Released for Publication June 23, 1995.
The Honorable Justice Gordon delivered the opinion of the court: McNULTY, J., and O'brien, J., concurring.
The opinion of the court was delivered by: Gordon
JUSTICE GORDON delivered the opinion of the court:
On February 4, 1992, the petitioner, Norman Jones, filed an unfair labor practice charge with the Illinois Educational Labor Relations Board (hereinafter "Board"), alleging that respondent Illinois Federation of Teachers, AFT, AFL-CIO (hereinafter "Federation"), breached its duty of fair representation under § 14(b)(1) of the Illinois Educational Labor Relations Act. (Ill. Rev. Stat. 1991, ch. 48, par. 1714(b)(1) (hereinafter "IELRA").) He maintains that the Federation breached that duty by declining to provide him with legal representation in a federal civil rights lawsuit against his employer, Township High School District No. 211 ("District 211"), in which he claimed that District 211 both retaliated against him for exercising his First Amendment right of free speech and discriminated against him based on his age.
In a recommended decision, the Board's Executive Director found that the Federation did not breach the duty of fair representation. (See AFT, IFT (Jones), 8 Pub. Employee Rep. (Ill.) par. 1072, at IX-267 (Illinois Educational Labor Relations Board Executive Director, July 1, 1992).) The petitioner filed exceptions to the Executive Director's recommended decision which the full Board struck for failure to file a certificate of service. (See AFT, IFT (Jones), 8 Pub. Employee Rep. (Ill.) par. 1101, at IX-360 (Illinois Educational Labor Relations Board, Sep. 11, 1992).) The petitioner filed a timely request for review of the Board's order.
The petitioner was employed as a Palatine High School guidance counselor from 1966 until 1984. In 1984, he was transferred to a position as a physical education teacher at another high school within District 211. The petitioner maintains that the transfer was the culmination of harassment which resulted from criticisms he made of District 211 and its policies.
In May 1984, after seeking intervention by Local 1211 of the District 211 Teachers Union ("Local 1211") and of its parent union, the Federation, the petitioner, at their direction, wrote to one of their attorneys, Barbara Hillman, setting forth his grievance. In his letter he requested that Hillman "do all you can do to file charges centering around this continued and calculated job harassment or whatever legal avenue you think is best" and further requested that she "try to obtain an injunction for me to prevent the transfer." He also asked whether "we can obtain a money settlement?"
In a letter dated July 7, 1984, the president of Local 1211 informed the petitioner that Hillman reviewed his complaint and concluded that it had been "pursued to the lengths mandated by the Governing Board and that the case should now be considered closed." The record does not reveal whether the petitioner specifically requested that Local 1211 initiate a grievance procedure on his behalf under the collective bargaining agreement.
In June of 1985, the petitioner employed private counsel to file a lawsuit against District 211 and three District 211 officials in the United States District Court for the Northern District of Illinois. His federal complaint alleged that his 1984 transfer and reassignment as a physical education teacher were in retaliation for his criticism of District 211 and therefore violated his First Amendment right of free speech and that those same actions by District 211 also violated the Age Discrimination in Employment Act of 1967.
After filing his federal lawsuit, the petitioner again approached Local 1211 and asked for its assistance in prosecuting that action. Local 1211 thereupon requested that another lawyer from the same law firm as Hillman, Melissa Auerbach, review his grievance. In an August 12, 1985 opinion letter addressed to Local 1211 Auerbach stated that the petitioner "would be unlikely to prevail in an age discrimination lawsuit against  District ." She did not address any claim based on a violation of his First Amendment rights. On September 3, 1985, the president of Local 1211 wrote to the petitioner "that any further Union action concerning your case would not end with positive results" and therefore rejected his request for assistance.
On February 2, 1990, the district court denied a motion for summary judgment which District 211 filed with respect to the petitioner's First Amendment claim and deferred ruling on that motion with respect to the age discrimination claim pending additional briefing. Subsequently, at a date not disclosed in the record, the petitioner's action against District 211 was dismissed with prejudice for want of prosecution. (The petitioner's counsel represented at oral argument that the federal action was dismissed because no one appeared on behalf of the petitioner at three successive status calls.)
In a letter to the president of Local 1211 dated March 15, 1990, the petitioner again requested funding for his past and future legal expenses in the civil rights action against District 211. Correspondence continued between the petitioner and Local 1211 throughout 1990 until it arranged for him to again meet with one of its attorneys, Mildred Haggerty, to discuss the merits of his federal suit. That meeting occurred on December 4, 1990.
In a February 3, 1991 opinion letter addressed to Local 1211, Haggerty stated that "I do not believe that the evidence presented to us by [the petitioner] is strong enough for the Union to reverse its earlier decision not to fund the case, particularly in light of its [dismissal with prejudice]. Should it decide to fund the case, the Union would deplete its somewhat limited resources in a case which is, at best, extremely difficult." Local 1211 thereupon informed the petitioner that it would not change its earlier decision with respect to funding his litigation.
Thereafter, the petitioner began an exchange of correspondence between himself and the Federation, bypassing Local 1211. On March 11, 1991, the petitioner wrote the Federation's president, seeking funding for his past legal fees and his prospective legal fees in the event of an appeal from the dismissal of his action against District 211. In a letter dated March 25, 1991, the assistant to the Federation's president replied that he would review the matter and encouraged the petitioner to forward additional information. The petitioner thereupon submitted a twenty-four page response in support of his request.
In a letter dated June 10, 1991, the assistant to the Federation's president wrote to the petitioner, informing him that he and an attorney retained to advise the Federation reviewed the materials he sent but were of the opinion that Local 1211 properly denied funding. The letter stated that "we find no evidence in your packet that would sustain a ruling in your behalf. If such is present, please cull that from this packet for our attention or submit it for our review. Lacking such evidence, the legal opinions of Ms. Hillman and Ms. Haggerty would be affirmed as legally correct."
The petitioner replied in a letter dated July 3, 1991 that he found the Federation's letter of June 10th "to be evasive and a continuation of the usual lackadaisical union legal tactics designed to escape from using funds to back a deserving teacher." Under the threat of "filing charges," the petitioner requested that the Federation either pay his past and future legal fees or pay his past legal fees and ten thousand dollars.
In a letter to the petitioner dated August 19, 1991, the Federation restated its position that Local 1211 properly denied funding for his federal court litigation and declined further review of his allegations. This August 19, 1991 letter was the final correspondence between the petitioner and the Federation until the petitioner filed his unfair labor practice charge.
On February 4, 1992, the petitioner, proceeding pro se, filed an unfair labor practice charge with the Board, alleging that the Federation breached its statutory duty of fair representation under § 14(b)(1) of the IELRA by denying him funding for legal representation in his civil rights lawsuit against District 211. The Federation filed a reply in which it maintained that it owed the petitioner no duty of fair representation because it was not his exclusive bargaining representative, that the petitioner's civil rights claim was not within the scope of the grievance arbitration procedure and therefore the failure to provide him with representation would not have breached the duty of fair representation, and that the petitioner failed to allege that the Federation's actions were motivated by his union activity or lack thereof.
On July 1, 1992, the Executive Director of the Board recommended that the petitioner's charge be dismissed because, even assuming that the Federation was his exclusive bargaining representative, the evidence did not establish a prima facie case of intentional misconduct as required by § 14(b)(1). The Executive Director also found that the petitioner had "failed to establish that he was in any way entitled to  legal representation under the collective bargaining agreement."
The petitioner, still proceeding pro se, filed timely exceptions to the Executive Director's recommended decision in an attempt to persuade the full Board to reject it. He did not attach a certificate of service to his exceptions and the record indicates that the Federation filed no response to them. The Federation denies that it was served with, or otherwise had notice of, the petitioner's exceptions.
On September 11, 1992, the full Board struck the petitioner's exceptions and affirmed Executive Director's recommended decision "because [the petitioner] failed to serve [them] and attach a certificate of service." The Board also held that even if it were to consider the merits of the exceptions it would not have found that the Federation breached the duty of fair representation under the IELRA. In noting that the petitioner had not adduced evidence sufficient to prove a prima facie case of intentional misconduct, the Board stated that "[a] union's actions constitute 'intentional' misconduct when such actions are conducted in a 'deliberate ...