Hardin County Educ. Ass'n, IEA-NEA v. Illinois Educational Labor Relations Bd.

• Decision Date: 18 August 1988
• Docket Number: Nos. 4-87-0490,No. 1,IEA-NE,R,4-87-0506,P,1,s. 4-87-0490
• Citation: 124 Ill.Dec. 49,174 Ill.App.3d 168,528 N.E.2d 737
• Parties: , 124 Ill.Dec. 49, 49 Ed. Law Rep. 659 HARDIN COUNTY EDUCATION ASSOCIATION,etitioner, v. ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD and Hardin County Community Unit School Districtespondents. The BOARD OF EDUCATION OF HARDIN COUNTY COMMUNITY UNIT SCHOOL DISTRICT NO. 1, Petitioner, v. ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD and Hardin County Education Association,espondents.
• Court: United States Appellate Court of Illinois

Page 737

528 N.E.2d 737

174 Ill.App.3d 168, 124 Ill.Dec. 49,

49 Ed. Law Rep. 659

HARDIN COUNTY EDUCATION ASSOCIATION, IEA-NEA, Petitioner, v. ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD and Hardin County

Community Unit School District No. 1, Respondents.

The BOARD OF EDUCATION OF HARDIN COUNTY COMMUNITY UNIT

SCHOOL DISTRICT NO. 1, Petitioner, v. ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD and Hardin County

Education Association, IEA-NEA, Respondents.

Nos. 4-87-0490, 4-87-0506.

Appellate Court of Illinois Fourth District.

Aug. 18, 1988.

Michael A. Loizzi, Jr., S. Bennet Rodick, Marc R. Jacobs, Gottlieb & Schwartz, Chicago, for Hardin County Community Unit School Dist. # 1.

Gregory J. Malovance, Stephen S. Morrill, Winston & Strawn, Chicago, Sandra Holman, Illinois Educ. Ass'n, Springfield, for Hardin County Educ. Ass'n.

Neil F. Hartigan, Atty. Gen., Chicago, Shawn W. Denney, Sol. Gen., William D. Frazier, Asst. Atty. Gen., for I.E.L.R.B Justice SPITZ delivered the opinion of the court:

The Hardin County Education Association, IEA-NEA (Association or union), seeks review of the June 17, 1987, opinion and order of the Illinois Educational Labor Relations Board (IELRB or Labor Board), finding that the Board of Education of Hardin County Community Unit School District No. 1 (District or Board) did not commit an unfair labor practice in violation of sections 14(a)(1) and 14(a)(3) of the Illinois Educational Labor Relations Act (Act) (Ill.Rev.Stat.1985, ch. 48, par. 1714(a)(1, 3)), by dismissing art teacher Eileen Sandra Williams. The District appeals the IELRB's ruling, also issued in the June 17, 1987, opinion and order, that the District committed unfair labor practices in violation of section 14(a)(1) of the Act (Ill.Rev.Stat.1985, ch. 48, par. 1714(a)(1)) by (1) reprimanding teacher Carol Walker, and (2) questioning counselor Linda St. Onge about her union affiliation and that of another teacher. For the reasons that follow, we affirm.

The Association filed charges with the IELRB August 27, 1985. Following an investigation, the IELRB Executive Director issued a complaint December 19, 1985, alleging the District, in dismissing Williams for engaging in protected and concerted activity, violated sections 14(a)(1) and 14(a)(3) of the Act. The complaint also alleged a formal reprimand given to Walker and the questioning of St. Onge violated section 14(a)(1) of the Act. Following hearings March 17, 18, and 19, 1986, the IELRB hearing officer issued his recommended decision and order August 29, 1986. Hardin County Education Association, IEA-NEA, 2 Pub.Employee Rep. (Ill.) par. 1110, case No. 85- CA- 0032-S (Illinois Educational Labor Relations Board, Aug. 29, 1986) (hearing officer).

The hearing officer found the Association had established a prima facie case of discriminatory discharge, but ruled the District met its burden of showing the discharge would have occurred absent the protected activity. The hearing officer also found the District violated section 14(a)(1) by reprimanding Walker and questioning St. Onge. The IELRB adopted the hearing officer's findings of fact in an opinion and order issued June 17, 1987. (Hardin County Education Association, IEA-NEA, 3 Pub.Employee Rep. (Ill.) par. 1076, case No. 85-CA-0032-S (Illinois Educational Labor Relations Board, June 17, 1987).) Although the Labor Board affirmed the result, it differed with the hearing officer over whether the Association had made out a prima facie case of discriminatory discharge. It ruled no prima facie case had been established, and further found that even if the Association had made out a prima facie case, the District met its burden of showing the discharge would have occurred absent the protected activity. The Labor Board also affirmed the hearing officer's ruling that Walker's reprimand and St. Onge's questioning violated the Act. The Association and the District filed petitions for review July 22, 1987, and July 24, 1987. The cases were consolidated for review.

Given the extensive factual findings in the case, we will refer only to those facts necessary to our resolution of the issues presented. The underlying facts are set forth in the hearing officer's recommended decision and order, Hardin County Education Association, IEA-NEA, 2 Pub.Employee Rep. (Ill.) par. 1110, case No. 85-CA-0032-S (Illinois Educational Labor Relations Board, Aug. 29, 1986) (hearing officer), and were adopted by the IELRB. Hardin County Education Association, IEA-NEA, 3 Pub.Employee Rep. (Ill.) par. 1076, case No. 85-CA-0032-S (Illinois Educational Labor Relations Board, June 17, 1987).

A. Williams' Dismissal

The Association urges this court on appeal to adopt an "in part" test in section 14(a)(3) cases rather than the "but for" test applied by the hearing officer and the Labor Board. The Association also argues the IELRB's decision upholding Williams' dismissal is against the manifest weight of the evidence. The District and the IELRB contend the Labor Board's decision is supported by the evidence.

As a general rule, courts will accord deference to the interpretation placed on a statute by the agency charged with its administration and enforcement. (Blum v. Bacon (1982), 457 U.S. 132, 141, 102 S.Ct. 2355, 2361, 72 L.Ed.2d 728, 736; Airey v. Department of Revenue (1987), 116 Ill.2d 528, 536, 108 Ill.Dec. 481, 485, 508 N.E.2d 1058, 1062.) An administrative agency's interpretation is not binding, however, and it will be rejected when it is erroneous. Securities Industry Association v. Board of Governors (1984), 468 U.S. 137, 142-43, 104 S.Ct. 2979, 2982, 82 L.Ed.2d 107, 113; Northern Trust Co. v. Bernardi (1987), 115 Ill.2d 354, 365, 105 Ill.Dec. 220, 225, 504 N.E.2d 89, 94.

The decisions of the National Labor Relations Board (NLRB) and the Federal courts interpreting similar provisions under the National Labor Relations Act (NLRA) (29 U.S.C. § 151 et seq. (1982)) are persuasive authority. The Labor Board is not, however, bound to interpret the Act as the NLRB or the Federal courts have interpreted the NLRA. (East Richland Education Association, IEA-NEA v. Illinois Educational Labor Relations Board (1988),173 Ill.App.3d 878, 902, 124 Ill.Dec. 63, 77, 528 N.E.2d 751, 765.) Nevertheless, we find the interpretation and approach stated by the Board in its decision here is essentially in agreement with NLRB precedent.

We first address the test applied by the hearing officer and the IELRB. In concluding the District did not violate section 14(a)(3) by discharging Williams, the hearing officer applied a "but for" test adopted by the IELRB in Balyki Education Association, IEA/NEA, 2 Pub.Employee Rep. (Ill.) par. 1047, case No. 84-CA-0018 (Illinois Educational Labor Relations Board, Mar. 11, 1986). In Balyki, the IELRB held that once the complaining party established a prima facie case of discriminatory discharge, the burden of proof shifted to the employer to demonstrate by a preponderance of the evidence that the discharge occurred for legitimate reasons. This allocation of the burden of proof, as applied to cases under the NLRA (29 U.S.C. § 151 et seq. (1982)), originated in Wright Line, a Division of Wright Line, Inc. (1980), 251 N.L.R.B. 1083, 105 L.R.R.M. 1169, enforced (1st Cir.1981), 662 F.2d 899, 108 L.R.R.M. 2513, cert. denied (1982), 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848, and approved in NLRB v. Transportation Management Corp. (1983), 462 U.S. 393, 400-01, 103 S.Ct. 2469, 2473-74, 76 L.Ed.2d 667, 674-75.

In Wright Line, the NLRB expressed dissatisfaction with tests which had evolved to analyze the relationship between the employee's protected conduct and the employer's action. In Wright Line, the NLRB expressly rejected the "in part" test, under which a discharge was improper if it was motivated, even in part, by opposition to the exercise of rights protected under the NLRA, even if a legitimate business reason was also relied upon. This test had come under attack for its inability, in dual motivation cases, to resolve the conflict between the employer's legitimate right to enforce its own rules and the employee's right to participate in protected activities without fear of employer retaliation. Under the "in part" test, the employer's legitimate business reason for discharge would be irrelevant, at least to the determination of whether an unfair labor practice has been committed, once the employee established employer hostility toward the union. See Wright Line, 251 N.L.R.B. at 1084, 105 L.R.R.M. at 1170-71.

The NLRB found the interests of employer and employee best served by a test akin to the two-part test formulated by the Supreme Court in Mt. Healthy City School District Board of Education v. Doyle (1977), 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471. That test, applied in the context of a first amendment challenge, required the employee to establish the protected conduct was a substantial or motivating factor in the discharge. Once this was established, the burden shifted to the employer to demonstrate it would have reached the same decision absent the protected conduct. The NLRB reasoned the test protected both parties. The employee only had to show that protected activities played a part in the decision to discharge. The employer was allowed to show it would have dismissed the employee for reasons unrelated to protected activity. Wright Line, 251 N.L.R.B. at 1089, 105 L.R.R.M. at 1174-75.

In enforcing the NLRB's order, the First Circuit Court of Appeals agreed with the NLRB's allocation of the burden of proof. It recognized the difficulty of pinpointing the causal link between the protected activity and the employee's dismissal. The court reasoned that the most accurate method of deciding the issue was to determine whether the discharge would have occurred "but for" the protected activity. Wright Line, 662 F.2d at 903, 108 L.R.R.M. at 2516.

The court noted the "in part" test ran the risk of immunizing employees engaging...