Slater v. Ill. Labor Relations Bd.

• Decision Date: 21 October 2019
• Docket Number: No. 1-18-1007,1-18-1007
• Citation: 2019 IL App (1st) 181007,437 Ill.Dec. 506,144 N.E.3d 618
• Parties: Erek SLATER, Petitioner, v. The ILLINOIS LABOR RELATIONS BOARD, LOCAL PANEL and The Chicago Transit Authority, Respondents.
• Court: United States Appellate Court of Illinois

2019 IL App (1st) 181007

144 N.E.3d 618

437 Ill.Dec. 506

Erek SLATER, Petitioner,

v.The ILLINOIS LABOR RELATIONS BOARD, LOCAL PANEL and The Chicago Transit Authority, Respondents.

No. 1-18-1007

Appellate Court of Illinois, First District, FIRST DIVISION.

October 21, 2019

Nicholas Kreitman, of Gainsberg Law, P.C., of Chicago, for petitioner.

Kwame Raoul, Attorney General, of Chicago (David L. Franklin, Solicitor General, and Valerie Quinn, Assistant Attorney General, of counsel), for respondent Illinois Labor Relations Board, Local Panel.

Karen G. Seimetz, Stephen L. Wood, Irina Y. Dmitrieva, and Ashley Phillips Neuhauser, all of Chicago, for other respondent.

JUSTICE PIERCE delivered the judgment of the court, with opinion.

¶ 1 Petitioner Erek Slater appeals from a decision of the Illinois Labor Relations Board, Local Panel (Board), which found that the Chicago Transit Authority (CTA) did not violate the Illinois Public Labor Relations Act (Act) ( 5 ILCS 315/1 et seq. (West 2014)) when the CTA withdrew permission for Amalgamated Transit Union, Local 241 (Union) to use an office on CTA property. For the reasons that follow, we affirm the Board's decision.

¶ 2 I. BACKGROUND

¶ 3 This appeal involves two unfair labor practices charges brought under section 10 of the Act, which provides in relevant part

"(a) It shall be an unfair labor practice for an employer or its agents:

(1) to interfere with, restrain or coerce public employees in the exercise of the rights guaranteed in this Act or to dominate or interfere with the formation, existence or administration of any labor organization or contribute financial or other support to it; provided, an employer shall not be prohibited from permitting employees to confer with him during working hours without loss of time or pay;

(2) 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." Id. § 10(a)(1), (2) (West 2014).

¶ 4 In January 2015, Slater, a bus operator employed by the CTA, was elected as a union representative at the CTA's North Park bus garage. In November 2015, Slater, in his individual capacity only, filed amended unfair labor charges with the Board asserting in relevant part that the CTA "evicted" the Union and him from an office in the North Park garage. Slater alleged that the CTA retaliated against him by removing his access to the office after he had a disagreement with CTA management during a safety meeting, in violation of section 10(a)(1) and (a)(2) of the Act.¹

¶ 5 The Board's executive director issued a complaint for hearing. The complaint asserted that on March 7, 2015, the CTA held a safety meeting at the North Park garage attended by Slater, along with other Union members and CTA general manager Elizabeth Williams. At the conclusion of the meeting, Slater introduced himself as a union representative and began to speak out about safety issues on behalf of the Union and its members. Williams told Slater that he did not have permission to speak and threatened him with insubordination. After the meeting, Williams allegedly contacted Tom Sams, the president of the Union, saying that Slater would be fired if he was not removed from his union duties at the North Park garage. Sams removed Slater from his union duties. Slater was reinstated to his union duties on April 6, 2015. On April 9, 2015, the CTA ordered the Union and Slater to vacate the office space at the North Park garage, which the Union had been using for five months. The Board's complaint for hearing alleged that by ordering Slater to vacate the office, the CTA "has discriminated against public employees in order to discourage membership in or support for the Union, in violation of Sections 10(a)(2) and (1) the Act," and "restrained or coerced public employees in the exercise of rights guaranteed under the Act, in violation of Section 10(a)(1) of the Act." Neither Slater's charge nor the Board's complaint made any allegation that use of the office was a condition of employment, or that the Union demanded that the CTA bargain in good faith any changes to the Union's access to the office.

¶ 6 The CTA answered the Board's complaint and the matter proceeded to a four-day hearing before an administrative law judge (ALJ). After the hearing, the ALJ issued a recommended decision and order. The ALJ found in relevant part that the CTA violated section 10(a)(1) of the Act by evicting the Union from the North Park garage office in retaliation for Slater engaging in protected activity, and that the CTA failed to present a legitimate business reason for such action. The ALJ further found that the CTA violated section 10(a)(2) and (a)(1) of the Act because the CTA removed the Union's access to the office with the specific intent of discouraging union support. The CTA filed an exception with the Board.

¶ 7 On April 17, 2018, the Board issued its written decision and order. The Board rejected the ALJ's finding that the CTA violated sections 10(a)(1) and 10(a)(2), and found that because the Union did not have any proprietary interest in the office, the CTA's decision to deny the Union and Slater continued access to the office was not an adverse employment action. The Board found that the Union had use of the North Park garage office space starting in December 2014. The Union did not have a key to the office; CTA management maintained the office key, and the Union had to ask the CTA for permission to use the office. CTA management would unlock the door for Union representatives, and would lock the door when the Union was done using the office. The Union used the office to speak to membership in private, interview grievants, and to store records in a filing cabinet. The Union did not use the office on a daily basis. The CTA used the office for storage, as well as to conduct selections of bus runs, which occurred approximately six times per year, with each selection lasting several days. In early 2015, a CTA facilities manager asked Gilberto Hernandez, the administrative manager at the North Park garage, for office space closer to his area of responsibility, which included the area in which the North Park garage was located. Shortly after April 6, 2015, Hernandez told Slater that the Union could no longer use the office. The Board concluded that the Union did not have exclusive use of the office, and further found that neither the Union nor Slater had any propriety interest in the office space, as the CTA had never given the Union a designated office. The Board found the Union's use of the office space "was temporary and permission to use it was given at the convenience of CTA management." Therefore, the Board concluded that the "elimination of the Union's use of office space is not an adverse action" that could sustain an unfair labor charge under section 10(a)(1) or (a)(2) of the Act.

¶ 8 Slater filed a timely petition for review in this court from the Board's final decision. 5 ILCS 315/11(e) (West 2016); 735 ILCS 5/3-113(a), (b) (West 2018); Ill. S. Ct. R. 335 (eff. July 1, 2017).

¶ 9 II. ANALYSIS

¶ 10 At the outset, we note that portions of Slater's appellate brief violate Illinois Supreme Court Rule 341 (eff. May 25, 2018). First, Rule 341(h)(2) requires an appellant to include "[a]n introductory paragraph stating (i) the nature of the action and of the judgment appealed from and whether the judgment is based upon the verdict of a jury, and (ii) whether any question is raised on the pleadings and, if so, the nature of the question." The introductory paragraph should not include lengthy recitations of fact and should not contain argument. Here, Slater's "Nature of the Case" section consists of four dense paragraphs spanning nearly three pages, and is argumentative. Both the length and argumentative nature of Slater's introductory paragraph violate Rule 341(h)(2) (see Artisan Design Build, Inc. v. Bilstrom , 397 Ill. App. 3d 317, 321, 337 Ill.Dec. 238, 922 N.E.2d 361 (2009) (finding that a two-page introductory statement containing argument violates Rule 341(h)(2) )), and does not aid this court in understanding or resolving Slater's claims. Second, Slater's statement of facts is replete with argument, in violation of Rule 341(h)(6), which requires a statement of facts to be "stated accurately and fairly without argument or comment." Ill. S. Ct. R. 341(h)(6). Finally, the argument section of Slater's brief routinely asserts factual statements with no citations to the record, or asserts factual statements that are not supported by the citations to the record that he makes, which both constitute violations of Rule 341(h)(7).

¶ 11 Our supreme court's rules governing appellate briefs are mandatory. Hall v. Naper Gold Hospitality, LLC , 2012 IL App (2d) 111151, ¶ 7, 360 Ill.Dec. 885, 969 N.E.2d 930. A party's failure to comply with the rules runs the risk that this court will strike the offending portions of a noncompliant brief, or, in rare cases, dismiss an appeal for serious rule violations.

Collier v. Avis Rent A Car System, Inc. , 248 Ill. App. 3d 1088, 1095, 188 Ill.Dec. 201, 618 N.E.2d 771 (1993). We advise Slater's counsel that rule violations should be avoided in future appellate briefs, and that future violations may result in serious adverse consequences.

¶ 12 On appeal, Slater identifies four issues for review. First, he contends that the Board erred by failing to evaluate his charge under a section 10(a)(1) "reasonable employee" standard after it found that no adverse employment action occurred to satisfy section 10(a)(2) of the Act, and that the Board erred by concluding that the CTA's "eviction" of him and the Union from the office was a not violation of section 10(a)(1) of the Act. Second, he argues that the Board applied a clearly erroneous interpretation of the Act when it determined that no adverse employment action occurred. Third, he argues that the Board's final...