.) While the complainant in such cases retains the burden of proving the elements of an unfair labor practice, the employer carries the burden of proof by a preponderance of the evidence to show the discharge would have occurred absent the protected activity. See NLRB v. Transportation Management Corp. (1983), 462 U.S. 393, 400-01, 76 L. Ed. 2d 667, 674-75, 103 S. Ct. 2469, 2473-74 (approving the Wright Line test).

The Association cites a number of pre- Wright Line cases in support of the "in part" test. These cases are inapposite. However, the Association correctly states the Supreme Court of Wisconsin has adopted the "in part" test. In Muskego-Norway Consolidated Schools Joint School District No. 9 v. Wisconsin Employment Relations Board (1967), 35 Wis. 2d 540, 151 N.W.2d 617, 63 L.R.R.M. 2376, the employment relations board found the primary motivation for the school district's refusal to renew a teacher's contract was his union activity; the supreme court, reversing the trial court, affirmed the agency's finding of unfair labor practice in view of statutory standard of review and the deference to be accorded agency findings. The Muskego court based its reasoning on a pre- Wright Line case, NLRB v. Great Eastern Color Lithographic Corp. (2d Cir. 1962), 309 F.2d 352, 355, 51 L.R.R.M. 2410, 2412, cert. denied (1963), 373 U.S. 950, 10 L. Ed. 2d 705, 83 S. Ct. 1680. Muskego was most recently affirmed in Wisconsin Department of Employment Relations v. Wisconsin Employment Relations Comm'n (1985), 122 Wis. 2d 132, 361 N.W.2d 660 (District 1199W/United Professionals for Quality Health Care, complainant). In the latter case, the Wisconsin Supreme Court expressly rejected Wright Line in favor of the "in part" test. It looked to Wisconsin's long history of "fostering a favorable climate for labor unions," and the advantage the Wright Line test gives to the employer, in determining that the "in part" test better effectuated the purposes of Wisconsin's State Employment Labor Relations Act. (Wisconsin Department of Employment Relations, 122 Wis. 2d at 142, 361 N.W.2d at 665.) The court found that to allow employers to exhibit union hostility and dismiss employees for union activity as long as the company could furnish a legitimate reason for discharge would "disrupt the relative balance between management and labor that [Wisconsin] strives for." (Wisconsin Department of Employment Relations, 122 Wis. 2d at 142, 361 N.W.2d at 665.) However, despite its reliance on the "in part" test, the court ruled evidence of the employer's legitimate reasons for discharge would not be excluded, but considered with all of the employee's evidence in determining the employer's motive. (122 Wis. 2d at 142-43, 361 N.W.2d at 665.) Our supreme court has not yet considered the Wright Line test.

In affirming the IELRB's adoption of the Wright Line test in discriminatory discharge cases under section 14(a)(3) of the Act, we recognize the test as an appropriate method of balancing the competing interests of the employer and employee in such cases. The Second District in Rockford Township Highway Department v. Illinois State Labor Relations Board (1987), 153 Ill. App. 3d 863, 506 N.E.2d 390, citing Transportation Management, which approved the Wright Line test, affirmed adoption of Wright Line's allocation of the burden of proof in a dual motive case involving alleged unlawful discharge under section 10(a)(2) of the Illinois Public Labor Relations Act (Ill. Rev. Stat. 1985, ch. 48, par. 1610(a)(2)).

The supreme courts of Maine and New Jersey have embraced this test. (Maine State Employees Association v. State Development Office (Me. 1985), 499 A.2d 165 (affirming application of Wright Line in cases under Maine's State Employees Labor Relations Act); In re Township of Bridgewater (1984), 95 N.J. 235, 471 A.2d 1 (affirming application of Wright Line in cases brought pursuant to New Jersey's Employer-Employee Relations Act).) The California Supreme Court has ruled Wright Line is to be applied in dual motive cases brought under that State's Agricultural Labor Relations Act. (Martori Brothers Distributors v. Agricultural Labor Relations Board (1981), 29 Cal. 3d 721, 631 P.2d 60, 175 Cal. Rptr. 626 (ALRB statutorily required to apply applicable NLRB precedent (Cal. Labor Code § 1148 (Deering 1976))).) The Montana Supreme Court adopted the "but for" test in a pre- Wright Line case under that State's public employee collective bargaining act. Board of Trustees of Billings School District No. 2 v. State of Montana ex rel. Board of Personnel Appeals (1979), 185 Mont. 89, 604 P.2d 770, 103 L.R.R.M. 3090.

The California Court of Appeals has applied the Wright Line test in cases involving public and educational employees. (Short v. Nevada Joint Union High School District (1985), 163 Cal. App. 3d 1087, 210 Cal. Rptr. 297 (breach of contract action resulting from dismissal of security guard); McPherson v. Public Employment Relations Board (1987), 189 Cal. App. 3d 293, 234 Cal. Rptr. 428 (affirming application of Wright Line in cases under Educational Employment Relations Act).) In addition, State appellate courts in Florida, Iowa, Michigan, and Washington have utilized this test in cases involving public and educational employees. Pasco County School Board v. Florida Public Employees Relations Comm'n (Fla. App. 1977), 353 So. 2d 108, 96 L.R.R.M. 3347 (adopted Mt. Healthy "but for" test in pre- Wright Line discharge case under Florida Public Employees Relations Act); Columbia County Board v. Public Employees Relations Comm'n (Fla. App. 1977), 353 So. 2d 127, 96 L.R.R.M. 3345 (applying "but for" test in pre- Wright Line discharge case under Florida Public Employees Relations Act); Valley Educational Support Personnel Association v. Public Employment Relations Board (Iowa App. 1988), 420 N.W.2d 495; Ross v. Public Employment Relations Board (Iowa App. 1987), 417 N.W.2d 475; Cerro Gordo County v. Public Employment Relations Board (Iowa App. 1986), 395 N.W.2d 672; Napoleon Education Association v. Napoleon Community Schools (1983), 125 Mich. App. 398, 336 N.W.2d 481; Michigan Educational Support Personnel Association v. Evart Public Schools (1983), 125 Mich. App. 71, 336 N.W.2d 235; Highline Community College v. Higher Education Personnel Board (1986), 45 Wash. App. 803, 727 P.2d 990; Clallam County v. Washington State Public Employment Relations Comm'n (1986), 43 Wash. App. 589, 719 P.2d 140; Washington Public Employees Association v. Community College District 9 (1982), 31 Wash. App. 203, 642 P.2d 1248, 114 L.R.R.M. 2762.

We therefore hold that the Wright Line test is to be applied in discriminatory discharge cases brought under section 14(a)(3) of the Act.

We now turn to the issue of Williams' dismissal. The Association challenges as against the manifest weight of the evidence the Labor Board's ruling that Williams' discharge did not violate the Act. The District and the IELRB maintain the opinion was correctly based on the evidence and should not be disturbed.

Upon review, findings and Conclusions of the administrative agency on questions of fact are considered prima facie true and correct. (Ill. Rev. Stat. 1985, ch. 110, par. 3-110; Murdy v. Edgar (1984), 103 Ill. 2d 384, 391, 469 N.E.2d 1085, 1088; Board of Education of Plainfield Community Consolidated School District No. 202 v. Illinois Educational Labor Relations Board (1986), 143 Ill. App. 3d 898, 906, 493 N.E.2d 1130, 1135-36.) Courts may not interfere with the discretionary authority vested in an administrative agency unless that authority is exercised in an arbitrary or ...


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