Petition for Review of the Decision and Order of the Illinois Labor Relations Board, Local Panel Case Nos. L-CA-09-046 L-CA-09-099
The opinion of the court was delivered by: Presiding Justice Quinn
PRESIDING JUSTICE QUINN delivered the judgment of the court with opinion Justices Connors and Harris concurred in the judgment and opinion.
¶ 1 This case involves direct appellate review of a decision and order entered by the Illinois Labor Relations Board finding that Cook County was guilty of an unfair labor practice by refusing to offer one of two former employees reinstatement as a settlement offer during a settlement conference and, therefore, ordered both employees reinstated with back pay despite the fact that a final, binding union arbitration decision determined the employees were terminated for just cause. The employer, Cook County appeals.
¶ 3 In 2008, background checks were ordered for all employees and volunteers at the Cook County Juvenile Temporary Detention Center (JTDC). These background checks were one of the outcomes of a federal class-action complaint filed on behalf of the juveniles residing at the JTDC. The complaint alleged that the staff physically abused residents, that management failed to investigate and discipline the abusive staff and that services provided at the JTDC were constitutionally inadequate. A federal order was entered in 2007 appointing a transitional administrator (TA) for the JTDC to bring it into compliance with constitutional standards as agreed to by the parties. The federal order gave the TA broad authority to do this. The TA, in a goal of implementing the federal order regarding the JTDC, required that all staff members and volunteers who had contact with residents at the JTDC undergo background checks to uncover both criminal conduct and any history of child abuse or neglect.
¶ 4 Two employees/nurses, Beverly Joseph and Leslie Mitchner, were assigned to the JTDC. They were discharged for gross insubordination for refusing to authorize a "Child Abuse and Neglect Tracking System" (CANTS) background check, as well as a "Law Enforcement Automated Data Systems" (LEADS) criminal background check that were ordered by the TA. Both employees were given numerous opportunities to comply but steadfastly refused even though they were informed that termination was the penalty for refusal. Additionally, they were aware that they could have cooperated and subsequently file a union grievance concerning their compliance with a background check without suffering any adverse action. This practice is commonly referred to as "comply and grieve." Instead, they both chose not to cooperate and were terminated.
¶ 5 Both employees grieved their discharges through their union. Pursuant to article XI of the collective bargaining agreement between the employees' union and Cook County, the employees' grievances on their termination was sent to binding arbitration. The arbitrator rendered an award in favor of the employer, Cook County, and found that the employer had just cause to discharge both employees because they had committed a "major cause" infraction. Both employees were found guilty of gross insubordination for failing to agree to cooperate with the required background checks.
¶ 6 The following excerpt from the arbitrator's decision summarizes the evidence against the two employees:
"The Grievants were given multiple opportunities to comply with the directive. The Employer did not act precipitously. The Grievants had many weeks to consider the matter and consult with others. Initially, they were given three weeks to provide the information, even though the task could be completed in a few minutes. When they failed to comply, they were given an additional 26 days in which to comply. They were given a reminder and a warning, and finally a choice - comply or face discipline, up to termination. They knew that if they did not comply, they would be barred from reporting to work. That fact alone should have told them that continued non-compliance made their discharge inevitable." In re Arbitration between Cook County, Illinois (Cermak/JTDC) & National Nurses Organizing Committee, Termination of Leslie Mitchner and Beverly Joseph at 28 (Opinion and Award Aug. 7, 2009).
¶ 7 Prior to the arbitration that resulted in a ruling upholding the discharges, a Cook County human resources employee met with a representative of the employees' union to attempt to settle a number of cases scheduled for arbitration, including these two discharges. At that settlement conference, the Cook County employee told the union he would be willing to reinstate Beverly Joseph but not Leslie Mitchner. There is no record of the terms of the settlement offer to reinstate Joseph or why the union refused the employer's reinstatement offer for Joseph. The record only reflects that Joseph was not reinstated as a result of the settlement offer. However, the union representative reported that she asked if the human resource employee was opposed to offering Mitchner reinstatement because she filed 14 or 15 grievances in a single day and that the Cook County employee answered "yes." Thereafter, the above-mentioned arbitration hearing was held upholding both terminations with findings of gross insubordination by the employees and just cause by the employer in taking the termination action.
¶ 8 Almost three months after the final, binding union arbitration decision that held the employer had just cause to discharge both employees, the Illinois Labor Relations Board (ILRB) consolidated Joseph's February 9, 2009 ILRB charge regarding her termination with Mitchner's June 10, 2009 ILRB charge of not giving her the same settlement offer of reinstatement as the one submitted to Joseph, and filed the instant complaint alleging that the employer had antiunion motivation in the actual discharge of the two employees. The ILRB used the single response made during the settlement conference by a Cook County employee who was not involved in the discharges concerning the grievance as evidence of antiunion motivation for the discharge and for not offering to settle Mitchner's termination during a settlement conference where Joseph was offered reinstatement.
¶ 9 Following a hearing on the ILRB charge, the administrative law judge (ALJ) recommended that the employer, Cook County, be found to be motivated by antiunion animus when it initially discharged both Joseph and Mitchner. The ALJ also recommended that the same antiunion animus caused Cook County to refuse to offer reinstatement to both employees at the settlement conference without addressing how either employee had any right to a settlement offer of reinstatement. This recommendation did not address Cook County's offer to reinstate Joseph at the settlement conference. The sole basis for the ALJ's recommendation to reinstate both employees was the reported response given by the Cook County employee at the settlement conference to a question posed to him about Mitchner.
¶ 10 The ILRB three-member panel considered the ALJ's decision together with written comments by both parties concerning the recommendation. Joseph, 27 PERI ¶ 57 (ILRB Local Panel 2011). The ILRB panel rejected the ALJ's recommended ruling that both employees were initially discharged due to antiunion animus. Two members of the ILRB panel concurred with the ALJ's recommended ruling that both employees were not offered reinstatement at the settlement conference because of antiunion animus.
¶ 11 The third ILRB panel member, dissenting from the majority's decision regarding antiunion animus at the settlement conference, held the following:
"While I concur in my colleagues' determination that Respondent did not violate the Act by terminating Mitchner and Joseph because they refused to sign the background authorization forms, I must respectfully dissent from their determination that Respondent violated the Act by refusing to reinstate them. The majority makes this determination based entirely upon the statement purportedly made by Luis Martinez that he would not reinstate Mitchner because she had filed 14 grievances in a single day. More precisely, it is based upon witness testimony concerning a single statement made during settlement discussions by a person (apparently not involved in the decision to terminate Mitchner and Joseph) about an employee (Mitchner) who all agree had been insubordinate and who had, in fact, filed an inordinate number of grievances for which (because they had been filed in her capacity as a union member, not as a union representative) she had no grounds. I find the strength of this single bit of evidence insufficient to bear the Charging Parties' burden of demonstrating that Respondent's motive in refusing to reinstate Mitchner and Joseph was union animus, and I would have dismissed the complaint in its entirety." Joseph, 27 PERI ¶57, at 253 (Member Anderson, concurring in part & dissenting in part).
¶ 12 The majority's order provided no analysis regarding the employer's offer to reinstate Joseph. No analysis was made of how this single 2009 response by a Cook County employee not involved in the decision to terminate the two employees could be found to permeate the attitude of the Cook County officials responsible for the employees' discharge and decision not to offer reinstatement to Mitchner during the settlement conference. No analysis was made of the arbitrator's decision that found the employer had just cause to terminate both employees and its legal effect on the ILRB or its decision. No analysis was provided as to how an employer could have antiunion animus when it did not offer reinstatement to a former employee who was not entitled to it as a matter of right. The panel's order did not discuss how or why it thought the absence of a settlement offer to reinstate Mitchner was an adverse employment action. It is plainly evident that an adverse employment action cannot occur by depriving a former employee of something she has no right to receive.
¶ 13 The response to a question posed by the union in 2009 during settlement negotiations was the only "evidence" submitted to demonstrate antiunion animus. The employer, Cook County, objected to the admissibility of the union representatives' recollection of the employee's response because it was made during the course of a settlement conference. The dissenting board member concluded that the single response was insufficient to meet the employees' burden of proof at the ILRB hearing to demonstrate antiunion animus in not offering reinstatement to both employees at the settlement conference.
¶ 14 The ILRB ruled that both employees should be reinstated with full back pay and benefits contingent on the employees authorizing, and now passing, the very background checks that their employer requested in the first place. So, more than 31/2 years later, the employees are placed in almost the identical position they were in just before they were fired. They must sign the authorizations for the background checks before they can be reinstated or they can choose to be unemployed by continuing to refuse to sign them, only this time they will get paid for the years they were ...