Pace Suburban Bus Div. of The Reg'l Transp. Auth. v. Ill. Labor Relations Bd.
| Decision Date | 08 December 2010 |
| Docket Number | No. 1–09–2582.,1–09–2582. |
| Citation | 406 Ill.App.3d 484,942 N.E.2d 652,189 L.R.R.M. (BNA) 3101,347 Ill.Dec. 449 |
| Parties | PACE SUBURBAN BUS DIVISION OF the REGIONAL TRANSPORTATION AUTHORITY, d/b/a Pace Northwest Division, Petitioners,v.ILLINOIS LABOR RELATIONS BOARD, State Panel, and Urszula T. Panikowski, Respondents. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
Schuyler, Roche & Crishman, P.C., Chicago (Thomas G. Draths, Joseph J. Stevens, Peggy J. Osterman, of counsel), for Appellants.Lisa Madigan, Attorney General for the State of Illinois (Solicitor General Michael A. Scodro, Assistant Attorney General Christopher M. R. Turner, of counsel), Stitt, Klein, Daday, Aretos & Giampietro, Rolling Meadows (Wayne B. Giampietro, Shannon B. Rigby, of counsel), for Appellees.Presiding Justice QUINN delivered the opinion of the court:
[347 Ill.Dec. 451 , 406 Ill.App.3d 485] Petitioner Pace Suburban Bus Service, a division of the Regional Transportation Authority, d/b/a Pace Northwest Division (Pace), appeals from a decision and order of the Illinois Labor Relations Board, State Panel (Board), finding that Pace violated section 10(a)(1) of the Illinois Public Labor Relations Act (Act) (5 ILCS 315/10(a)(1) (West 2008)) by discharging respondent, Urszula Panikowski, in retaliation for filing a grievance for reinstatement in 1999. On appeal, Pace contends that this court should reverse the Board because: (1) Panikowski failed to prove that her discharge was motivated by antiunion animus; (2) the Board's order was based solely on a finding that Pace offered “shifting explanations” for discharging Panikowski, which alone is not sufficient to establish that it had an improper motive for discharging Panikowski; (3) the Board erred in refusing to consider Pace's argument that it had a legitimate business reason for discharging Panikowski; and (4) the Board improperly relied on evidence of conduct that occurred outside of the Act's six-month statute of limitations. For the reasons set forth below, we affirm the decision and order of the Board.
Urszula Panikowski began working for Pace as a bus operator in 1992. During
[347 Ill.Dec. 452 , 942 N.E.2d 655]
her employment she was a member of the Amalgamated Trust Union (Union), the exclusive representative of a bargaining unit at Pace that includes bus operators. Pace discharged Panikowski in February 2005 on grounds that she violated Pace's rules during a confrontation with a bus passenger and for her “entire work record.” On June 21, 2005, Panikowski filed an unfair labor practice charge against Pace alleging that she had been discharged in retaliation for filing a grievance after she had been discharged in 1999. The matter was heard by an administrative law judge (ALJ) on November 14 and 15, 2007, and March 20, 2008. Based on testimony and exhibits presented at the hearing, the ALJ issued a recommended decision and order finding that Pace violated section 10(a)(1) of the Act because it discharged Panikowski in 2005 in retaliation for her filing a grievance in 1999 that resulted in her reinstatement and an award of back pay.
In his recommended decision and order, the ALJ reviewed Panikowski's employment history with Pace, which included numerous customer complaints and disciplinary actions. First, in 1996, Pace suspended Panikowski after she was involved in a verbal altercation with a bus passenger, who alleged that in response to her question about when the bus was scheduled to depart, Panikowski told her to “shut up” and said “I put up with this shit eleven hours a day.” Rather than terminating her employment, Pace permitted Panikowski to sign a last-chance agreement pursuant to which she was given a suspension and four months probation and allowed to return to work on a last chance basis.
By 1999, Panikowski had accrued 35 complaints, 22 involving discourtesy or improper passenger service, and in October of that year, Pace terminated her employment based on charges that she had been involved in another verbal altercation with a passenger, had failed to report an incident involving high school students, and had caused damage to a bus and failed to report it. The union filed a grievance on Panikowski's behalf alleging that Pace did not have sufficient cause to terminate her employment, and in September 2001, an arbitrator ordered Pace to reinstate Panikowski with back pay. The arbitrator, who focused primarily on the charge regarding damage to the bus, concluded that although there was just cause for discipline, Pace failed to establish sufficient cause for discharge and failed to establish that Panikowski in fact caused the damage to the bus. The arbitrator suggested that another bus operator, Gina Barsano, might have been responsible for the damage, stating “I am reluctant to conclude, and I do not conclude that [Gina] Barsano caused the damage to the bus although one might be inclined to say that such a conclusion derives inevitably from these observations.” Gina Barsano's brother, James Barsano, was, at that time, one of Panikowski's supervisors and conducted a “field investigation” of the bus accident that led to Panikowski's discharge. When Panikowski was discharged in 2005, Barsano, as well as other members of Pace management who were involved in the 1999 discharge, were still Panikowski's supervisors, including Michael Strauss, Stan Pataluch, Pace regional manager Brett Burkhardt, and Pace Superintendent Richard Foster. Panikowski contends that the arbitrator's award of back pay remained an issue between her and Pace, directly involving Superintendent Foster, until at least December 2004, because the parties disagreed about the amount owed.
Following her reinstatement, Panikowski was involved in several incidents between 2001 and 2005, four of which Pace cites as grounds for her 2005 discharge. Three of those incidents are related to a
[347 Ill.Dec. 453 , 942 N.E.2d 656]
July 6, 2004, motor vehicle accident at Golf Mill Shopping Center in Glenview, Illinois. According to Panikowski, the driver of a pickup truck who was attempting to change lanes drove into the mirror on the left-hand side of the bus. Pace subsequently investigated the accident and determined that it was “preventable.” Panikowski appealed that finding to an accident review board, which upheld Pace's finding.
After the accident, Panikowski had an interaction with Glenview police officer Stacey Carver, who responded to the accident scene. According to Panikowski, Carver approached the bus and asked for her identification and insurance card. Panikowski said that she gave Carver her identification but told her that because Pace is self-insured, she does not have an insurance card. Panikowski also testified that she told Carver that there was a witness to the accident, but Carver responded that she did not care. Carver, however, gave a different version of events, testifying that she told a Pace supervisor at the scene that Panikowski was rude, uncooperative, and argumentative. The next day, Carver spoke on the phone with Pace supervisor James Barsano. There is a dispute as to who initiated this call, with Carver testifying that Barsano called her and asked her to submit a complaint letter to Pace regarding Panikowski's conduct and Barsano testifying that Carver called him. Carver did send a letter to Pace stating that Panikowski repeatedly ignored her requests for her driver's license and registration and her requests to move the bus. According to Carver's letter, Panikowski also interrupted Carver's questioning, was argumentative, “exemplified little respect,” and engaged in “verbal abuse.”
After Panikowski left the accident scene, a Pace supervisor told her to drive to the Cumberland Circle station and wait for a replacement bus. Some time later, part-time bus operator Steve Wessel arrived with a bus. According to Panikowski, she asked Wessel why he took so long and he replied that there had been no buses available. However, shortly afterwards, Wessel submitted an incident report stating that when he arrived with the bus, Panikowski asked him “what took you so long,” and “why did you bring me this piece of shit bus” and kept saying,
Pace subsequently disciplined Panikowski by suspending her and requiring her to attend retraining sessions. According to Pace, Panikowski was removed “from service pending investigation regarding verbal altercation[s] with Glenview police officer [Carver] and operator Steve Wessel.” Panikowski testified at the hearing, however, that she believed she was being suspended for the accident and for a verbal altercation with Wessel and was not aware that she was charged with misconduct involving Officer Carver.
The fourth incident cited by Pace as grounds for discharging Panikowski involved bus passenger George Wang, who was a regular rider on Pace's Cumberland Circle route. Three bus operators testified at the hearing regarding their interactions with Wang, stating that Wang was unfriendly and repeatedly made comments about their driving and about the bus leaving the station on time. They also testified that because Wang could take any one of three buses that left the station at around the same time, Wang would stand in the front doorway of a bus and if another bus left first, he would jump off to board that bus. Panikowski also testified that Wang was a difficult passenger who complained about the bus leaving late, and she said that in January 2005, she talked to Pace supervisors Foster and Barsano to
[347 Ill.Dec. 454 , 942 N.E.2d 657]
ask for help in dealing with him and was told to “do your best” and to “avoid him.” She also testified that neither Pace nor the union acted on her requests to have a supervisor ride that route on her bus. Shortly afterwards, on January 20, 2005, a bus passenger who did not identify himself, but who was later determined to be Wang, called Pace to complain that Panikowski had left...
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