Petition For Review From Illinois Educational Labor Relations Board. Case No. 97-CA-0032-C
The opinion of the court was delivered by: Justice Gordon
Petitioner Bloom Township High School District 206 (the District) appeals from a decision of the Illinois Educational Labor Relations Board (the Board). In an unfair labor practice charge filed December 9, 1996, and amended on January 13, 1997, respondent Service Employees International Union, Local 1 (the Union), alleged the District violated the Illinois Educational Labor Relations Act (the Act) (115 ILCS 5/1 et seq. (West 1998)) when it discharged respondent Vince Bove, a District custodian, and suspended Morris Bates, also a custodian. Following a hearing, an administrative law judge found there was no violation of the Act. The Union filed exceptions to that decision as to Bove, and the Board subsequently reversed, concluding the District's discharge of Bove did violate the Act. The District argues on appeal that the Board had no jurisdiction to hear the Union's exceptions because they were not timely filed, and therefore the administrative law judge's decision must stand. In addition, the District contends it discharged Bove for a legitimate business reason and not for his protected union activity, and that the Board's reversal therefore is contrary to the law and against the manifest weight of the evidence. For the reasons set forth below, we affirm.
The basic facts involving this case are substantially undisputed.*fn1
A. The District Policy and Bove's Employment History
Under a District policy dating to January 1988, maintenance and custodial staff were not allowed to leave the building during their 15-minute coffee breaks. In addition, anyone leaving the building during the 30-minute lunch break was required to punch out and then punch back in when returning. If an employee's assigned duties required him to leave the building to empty trash, for example, or to go to another school building on the campus, punching out was not required.
As part of a settlement agreement in a previous unfair labor practice charge, the District and the Union agreed that the punching-in-and-punching-out rule would be strictly enforced beginning with the 1996-97 school year. According to John Dolak, then the District's assistant superintendent for business, the rule was posted at the beginning of that school year.
Bove worked as a custodian at Bloom High School in Chicago Heights, Illinois, from February 1985 until his termination on November 12, 1996. During that time, he received seven written reprimands and two suspensions for improper conduct. Two of the reprimands and both suspensions stemmed in part from violation of the above-mentioned rule.
On February 17, 1987, Bove was warned in writing about his failure to vacuum an entrance rug, and on May 8, 1987, he was given a written reprimand for inadequate cleaning of washrooms. The following October 1, he was reprimanded for being absent from work on September 28, 1987. He was not found during a one-hour search of the building, and thereafter was warned to report to the night foreman when leaving the building and to record his time in and out on his time card.
On February 29, 1988, Bove received a written reprimand and a one-day suspension without pay for being absent from work and failing to follow the requirement to punch in and out. The reprimand stemmed from an incident on February 27 when he could not be found in the school building from 2:55 a.m. to 3:40 a.m. On his return, he said he had been on a coffee break starting at 3:15 a.m. Bove filed a grievance over the one-day suspension, which he served on March 16, 1988, claiming lack of formal notice. The District superintendent denied the grievance.
A reprimand recommending Bove's dismissal was issued the following year. On April 28, 1989, Bove was found in the teachers' lounge watching television with his shoes off and his feet propped up. The May 3 reprimand cited that incident as well as Bove's ongoing failure to punch out and back in when leaving the building. As a result, the District 206 Board of Education (the School Board) suspended Bove for 27 days without pay, noting that this constituted a final warning and that any future misconduct of any type would result in a recommendation for his dismissal.
On January 15, 1993, Bove was reprimanded for failing adequately to clean locker rooms and the school's small gym. A year later, he was reprimanded for failure to use (and for improper use of) the building's security system, which records when an employee enters and leaves an area of the building. In addition, on an occasion in 1992 or 1993, Bove reportedly could not be found in the school building, but there is no indication of any resulting discipline.
The respondent Union is the exclusive representative of custodians employed by the School Board. Besides his 1988 grievance over his one-day suspension, Bove also filed a grievance (apparently in 1995) after being passed over for a plumber's position. In addition, Bove was a central figure in an unfair labor practice charge the Union filed against the School Board in 1995. That charge was later settled. At the hearing on the Union's subsequent charge arising from Bove's dismissal, Dolak, the District's assistant superintendent for business, testified he was aware that Bove was an active union member because Bove attended meetings between the Union and District management.
In June or July of 1996, Bove telephoned Union vice president Nicholas Belsanti and complained that vacant positions in the District were not being filled. He also voiced concern that the custodians' assigned work areas were becoming too large, and that the District was not providing updated job descriptions. In late July, Belsanti and Union representative Dan Baisden met with the Bloom High School custodians, who complained that the Union was not doing enough to make sure the District posted and filled vacant positions.
Bove was acting chief union steward in the fall of 1996. On August 26, 1996, he and other Union members met with District representatives to discuss the posting and filling of job vacancies. Also discussed at that meeting was a District proposal to combine a vacant electrician's position with a supervisory position. Under that proposal, instead of hiring a new electrician, the District would shift those duties to John Romano, the District's supervisor of buildings and grounds. The Union members rejected the proposal. Belsanti testified that Bove and another custodian, Morris Bates, were the most vocal in their opposition, and that Bove was more vocal than Bates. Dolak, the assistant superintendent for business, testified he did not recall either Bove or Bates saying anything about the proposed consolidation.
The two sides met again on September 18, 1996, to discuss the posting and filling of vacant positions. According to Dolak, there was general frustration among the Union members present because of the delay in posting and filling the positions. He added that Dominic Camilleri was the most vocal in voicing that frustration. Dolak also testified that Bates expressed concern that his work area was too big, and that Bove spoke in support of Bates on that issue. Bove testified that the proposed consolidation of the electrician and supervisory positions was again raised and that he and other Union members continued to reject it. Bates testified specifically that he and Bove and Jim Fisher, then the Union's recording secretary, all objected to that proposal at the September 18th meeting. However, Dolak testified that once the Union rejected the proposal at the August 26th meeting, "[t]hat was the end of it, as far as we were concerned." He testified that the matter did come up again in talks with Union representatives, but that was in February 1997. Another meeting was held a month later, on October 25, 1996, and job postings again were discussed. Dolak testified that Union member Sherwin Kennedy spoke at that meeting about job postings.
C. Alleged Anti-union Statements
On December 12, 1995, John Romano, the District's supervisor of buildings and grounds, did a building check at Bloom High School but could not find Bove. Custodian Jim Fisher assisted Romano in the search, and they found Bove mopping a stairwell in his area. Bove asked Romano why he was looking for him, and Fisher testified that Romano said, "I'm here to check on you." Bove responded angrily, and Romano suggested they move to a nearby laundry room. According to Fisher, while they were in the laundry room, Romano told Bove he had "orders from across the street" and that "this was a tit for tat because of the grievance" Bove had filed. Romano gave a different account, testifying that he told Bove he must punch out if he went out to lunch and that it was his "God-given right to file a grievance." The administrative law judge (ALJ) found Fisher's testimony more credible on that matter and did not credit Romano's denial.
Fisher also testified that in the spring of 1997, following a meeting on the termination of an employee, Fisher, Romano and foreman Dan Kieper were walking out of the meeting when Romano said the men who had been called "are all telling lies." According to Fisher, Romano also said, "the fucking union that backed these people, they ought to get rid of all of them." Romano also denied those statements, but the ALJ found Fisher's testimony more credible on that conversation as well.
In addition, Fisher testified that, during the summer of 1996, School Board member Robert Maros told him "there's a lot of trouble on the night shift" and that "the men are out of control and we're just going to have to bring them in some." Maros denied making those statements, but again the ALJ credited Fisher's testimony. However, she found that the comment did not necessarily show anti-union animus.
D. The October 16, 1996, Incident
In October 1996 Bove was working the night shift, which started at 3 p.m. and went to 11:30 p.m. On October 16, 1996, two School Board members, Robert Maros and "Mr. Deluca,"*fn2 made a surprise visit to Bloom High School. According to Maros, both he and Deluca had heard reports that the night custodians were not in their work areas during work hours, so they decided to go to the school to determine if the reports were true. Maros also testified they were not looking for any particular custodian that night, and that he did not know Bove prior to October 16. Maros testified that he and Deluca entered the building's maintenance area at 7 or 7:15 p.m. and began looking for Armando Maddamma, the night supervisor. According to Maros, they were unable to find Maddamma and were preparing to leave when Bove entered through the outside doors of the building sometime after 7:30 p.m. Maros said he saw Bove hang a coat in his locker. He also testified that he asked Bove if he punched out when he left and punched in when he returned, and Bove replied that sometimes he did and sometimes he didn't. Maros said the question was a general one and that he was not asking Bove if he punched in and out on that particular night. According to Maros, the conversation ended then, but Bove testified he asked the School Board members if they had seen ...