Murry v. AFSCME, LOCAL 1111

• Decision Date: 28 May 1999
• Docket Number: No. 1-98-1389.,1-98-1389.
• Citation: 238 Ill.Dec. 770,712 N.E.2d 874,305 Ill. App.3d 627
• Parties: Violar MURRY, Petitioner-Appellant, v. AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, LOCAL 1111, and Illinois Local Labor Relations Board, Respondents-Appellees.
• Court: United States Appellate Court of Illinois

712 N.E.2d 874

305 Ill. App.3d 627

238 Ill.Dec. 770

Violar MURRY, Petitioner-Appellant, v. AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, LOCAL 1111, and Illinois Local Labor Relations Board, Respondents-Appellees.

No. 1-98-1389.

Appellate Court of Illinois, First District, Fifth Division.

May 28, 1999.

Nunc Pro Tunc March 31, 1999.

Barry A. Gomberg, Barry A. Gomberg & Associates, Ltd., Chicago, for Appellant.

James E. Ryan, Barbara A. Preiner, Edmund C. Baird (of counsel), Attorney General Office, Chicago, for Appellees.

Presiding Justice HOURIHANE delivered the opinion of the court:

Petitioner Violar Murry appeals from a decision and order of respondent Illinois Local Labor Relations Board which dismissed her charge of unfair labor practice against respondent American Federation of State, County and Municipal Employees, Local 1111. On appeal, petitioner contends that (1) respondent Board misinterpreted certain qualifying provisions of section 10(b)(1) of the Illinois Public Labor Relations Act (Act) (5 ILCS 315/10(b)(1)(West 1996)) in determining that no issue of fact or law existed sufficient to entitle her to a hearing in connection with her charge and (2) the dismissal of her aforementioned charge was in error.

For the reasons that follow, we affirm.

BACKGROUND

In July 1997, petitioner filed a charge of unfair labor practice against respondent union, asserting that the latter failed to properly represent her during a January 1997 grievance hearing in violation of section 10(b)(1) of the Act. Within her charge, petitioner alleged that she was employed by Cook County Hospital as a clerk, and that, in November 1996, she was transferred from her position in the oncology department. Petitioner understood the transfer to be temporary. However, she later learned it was permanent, and that a less experienced individual was to assume her former position. Petitioner complained to her employer, charging a violation of their collective bargaining agreement.

Petitioner further alleged that, during a January 1997 grievance hearing on that charge, her union representatives "took a condescending stance" toward her and "argued with her about the filing of her grievance." Petitioner also complained that the hearing was neither fair nor impartial, and that it descended into "a forum for false accusations against [her] * * *." Specifically, petitioner averred that Bettina Helm-Thornell informed the hearing officer that she had filed a police report, in October 1996, regarding a threat petitioner purportedly made to Beulah Brent, another hospital employee. However, Brent, who was also present at the hearing, flatly denied any such event.

Petitioner further alleged that although she was eventually offered her former position in oncology, she was also warned she would be subject to discipline upon her return.

An investigation of the aforementioned charge, as required by section 11 of the Act (5 ILCS 315/11 (West 1996)), ensued. That investigation culminated in an order of dismissal from Brian E. Reynolds, executive director of respondent Board. As a part of that order, Reynolds chronicled the facts discovered during the investigation. According to Reynolds, petitioner had worked in the hospital for over two-and-a-half years, during which time she had become friends with Brent. Reynolds noted petitioner alleged that Brent was promoted to the position of administrator within the oncology department in 1996, and that Brent subsequently promised her a promotion, within a year, if she transferred from oncology to pediatrics. Petitioner did so in August 1996, but soon became convinced Brent had lied to her regarding the promotion.

Petitioner complained the following September, requesting her return to oncology.

In October, a representative of respondent union reported to the hospital that petitioner had threatened Brent. An investigation and report followed. That report, as Reynolds explained, found that the "personal relationship" between petitioner and Brent ended at the time Brent was promoted to the position of administrator, that no promise of promotion was made to petitioner, and that the transfer complained of by petitioner was routine "cross-training and rotation of all clinical area staff." According to Reynolds, the report also "expressed uneasiness" about petitioner working under Brent should she return to oncology.

The next month, petitioner filed a grievance concerning her transfer to pediatrics. A hearing followed on January 30, 1997.

At that hearing, petitioner stated that she no longer desired to return to oncology and, in fact, withdrew her objection to her transfer. The grievance was accordingly dismissed by the hearing officer as moot.

Reynolds then determined that the aforementioned evidence and allegations did not establish an issue of fact or law sufficient to entitle petitioner to a hearing on her charge. In so finding, Reynolds relied upon a Seventh Circuit precedent, Hoffman v. Lonza, Inc., 658 F.2d 519 (7th Cir.1981). Therein, the court of appeals held that, under the National Labor Relations Act (NLRA) (29 U.S.C. § 151 et seq. (1988)), a union cannot be said to have breached its duty of fair representation unless its actions are shown to have been "intentional, invidious, and directed against an employee * * *." 658 F.2d at 520. Based thereon, Reynolds dismissed the charge.

Petitioner appealed to respondent Board. Petitioner argued that the dismissal of her charge against respondent union was in error. Petitioner maintained there was "credible evidence" that respondent union acted intentionally to disadvantage her during the January 1997 grievance hearing. Specifically, petitioner argued that there was evidence that she was threatened with disciplinary action if she did not withdraw her objection to her transfer from oncology. According to petitioner, because she had done nothing to warrant any disciplinary action, such evidence served to establish the hostile motivation of respondent union against her. Petitioner further argued that she was not allowed to rebut or present her version of events generally. Petitioner also maintained that Reynolds' reliance upon Hoffman was error. According to petitioner, the "intentional misconduct" standard set forth within Hoffman was no longer good law in light of the subsequent Supreme Court decision in Air Line Pilots Ass'n, International v. O'Neill, 499 U.S. 65, 111 S.Ct. 1127, 113 L.Ed.2d 51 (1991). Therein, the Supreme Court held that a union breaches its duty of fair representation, under the NLRA, if its actions are shown to have been either arbitrary, discriminatory or in bad faith. 499 U.S. at 67,111 S.Ct. 1127.

In March 1998, respondent Board affirmed the dismissal of her grievance. Respondent Board also held that the standard of "intentional misconduct," as set forth in Hoffman, was correctly relied upon by Reynolds in determining that no issue of fact or law existed sufficient to entitle petitioner to a hearing in connection with her charge against respondent union.

This appeal followed.

DISCUSSION

I.

The Illinois Public Labor Relations Act took effect in 1984. Pub. Act 83-1012, eff. July 1, 1984. Many of its provisions, including section 10 which prohibited a union from restraining or coercing a union member in the exercise of certain guaranteed rights (Ill. Rev.Stat.1985, ch. 48, par. 1610), closely parallel various provisions of the NLRA. See City of Burbank v. State Labor Relations Board, 128 Ill.2d 335, 345, 131 Ill.Dec. 590, 538 N.E.2d 1146 (1989). Indeed, at the time section 10 of the Act took effect, that particular provision was virtually indistinguishable from section 8 of the NLRA. Compare Ill. Rev.Stat.1985, ch. 48, par. 1610(b)(1) with 29 U.S.C. § 158(b)(1)(1988).

In 1988, the Illinois State Labor Relations Board recognized a duty of fair representation under the Act, which, it further deemed, would be held to have been violated when a union, through inadvertence or gross negligence, ignored the rights of a member. Moore v. State Labor Relations Board, 206 Ill.App.3d 327, 333, 151 Ill.Dec. 236, 564 N.E.2d 213 (1990). In so holding, the Illinois State Labor Relations Board declined to follow several Federal decisions, including Hoffman, all of which held that, under the NLRA, a union breaches its duty of fair representation only through intentional misconduct. Moore, 206 Ill.App.3d at 333, 151 Ill.Dec. 236, 564 N.E.2d 213.

In 1989, section 10(b)(1) of the Act was amended by the General Assembly. Pub. Act 86-412, eff. August 30, 1989. As amended, section 10(b)(1) provided "that a labor organization or its agents shall commit an unfair labor practice * * * in duty of fair representation case only by intentional misconduct." Ill.Rev.Stat.1989, ch. 48, par. 1610(b)(1)(ii).

Two years later, in 1991, the Supreme Court decided O'Neill. That decision rejected the "intentional misconduct" standard set forth within Hoffman. It held that, under the NLRA, a union breaches its duty of fair representation if its actions are shown to have been arbitrary, discriminatory or in bad faith. O'Neill, 499 U.S. at 67, 111 S.Ct. 1127.

Petitioner now contends that, like the "intentional misconduct" standard of Hoffman, section 10(b)(1) of the Act must be interpreted in light of O'Neill, thus requiring respondent Board to have assessed her charge of unfair labor practice under the less stringent standard of the latter decision. According to petitioner, by employing the term "intentional misconduct," as was used in Hoffman, the General Assembly must be deemed to have intended subsequent Federal case law, including changes in such law, to be accorded binding effect in connection with the interpretation of the "intentional misconduct" provision of section 10(b)(1). Indeed, petitioner argues that by its inaction following O'Neill, the General Assembly must be presumed to have indicated its approval of that decision as well as its...