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10/19/89 Timothy J. Crowley, v. the Department of

October 19, 1989

TIMOTHY J. CROWLEY, PLAINTIFF-APPELLANT

v.

THE DEPARTMENT OF EMPLOYMENT SECURITY BOARD OF REVIEW ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

546 N.E.2d 1042, 190 Ill. App. 3d 900, 137 Ill. Dec. 929 1989.IL.1645

Appeal from the Circuit Court of Du Page County; the Hon. John W. Darrah, Judge, presiding.

APPELLATE Judges:

JUSTICE INGLIS delivered the opinion of the court. REINHARD and McLAREN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

Plaintiff, Timothy Crowley, appeals from a judgment of the circuit court affirming the decision of the Department of Employment Security Board of Review (Board) which had determined that plaintiff was disqualified from receiving unemployment benefits. Plaintiff raises one issue on appeal: whether the Board's finding that he was discharged from his employment for misconduct is against the manifest weight of the evidence.

Plaintiff was a bus driver employed by Transit Management of West Town Bus Company (Transit). On May 13, 1985, plaintiff was discharged from his employment because he refused to follow a direct order. At the hearing before the referee, the following facts were adduced. Plaintiff worked for Transit since September 1976. On many occasions he had discussed customer complaints with a supervisor on his own time and was not paid to do so. On March 1, 1985, a supervisor, Mr. Beasley, asked to speak with plaintiff about passenger complaints filed against him. Plaintiff and his union steward went to Beasley's office, but plaintiff refused to discuss the complaints unless he was paid. Beasley then suspended plaintiff for five days for refusing to discuss the complaints.

On March 13, 1985, Beasley again asked to speak to plaintiff about passenger complaints filed against him. Plaintiff and the union steward went to Beasley's office, but plaintiff persisted in his refusal to discuss the complaints on his own time unless he was paid. As a consequence of plaintiff's refusal to discuss the complaints, Beasley suspended plaintiff for 10 days. The steward had advised plaintiff to attend both meetings and that if plaintiff was not paid, they would file a grievance with the union.

On May 8, 1985, another supervisor, Mr. Robare, told plaintiff that he wanted to discuss passenger complaints filed against plaintiff. Plaintiff told Robare, "If you wish to discuss passenger complaints with me, either I want to be paid, or I'll see you when I was [ sic ] on the clock." Shortly after this exchange, Beasley attempted to talk to plaintiff about his refusal to discuss passenger complaints with Robare. Plaintiff advised Beasley that he was not "on the clock" and that if Beasley wished to discuss anything, Beasley should see plaintiff when he was "on the clock" or should pay him. After his shift started, plaintiff went to Robare's office to discuss the complaints, but Robare told him, "I don't want to discuss the passenger complaints with you anymore. It is out of my hands." Plaintiff did not try to discuss the complaints with Beasley at that time because plaintiff had an obligation to drive a bus and stated that he "cannot be in two places at one time."

On May 10, plaintiff received a letter from Transit by which plaintiff was ordered to meet with Beasley on May 13 to discuss the complaints. The letter stated that "failure to report and/or failure to respond to the complaints could result in severe discipline including possible suspension and/or discharge."

On May 13, plaintiff, accompanied by the union steward and the first vice-president of the union, went to Beasley's office. The first vice-president advised plaintiff to answer the questions. Upon learning that he would not be paid for the meeting, plaintiff walked out of the office. The union steward urged plaintiff to return to the meeting, but he refused. Transit then fired plaintiff.

On May 14, plaintiff filed a claim for unemployment compensation with the Department of Employment Security. The claims adjudicator denied plaintiff's claim, and plaintiff appealed. On appeal before the referee, plaintiff testified that the union did nothing regarding most of the grievances he filed. Plaintiff stated that he had also contacted the Federal Department of Labor Wage and Hour Division (Department of Labor), in an effort to get Transit to observe regulations with respect to the payment of wages; however, plaintiff admitted that the Department of Labor informed him that Transit had not violated any laws.

The division manager of Transit testified that plaintiff was terminated for failure to answer questions about passenger complaints. According to the division manager, the company had a long-standing policy of not paying drivers for such meetings because, at a maximum, the meetings lasted no longer than two or three minutes. When asked why the meetings could not take place during working hours, the division manager responded that "[w]e have to see [plaintiff] when he gets off work because when he's working, he's out driving a bus." The division manager admitted, however, that in April 1986, Transit started paying its employees for the meetings pursuant to Garcia v. San Antonio Metropolitan Transit Authority (1985), 469 U.S. 528, 83 L. Ed. 2d 1016, 105 S. Ct. 1005.

The referee affirmed the determination of the claims adjudicator and held that plaintiff was disqualified for benefits under section 602of the Illinois Unemployment Insurance Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 432). The Act disqualifies an individual from benefits if he has been discharged for misconduct ...


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