County of Menard v. Illinois State Labor Relations Bd.

• Decision Date: 27 September 1990
• Docket Number: No. 4-90-0024,R,AFL-CI,4-90-0024
• Citation: 202 Ill.App.3d 878,560 N.E.2d 1236
• Parties: , 148 Ill.Dec. 639 COUNTY OF MENARD, Petitioner, v. ILLINOIS STATE LABOR RELATIONS BOARD and American Federation of State, County, and Municipal Employees, Council 31,espondents.
• Court: United States Appellate Court of Illinois

Page 1236

560 N.E.2d 1236

202 Ill.App.3d 878, 148 Ill.Dec. 639

COUNTY OF MENARD, Petitioner, v. ILLINOIS STATE LABOR RELATIONS BOARD and American Federation of State, County, and Municipal Employees, Council 31, AFL-CIO, Respondents.

No. 4-90-0024.

Appellate Court of Illinois Fourth District.

Sept. 27, 1990.

Rehearing Denied Oct. 29, 1990.

Carol Pope, State's Atty., Petersburg, Andrew A. Peterson, Timothy D. Speedy, Jackson, Lewis, Schnitzler & Krupman, White Plains, for petitioner.

Gilbert Feldman, Cornfield and Feldman, Chicago, for AFSCME.

Neil F. Hartigan, Atty. Gen., Chicago, Robert Ruiz, Sol. Gen., William D. Frazier, Asst. Atty. Gen., for I.S.L.R.B.

Presiding Justice KNECHT delivered the opinion of the court:

Respondent County of Menard (County) challenges the decision of the Illinois State Labor Relations Board (ISLRB or Labor Board) (County of Menard, 6 Pub. Employee Rep. (Ill.) par. 2006, No. S-CA-87-46 (Illinois State Labor Relations Board, Dec. 11, 1989)) finding the County violated sections 10(a)(1) and 10(a)(2) of the Illinois Public Labor Relations Act (Act) (Ill.Rev.Stat.1985, ch. 48, pars. 1610(a)(1), (a)(2)) by discharging Donald Witherell, a maintenance employee at the County's Sunny Acres Nursing Home (nursing home). The County's previous appeal in this case challenged the September 23, 1987, decision of the Labor Board, which found the County had violated section 10(a)(2) of the Act by discharging Witherell. In County of Menard v. Illinois State Labor Relations Board (1988), 177 Ill.App.3d 139, 126 Ill.Dec. 453, 531 N.E.2d 1080, we reversed and remanded the cause to the Labor Board for application of the Wright Line test to the facts found below. The County now contends: (1) it was prejudicial error for the Labor Board not to consider evidence presented at the supplemental hearing; and (2) the County met its burden under the Wright Line test and the Labor Board's decision was against the manifest weight of the evidence. We affirm.

PROCEDURAL BACKGROUND

On August 21, 1986, Witherell was dismissed from his position at the nursing home by the Menard County Board (County Board), which has the exclusive authority to hire and fire employees. On September 5, 1986, the American Federation of State, County, and Municipal Employees (AFSCME or union) filed charges with the Labor Board alleging Witherell was discharged due to his union activity. The Labor Board's Executive Director issued a complaint December 24, 1986, alleging violations of sections 10(a)(1) and (a)(2) of the Act. Hearings followed and the hearing officer issued a recommended decision March 24, 1987. (County of Menard, 3 Pub. Employee Rep. (Ill.) par. 2043, No. S-CA-87-46 (Illinois State Labor Relations Board, June 1, 1987 (Hearing Officer's decision of Mar. 24, 1987, appended)).) The hearing officer concluded since the County Board, which had the exclusive authority to hire and fire employees, possessed no antiunion motivation, Witherell was not unlawfully fired. The Labor Board adopted the hearing officer's factual findings but reversed his conclusions of law. The cause was remanded to the hearing officer to determine whether the nursing home's administrator, Warren Dick, possessed illegal motivation in bringing the charges against Witherell, which resulted in Witherell's termination by the County Board. See County of Menard, 3 Pub. Employee Rep. (Ill.) par. 2043, No. S-CA-87-46 (Illinois State Labor Relations Board, June 1, 1987).

The hearing officer issued a supplemental recommended decision and order July 8, 1987, finding Dick was motivated by antiunion hostility and the discharge was based on Witherell's protected activity, resulting in violations of the Act. (County of Menard, 3 Pub. Employee Rep. (Ill.) par. 2058, No. S-CA-87-46 (Illinois State Labor Relations Board, Sept. 23, 1987 (Hearing Officer's supplemental decision of July 8, 1987, appended)).) The Labor Board adopted the hearing officer's supplemental decision on September 23, 1987; however, the Labor Board found that several findings of antiunion hostility made by the hearing officer in the supplemental decision were not supported by the record. The Labor Board concluded enough evidence of antiunion motivation existed in the record, however, to support the hearing officer's conclusion. See County of Menard, 3 Pub. Employee Rep. (Ill.) par. 2058, No. S-CA-87-46 (Illinois State Labor Relations Board, Sept. 23, 1987).

Pursuant to the County's petition for review, we reversed and remanded, instructing the Labor Board to apply the test set forth in Wright Line, a Division of Wright Line, Inc. (1980), 251 N.L.R.B. 1083, 105 L.R.R.M. 1169, instead of the test in State of Illinois (Departments of Central Management Services & Corrections), 1 Pub. Employee Rep. (Ill.) par. 2020, No. S-CA-54 (Illinois State Labor Relations Board, Sept. 13, 1985)), which the Labor Board had previously applied. In our opinion, we stated "we reverse and remand this cause to the ISLRB for application of the Wright Line test to the facts found below." Menard, 177 Ill.App.3d at 152, 126 Ill.Dec. at 462, 531 N.E.2d at 1089.

On October 20, 1989, the Labor Board issued an order determining it was necessary to conduct a supplemental hearing in this matter. The matter was assigned to another hearing officer, who found the court opinion unclear as to whether the case needed to be reopened for further evidence. The hearing officer scheduled a supplemental hearing and instructed the parties they would be afforded the opportunity to present further evidence. The parties would be allowed to argue the admissibility of the evidence received in their briefs. The hearing officer stated he would make a decision regarding the admissibility of the evidence in his recommendation to the Labor Board. On March 17, 1989, AFSCME petitioned the appellate court to clarify the terms of the remand. This motion was denied on March 27, 1989.

A supplemental hearing was held on April 25, 1989. At this hearing, Warren Dick and Pamela S. Behrans testified for the County. On August 17, 1989, the hearing officer issued his recommended decision and order. (County of Menard, 6 Pub. Employee Rep. (Ill.) par. 2006, No. S-CA-87-46 (Illinois State Labor Relations Board, Dec. 11, 1989 (Hearing Officer's decision pursuant to appellate remand of Aug. 17, 1989, appended)).) The hearing officer adopted the factual findings of the Labor Board's September 23, 1987, decision (County of Menard, 3 Pub. Employee Rep. (Ill.) par. 2058, No. S-CA-87-46 (Illinois State Labor Relations Board, Sept. 23, 1987)) and recommended the evidence offered during the supplemental hearing not be considered in the disposition. He cited the absence of such a direction in the court's previous decision. The hearing officer concluded the County had met its burden under the Wright Line test and, accordingly, he recommended the complaint be dismissed. On December 11, 1989, the Labor Board issued its supplemental decision and order in which it adopted the hearing officer's findings of fact and his conclusion rejecting the supplemental evidence. However, the Labor Board rejected the hearing officer's conclusion of law and found, under the Wright Line test, the County had violated sections 10(a)(1) and 10(a)(2) of the Act. The County has now appealed this ruling, arguing (1) the ISLRB erred in not considering the remand; (2) the ISLRB did not comply with the order on remand, and its decision is not supported by the record; and (3) the County met its burden under Wright Line, so the ISLRB's finding the employee's discharge constituted an unfair labor practice should be reversed.

ANALYSIS

With respect to the first issue, the Labor Board did not err in excluding the evidence offered at the supplemental hearing. It is generally held when a reviewing court remands a cause with specific directions, they must be followed exactly; but if specific directions are not given, the trial court (or, as here, the administrative agency) is required to examine the appellate court's opinion and determine from it what further proceedings would be proper and consistent with the opinion. John Burns Construction Co. v. Interlake, Inc. (1984), 125 Ill.App.3d 26, 80 Ill.Dec. 527, 465 N.E.2d 639. Our previous opinion stated: "we reverse and remand this cause to the ISLRB for application of the Wright Line test to the facts found below." (Emphasis added.) (Menard, 177 Ill.App.3d at 152, 126 Ill.Dec. at 462, 531 N.E.2d at 1089.) The plain meaning of this statement does not require the admission of additional evidence and does provide clear, specific directions for remand. The Wright Line test is such that there was no need for additional evidence.

With respect to the remaining issues raised by the County, we have considered the facts as found by the hearing officer(s) and the ISLRB. Witherell started working for the County in 1971. From 1971 until April 1980, Witherell worked in the County's highway department. From April 1980 until August 21, 1986, Witherell worked at the nursing home. When Witherell started at the nursing home, he was given the job title of maintenance director. Warren Dick was hired in February 1982, as the nursing home administrator. As administrator, Dick was responsible for the overall financial state of the nursing home, all personnel matters at the home, and for ensuring the nursing home complied with regulations.

Witherell was on call 24 hours a day and was frequently called into the nursing home during his scheduled time off. Because the nursing home paid no overtime, Witherell was permitted to take off compensation time for every hour of overtime he worked. Witherell performed his work with little or no supervision and generally ensured the physical and mechanical problems of the nursing home were overcome. Dick admittedly recognized this fact and, in 1983, named Witherell "Employee of the Month." Witherell was subsequently elected "Employee of...