On Petition for Administrative Review from the Illinois Labor Relations Board, State Panel. ILRB Case No. S-CA-10-241
The opinion of the court was delivered by: Justice Zenoff
JUSTICE ZENOFF delivered the judgment of the court, with opinion.
Presiding Justice Burke and Justice Jorgensen concurred in the judgment and opinion.
¶ 1 This appeal involves the direct review, pursuant to section 11(e) of the Illinois Public Labor Relations Act (Act) (5 ILCS 315/11(e) (West 2010)) and Illinois Supreme Court Rule 335 (eff. Feb. 1, 1994), of a decision by the Illinois Labor Relations Board, State Panel (Board), to dismiss an unfair labor practice complaint brought by petitioner, Ann Moehring, against her former employer, the Chief Judge of the Sixteenth Judicial Circuit (Chief Judge). While her unfair labor practice complaint was pending before the Board, Moehring participated, pursuant to the terms of a collective bargaining agreement, in a grievance arbitration hearing at which the central issue was whether the Chief Judge had just cause to terminate Moehring's employment as a Kendall County probation officer. The arbitrator ruled in the Chief Judge's favor. Subsequently, the Board dismissed Moehring's unfair labor practice complaint, having determined that the criteria for deferral to the arbitrator's decision were met. On appeal, Moehring contends that, because the arbitrator was not presented with the issues raised in her unfair labor practice complaint, the Board's decision to defer to the arbitration award was improper. For the following reasons, we affirm.
¶ 3 Moehring was employed as a Kendall County probation officer from August 2003 until October 5, 2009, when her employment was terminated. During the period of Moehring's employment, all Kendall County probation officers were covered under a collective bargaining agreement between the Chief Judge and the General Chauffeurs, Salesdrivers, and Helpers, Local Union No. 330 (union), which was the exclusive representative of a collective bargaining unit consisting of the Kendall County probation officers and other court services employees. In May 2007, Moehring became a member of the union, and, thereafter, she participated in union activities. According to her unfair labor practice charge, which Moehring filed with the Board on March 31, 2010, Moehring became the "unofficial office union steward" by, among other things, passing out union membership cards, being the office's union point of contact, serving on the union's "Quality of Work Life Committee," and participating in union elections and negotiations. She further alleged that, after she became involved with the union, her supervisors began treating her differently from other employees and increased her workload to an unmanageable level. Moehring contended that her supervisors "unjustly disciplined" her and, ultimately, used the discipline to justify terminating her employment. The charge included a multipage list of events and observations that purportedly revealed the supervisors' antiunion animus.
¶ 4 On November 23, 2010, after conducting an investigation of Moehring's unfair labor practice charge pursuant to section 11(a) of the Act (5 ILCS 315/11(a) (West 2010)), the Board's executive director issued a complaint against the Chief Judge. The complaint alleged that Moehring had engaged in the following protected union activities: (1) between 2007 and 2009, Moehring had served as a union steward; (2) in late 2008, Moehring had acted as the union's observer during a representative election; (3) Moehring had participated in negotiations for a successor collective bargaining agreement; and (4) Moehring had filed numerous grievances on behalf of unit members and herself. The complaint further alleged that, in retaliation for Moehring's protected union activities, and in an effort to discourage union membership, the Chief Judge had terminated Moehring's employment, in violation of sections 10(a)(1) and 10(a)(2) of the Act (5 ILCS 315/10(a)(1), (a)(2) (West 2010)).
¶ 5 The Board's executive director assigned Moehring's unfair labor practice complaint to an administrative law judge (ALJ) for hearing. On June 24, 2011, before the ALJ had conducted a hearing, the Chief Judge filed a motion to dismiss the complaint on the basis that deferral to the grievance arbitration award, which the arbitrator had issued on June 13, 2011, was appropriate. The motion alleged that, pursuant to the terms of the collective bargaining agreement, the union, on Moehring's behalf, and the Chief Judge had participated in a three-day grievance arbitration hearing. At issue during the arbitration hearing was whether there was just cause for Moehring's termination, as well as for earlier two-day and five-day suspensions,*fn1 as article XII of the collective bargaining agreement required.*fn2 The Chief Judge contended that at the hearing Moehring had presented evidence of her union activities and had argued, in part, that her supervisors' antiunion animus had motivated their decisions to discipline and, ultimately, to terminate her. Furthermore, the Chief Judge pointed out, in addition to concluding in the 32-page arbitration award that there was just cause for Moehring's suspensions and termination, the arbitrator found as follows:
"I have carefully reviewed the evidence in this case and while it does appear that [Moehring] was involved in various [u]nion activities, there is no substantial and reasonable correlation between her [u]nion activities and the disciplines imposed upon her. I cannot find that there is any nexus between [Moehring's] [u]nion activities and the disciplines imposed." Because the arbitration award addressed Moehring's allegations that antiunion animus motivated her termination, the Chief Judge argued, the Board should defer to the arbitration award and dismiss Moehring's unfair labor practice complaint.
¶ 6 After additional briefing, on August 31, 2011, the ALJ issued a recommended decision and order in which she concluded that deferral to the arbitration award was appropriate. The ALJ stated that the Board follows the "Spielberg standard" (Spielberg Manufacturing Co., 112 N.L.R.B. 1080 (1955)) to resolve the issue of postarbitration deferral. Under that standard, it is proper for the Board to defer to an arbitration award where (1) the unfair labor practice issues have been presented to and considered by the arbitrator; (2) the arbitration proceedings appear to have been fair and regular; (3) all parties to the arbitration agreed to be bound by the award; and (4) the arbitration is not clearly repugnant to the purposes and policies of the Act. The ALJ concluded that all four Spielberg factors had been met. On that basis, the ALJ recommended that the Board dismiss Moehring's unfair labor practice complaint.
¶ 7 Pursuant to section 1200.135(b) of the Board's rules (80 Ill. Adm. Code 1200.135(b) (2003)), Moehring filed exceptions to the ALJ's recommended decision and order. On February 22, 2012, the Board issued its written decision and order, in which it accepted the ALJ's recommendation and deferred to the arbitration award, dismissing Moehring's unfair labor practice complaint. The Board rejected Moehring's argument that the record of the arbitration proceedings "did not support the arbitrator's framing of the issues, findings[,] and conclusion," reasoning that Moehring's argument would have required the Board to look beyond the four Spielberg factors. The Board stated, "In determining whether Spielberg deferral is appropriate, we do not examine the arbitration record to determine if it supports the arbitrator's findings." Here, the Board reasoned, the arbitrator "clearly did address the unfair labor practice issue, and the transcript reveals that [Moehring's] representative had indeed raised the issue before the arbitrator in its opening argument." The Board further noted, "Whether [Moehring] had at the arbitration hearing presented all the evidence [she] could muster in support of [her] argument is of no moment." Moehring timely filed a petition for administrative review by this court.
¶ 9 Moehring contends that it was improper for the Board to defer to the arbitrator's decision and to dismiss her unfair labor practice complaint. Moehring's primary argument is that deferral was improper because she did not raise the issue of antiunion animus before the arbitrator or present evidence in support of her position on that issue. She also contends that any finding by the arbitrator on the issue of antiunion animus was unsupported by the record of the arbitration proceedings. The Chief Judge contends that Moehring did raise the issue of antiunion animus during the arbitration hearing and that, regardless of whether Moehring was successful in presenting sufficient evidence to support her position, the arbitrator considered and ruled on the issue. The Chief Judge contends that deferral was proper under these circumstances.
¶ 10 Sections 10(a)(1) and 10(a)(2) of the Act provide, in pertinent part, that it is an unfair labor practice for an employer or its agents "to interfere with, restrain or coerce public employees in the exercise of the rights guaranteed in this Act" (5 ILCS 315/10(a)(1) (West 2010)) or "to discriminate in regard to hire or tenure of employment or any term or condition of employment in order to encourage or discourage membership in or other support for any labor organization" (5 ILCS 315/10(a)(2) (West 2010)). An employee who files an unfair labor practice charge against an employer for discharge based upon the employee's protected union activity must show by a preponderance of the evidence that the discharge was motivated by the employer's antiunion animus. North Shore Sanitary District v. Illinois State Labor Relations Board, 262 Ill. App. 3d 279, 287 (1994). Once the employee meets this burden, the burden then shifts to the employer to show that the discharge was based on bona fide, non-pretextual, legitimate business reasons. North Shore, 262 Ill. App. 3d at 287. Where the employer is able to establish that its discharge decision was based in part on legitimate business reasons, in order to prevail the employer must demonstrate by a preponderance of the evidence that it would have discharged the employee despite the employee's union involvement. North Shore, 262 Ill. App. 3d at 287. Here, rather than address these issues at a hearing on Moehring's unfair labor practice complaint, the Board deferred to the arbitrator's decision in accordance with section 11(i) of the Act. See 5 ILCS 315/11(i) (West 2010) (permitting the Board to resolve an unfair labor practice charge by deferring to a grievance arbitration award).
¶ 11 Neither party disputes that the Board had the authority under the Act to defer to the arbitration award; however, the parties dispute whether it was proper for the Board to do so. Both parties agree that the "Spielberg standard" governs this issue. As the ALJ stated in her recommended decision and order, under the Spielberg standard it is proper for the Board to defer to an arbitration award where (1) the unfair labor practice issues have been presented to and considered by the arbitrator; (2) the arbitration proceedings appear to have been fair and regular; (3) all parties to the arbitration agreed to be bound by the award; and (4) the arbitration is not clearly repugnant to the purposes and policies of the Act. Alton Firefighters Ass'n, IAFF Local 1255, 22 PERI ¶ 102 (ILRB State Panel 2006) (citing Spielberg, 112 N.L.R.B. 1080); Brown, 16 PERI ¶ 3010 (ILRB Local Panel 1999). Moehring raises no argument concerning either the second or the third Spielberg factor. Thus, we will limit our discussion to whether the first and fourth Spielberg factors were met.
¶ 12 Both Moehring and the Chief Judge agree that the question of whether it was proper for the Board to defer to the arbitrator's decision presents a mixed question of fact and law and that we should apply the "clearly erroneous" standard of review. "Mixed questions of fact and law are 'questions in which the historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the statutory standard, or to put it another way, whether the rule of law as applied to the established facts is or is not violated.' " American Federation of State, County & Municipal Employees, Council 31 v. Illinois State Labor Relations Board, State Panel, 216 Ill. 2d 569, 577 (2005) (quoting Pullman-Standard v. Swint, 456 U.S. 273, 289 n.19 (1982)).
A reviewing court will reverse an agency's decision on a mixed question of fact and law only when the decision is clearly erroneous, which is "when the reviewing court is left with the definite and firm conviction that a mistake has been committed." American Federation, 216 Ill. 2d at 577-78.*fn3
¶ 13 Moehring argues that the Board erred in determining that the first Spielberg factor was met, because no unfair labor practice issue was presented to the arbitrator. She points out that, in the union's posthearing brief submitted to the arbitrator, it listed the issues to be decided as follows: (1) "Was [Moehring] disciplined for just cause?"; (2) "If so, was termination the appropriate progressive discipline?"; and (3) "If not, what is the appropriate remedy?" Moehring also cites the arbitrator's written decision, which listed the issue as, "Did the [e]mployer have just cause to issue a 2-day [s]uspension, a 5-day [s]uspension[,] and a [d]ischarge to [Moehring]?" She also points out ...