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12/07/88 the County of Menard, v. State Labor

December 7, 1988

THE COUNTY OF MENARD, PETITIONER

v.

ILLINOIS STATE LABOR RELATIONS BOARD ET AL., RESPONDENTS



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

531 N.E.2d 1080, 177 Ill. App. 3d 139, 126 Ill. Dec. 453

Petition for review of order of Illinois State Labor Relations Board. 1988.IL.1772

APPELLATE Judges:

JUSTICE KNECHT delivered the opinion of the court. LUND and GREEN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT

Respondent County of Menard (County) challenges the September 23, 1987, decision of the Illinois State Labor Relations Board (ISLRB or Labor Board) finding the County violated section 10(a)(2) of the Illinois Public Labor Relations Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 1610(a)(2)), by discharging Donald Witherell, a maintenance employee at the County's Sunny Acres Nursing Home. The County contends: (1) Witherell was a statutory supervisor excluded from the Act's coverage; and (2) it discharged Witherell for reasons unrelated to protected union activity.

The events culminating in the unfair labor practice charge occur against a background of union organizing activity. On June 6, 1986, an election was conducted at Sunny Acres Nursing Home to determine if the employees there desired to be represented by the American Federation of State, County, and Municipal Employees (AFSCME or union). The County subsequently challenged certain ballots, including Witherell's. In a separate proceeding before the Labor Board, the County claimed Witherell was a supervisor under the Act and his ballot should not be counted.

The Labor Board rejected the County's attempt to relitigate Witherell's supervisory status since the County had stipulated to Witherell's inclusion in the bargaining unit and failed to secure a pre-election hearing on the matter. The ISLRB dismissed the County's objections. See County of Menard, 2 Pub. Employee Rep. (Ill.) par. 2037, case No. S -- RC -- 214 (Illinois State Labor Relations Board, July 30, 1986).

In a related challenge, the County charged AFSCME with coercion in violation of section 10(b)(1) of the Act. (Ill. Rev. Stat. 1985, ch. 48, par. 1610(b)(1).) The Labor Board upheld its executive director's dismissal of the complaint for lack of evidence. See County of Menard, 2 Pub. Employee Rep. (Ill.) par. 2049, case No. S-CB-182 (Illinois State Labor Relations Board, Sept. 24, 1986).

On August 21, 1986, Witherell was dismissed by the Menard County Board (County Board), which has the exclusive authority to hire and fire employees. On September 5, 1986, the union filed charges with the ISLRB. The Labor Board's executive director issued a complaint December 24, 1986, alleging violations of sections 10(a)(1) and 10(a)(2) of the Act. Following hearings, the hearing officer issued a recommended decision March 24, 1987. The hearing officer concluded that since the County Board possessed no antiunion motivation, Witherell was not unlawfully fired. The ISLRB adopted the hearing officer's factual findings but reversed his Conclusions of law. The cause was remanded to the hearing officer to determine whether the nursing home's administrator, Warren Dick, possessed illegal motivation in bringing the charges against Witherell which resulted in the termination of Witherell's employment by the County Board. See County of Menard, 3 Pub. Employee Rep. (Ill.) par. 2043, case No. S -- CA -- 87 -- 46 (Illinois State Labor Relations Board, June 1, 1987).

The hearing officer issued his supplemental recommended decision and order July 8, 1987. The hearing officer found Dick was motivated by antiunion hostility and the discharge was based on Witherell's protected activity, resulting in violations of the Act. The Labor Board adopted the hearing officer's supplemental decision September 23, 1987; however, the Labor Board found that several findings of antiunion hostility made by the hearing officer in the supplemental decision were not supported by the record. The Labor Board concluded that, even so, enough evidence of antiunion motivation existed in the record to support the hearing officer's Conclusion. (See County of Menard, 3 Pub. Employee Rep. (Ill.) par. 2058, case No. S -- CA -- 87 -- 46 (Illinois State Labor Relations Board, Sept. 23, 1987).) The County's petition for review followed.

On appeal, the County initially argues it should be allowed to relitigate the issue of Witherell's supervisory status. The ISLRB and the union maintain the previous stipulation continues to be binding in the absence of changed circumstances.

The record shows the hearing officer rejected the County's attempt to relitigate this issue. It did, however, allow the County's counsel to make an offer of proof:

": Okay. Mr. Hearing Officer, if allowed to present the witnesses and the testimony that I intend to present, I believe that I would show that under the criteria that this Board has adopted, under the standards of the National Labor Relations Board which this Board looks to for guidance, this particular employee is a statutory supervisor and he would not be part of the bargaining unit. Thank you."

In making an offer of proof, counsel must explicitly state what excluded testimony would reveal and not merely allude as to what might be divulged by such testimony. (People v. Brown (1982), 104 Ill. App. 3d 1110, 433 N.E.2d 1081.) Counsel here failed to state the facts relied upon or by whom he intended to make such proof. The form here was inadequate. (See People v. Clark (1956), 9 Ill. 2d 400, 137 N.E.2d 820.) Consequently, we affirm the ISLRB'S ruling denying the attempt to relitigate this issue. County of Menard, 3 Pub. Employee Rep. (Ill.) par. 2058, at VIII -- 373 n.2, case No. S -- CA -- 87 -- 46 (Illinois State Labor Relations Board, Sept. 23, 1987).

Turning to the second issue, the County contends Witherell's discharge did not violate the Act. AFSCME and the ISLRB maintain the Labor Board's decision was correct. The parties exhibit some confusion over the proper standard of review to be applied. The County argues the ISLRB's findings are not supported by substantial evidence taken as a whole, citing Universal Camera Corp. v. NLRB (1951), 340 U.S. 474, 95 L. Ed. 456, 71 S. Ct. 456. AFSCME contends this court should affirm if the Labor Board's findings are supported by substantial evidence. The ISLRB maintains its decision was not against the manifest weight of the evidence.

Judicial review of a final order of the ISLRB is taken directly to the appellate court. (Ill. Rev. Stat. 1985, ch. 48, par. 1611(e).) Section 11(e) of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 1611(e)), governing appeals from Labor Board decisions, by its terms incorporates the provisions of the Administrative Review Law (Ill. Rev. Stat. 1985, ch. 110, par. 3-101 et seq.). 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 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 capricious manner, or the administrative decision is contrary to the manifest weight of the ...


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