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The City of Bloomington v. the Illinois Labor Relations Board

June 13, 2011

THE CITY OF BLOOMINGTON,
PETITIONER-APPELLANT,
v.
THE ILLINOIS LABOR RELATIONS BOARD, STATE PANEL; AND THE POLICEMEN'S BENEVOLENT AND PROTECTIVE ASSOCIATION LABOR COMMITTEE, RESPONDENTS-APPELLEES.



The opinion of the court was delivered by: Justice McCULLOUGH

Direct Administrative Review of Illinois Labor Relations Board, State Panel

No. SCA04120

JUSTICE McCULLOUGH delivered the judgment of the court, with opinion. Presiding Justice Knecht and Justice Appleton concurred in the judgment and opinion.

OPINION

¶ 1 The City of Bloomington (City) seeks direct administrative review of a decision of the Illinois Labor Relations Board, State Panel (Board), that granted a motion by The Policemen's Benevolent and Protective Association Labor Committee (Union) for attorney fees and costs against the City. The City argues (1) the Union failed to serve its motion on the City and (2) the Board's award had no basis. Policemen's Benevolent & Protective Ass'n Labor Committee, 26 PERI ¶ 99, No. S--CA--04--120 (ILRB, State Panel, Aug. 27, 2010) (hereinafter 26 PERI ¶ 99). We affirm.

¶ 2 In 2004, the Union filed an unfair-labor-practice charge with the Board, alleging the City violated the Illinois Public Labor Relations Act (Act) (5 ILCS 315/10(a)(1), (a)(2), (a)(4) (West 2002)) by (1) denying Sergeant Paul Williams a promotion to the rank of lieutenant because of his union activity and (2) unilaterally changing promotion procedures. On November 30, 2009, following hearings in the matter, an administrative law judge (ALJ) issued a recommended decision and order. Policemen's Benevolent & Protective Ass'n Labor Committee, 26 PERI ¶ 99, No. S--CA--04--120 (Administrative Law Judge's Recommended Decision and Order, Nov. 30, 2009), at 404 (hereinafter ALJ decision, 26 PERI ¶ 99). The ALJ agreed, in part, with the Union's position, finding the City's denial of a promotion to Williams was motivated by union animus.

¶ 3 According to the ALJ's decision, the City's police department had a procedure for promoting to the rank of lieutenant that had three elements: a written examination, an assessment, and the awarding of merit and efficiency points to each candidate by assistant chiefs and current lieutenants. The three elements were evaluated and compiled into a final score that was submitted to the chief of police, Roger Aikin. Aikin then had the discretion to appoint a lieutenant from the three top-scoring candidates. The ALJ found Aikin repeatedly stated to other police department officers that he would promote in rank order unless he had a good reason not to do so.

¶ 4 In 2003, Williams was a candidate for promotion to the rank of lieutenant. The parties stipulated that Williams was a Union member, served as its president and on its negotiation team, and had filed at least one grievance on the Union's behalf. They also agreed that such activity was protected under the Act. With respect to the promotion decision at issue, Williams was the highest-ranking candidate but was passed over by Aikin in favor of a lower-ranking candidate.

¶ 5 The ALJ noted Aikin's only expressed reason for bypassing Williams was the low number of merit and efficiency points he received during the promotion process. The ALJ found the record "devoid" of similar reliance on the number of merit and efficiency points in connection with previous promotion decisions. He specifically referenced a prior instance where the highest-ranking candidate was promoted despite the fact that he also had a lower number of merit and efficiency points than another candidate. The ALJ found Aikin's reliance on low merit and efficiency points was inconsistent and concluded the only apparent difference between Williams, who was passed over, and the previous candidate, who was promoted, was Williams's union activity.

¶ 6 The ALJ's decision that the City was motivated by union animus in bypassing Williams was also based, in part, on Aikin's testimony at the hearing. Specifically, Aikin testified he chose to pass over Williams for the promotion to lieutenant because of Williams's (1) prior refusal to become head of the vice unit, (2) alleged request that a secretary change the minutes of a staff meeting, (3) lack of concern about money spent on binders for investigative documents, and (4) remark to Aikin that Aikin would be "gutted" at a union meeting. The ALJ found Aikin had not previously articulated any of those reasons either at the time of his decision not to promote Williams or during related federal court proceedings. He stated as follows:

"The shifting of Aikin's reasons for his decision points to the conclusion that it was based on union animus. Additionally, the validity of Aikin's asserted reasons are suspect as there is no evidence that Aikin did anything to validate their legitimacy. For example, while Aikin asked and knew Williams did not want the vice unit position he never asked Williams about whether he wanted a promotion to lieutenant. Nor did Aikin talk to [the secretary] or Williams about the meeting minutes incident or check into the additional cost or necessity of the more expensive binders. Additionally, while Aikin denied the 'gutted' remark had an influence on his decision he also admitted he was not happy about it and considered it evidence of disloyalty that supported his decision to deny Williams'[s] promotion." ALJ decision, 26 PERI ¶ 99, at 412.

¶ 7 Neither party filed exceptions to the ALJ's decision. However, on January 4, 2010, the Union filed a motion with the Board for attorney fees and costs against the City pursuant to section 11(c) of the Act (5 ILCS 315/11(c) (West 2008)) and title 80, section 1220.90(e), of the Illinois Administrative Code (Code) (80 Ill. Adm. Code 1220.90(e) (2010)). It alleged the City made allegations or denials without reasonable cause that were found to be untrue. The Union pointed to formal denials in the City's answer to the Union's charge, as well as Aikin's testimony as to his previously unstated reasons for denying Williams the promotion.

¶ 8 On August 27, 2010, the Board issued its decision in the matter. 26 PERI ¶ 99. It declined to impose sanctions on the City for its answers to the Union's complaint. However, the Board did award the Union attorney fees and costs for Aikin's hearing testimony. The Board stated as follows:

"We are far more troubled by the [City's] assertions raised for the first time during the hearing which were not only found by the ALJ to be untrue (a finding not challenged by the [City]) but so blatantly false that the ALJ found they constituted further evidence of union animus (again, a finding not challenged by the [City]). The [City] had full opportunity to understand its case at this point in time, and may properly be criticized for presenting never-before-offered false alternative reasons for its conduct toward Williams. ...


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