Moehring v. Illinois Labor Relations Board, State Panel , 989 N.E.2d 1131 ( 2013 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Moehring v. Illinois Labor Relations Board, State Panel, 2013 IL App (2d) 120342Appellate Court ANN MOEHRING, Petitioner, v. THE ILLINOIS LABOR RELATIONS
Caption BOARD, STATE PANEL, and THE CHIEF JUDGE OF THE
SIXTEENTH JUDICIAL CIRCUIT, Respondents.
District & No. Second District
Docket No. 2-12-0342
Filed April 18, 2013
Held In an action arising from petitioner’s unfair labor practice complaint
(Note: This syllabus alleging that she was terminated from her position as a probation officer
constitutes no part of because of her union activities, the Illinois Labor Relations Board, State
the opinion of the court Panel, properly dismissed petitioner’s complaint based on its
but has been prepared determination that the criteria for deferral to the arbitrator’s decision in
by the Reporter of a grievance arbitration hearing finding that petitioner was terminated for
Decisions for the just cause were satisfied, since the arbitrator considered and made
convenience of the findings on the issue of antiunion animus, and the arbitration proceedings
reader.)
were not “clearly repugnant to the purposes and policies” of the Illinois
Public Labor Relations Act.
Decision Under Petition for review of order of Illinois Labor Relations Board, State Panel,
Review No. S-CA-10-241.
Judgment Affirmed.
Counsel on Steven T. Mann, of Law Office of Steven T. Mann, of Warrenville, for
Appeal petitioner.
Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
Solicitor General, and John P. Schmidt, Assistant Attorney General, of
counsel), for respondents.
Panel JUSTICE ZENOFF delivered the judgment of the court, with opinion.
Presiding Justice Burke and Justice Jorgensen concurred in the judgment
and opinion.
OPINION
¶1 This appeal involves the direct review, pursuant to section 11(e) of the Illinois Public
Labor Relations Act (Act) (5 ILCS 315/11(e) (West 2010)) and Illinois Supreme Court Rule
335 (eff. Feb. 1, 1994), of a decision by the Illinois Labor Relations Board, State Panel
(Board), to dismiss an unfair labor practice complaint brought by petitioner, Ann Moehring,
against her former employer, the Chief Judge of the Sixteenth Judicial Circuit (Chief Judge).
While her unfair labor practice complaint was pending before the Board, Moehring
participated, pursuant to the terms of a collective bargaining agreement, in a grievance
arbitration hearing at which the central issue was whether the Chief Judge had just cause to
terminate Moehring’s employment as a Kendall County probation officer. The arbitrator
ruled in the Chief Judge’s favor. Subsequently, the Board dismissed Moehring’s unfair labor
practice complaint, having determined that the criteria for deferral to the arbitrator’s decision
were met. On appeal, Moehring contends that, because the arbitrator was not presented with
the issues raised in her unfair labor practice complaint, the Board’s decision to defer to the
arbitration award was improper. For the following reasons, we affirm.
¶2 BACKGROUND
¶3 Moehring was employed as a Kendall County probation officer from August 2003 until
October 5, 2009, when her employment was terminated. During the period of Moehring’s
employment, all Kendall County probation officers were covered under a collective
bargaining agreement between the Chief Judge and the General Chauffeurs, Salesdrivers, and
Helpers, Local Union No. 330 (union), which was the exclusive representative of a collective
bargaining unit consisting of the Kendall County probation officers and other court services
employees. In May 2007, Moehring became a member of the union, and, thereafter, she
participated in union activities. According to her unfair labor practice charge, which
Moehring filed with the Board on March 31, 2010, Moehring became the “unofficial office
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union steward” by, among other things, passing out union membership cards, being the
office’s union point of contact, serving on the union’s “Quality of Work Life Committee,”
and participating in union elections and negotiations. She further alleged that, after she
became involved with the union, her supervisors began treating her differently from other
employees and increased her workload to an unmanageable level. Moehring contended that
her supervisors “unjustly disciplined” her and, ultimately, used the discipline to justify
terminating her employment. The charge included a multipage list of events and observations
that purportedly revealed the supervisors’ antiunion animus.
¶4 On November 23, 2010, after conducting an investigation of Moehring’s unfair labor
practice charge pursuant to section 11(a) of the Act (5 ILCS 315/11(a) (West 2010)), the
Board’s executive director issued a complaint against the Chief Judge. The complaint alleged
that Moehring had engaged in the following protected union activities: (1) between 2007 and
2009, Moehring had served as a union steward; (2) in late 2008, Moehring had acted as the
union’s observer during a representative election; (3) Moehring had participated in
negotiations for a successor collective bargaining agreement; and (4) Moehring had filed
numerous grievances on behalf of unit members and herself. The complaint further alleged
that, in retaliation for Moehring’s protected union activities, and in an effort to discourage
union membership, the Chief Judge had terminated Moehring’s employment, in violation of
sections 10(a)(1) and 10(a)(2) of the Act (5 ILCS 315/10(a)(1), (a)(2) (West 2010)).
¶5 The Board’s executive director assigned Moehring’s unfair labor practice complaint to
an administrative law judge (ALJ) for hearing. On June 24, 2011, before the ALJ had
conducted a hearing, the Chief Judge filed a motion to dismiss the complaint on the basis that
deferral to the grievance arbitration award, which the arbitrator had issued on June 13, 2011,
was appropriate. The motion alleged that, pursuant to the terms of the collective bargaining
agreement, the union, on Moehring’s behalf, and the Chief Judge had participated in a three-
day grievance arbitration hearing. At issue during the arbitration hearing was whether there
was just cause for Moehring’s termination, as well as for earlier two-day and five-day
suspensions,1 as article XII of the collective bargaining agreement required.2 The Chief Judge
contended that at the hearing Moehring had presented evidence of her union activities and
had argued, in part, that her supervisors’ antiunion animus had motivated their decisions to
discipline and, ultimately, to terminate her. Furthermore, the Chief Judge pointed out, in
addition to concluding in the 32-page arbitration award that there was just cause for
Moehring’s suspensions and termination, the arbitrator found as follows:
“I have carefully reviewed the evidence in this case and while it does appear that
[Moehring] was involved in various [u]nion activities, there is no substantial and
1
The details of the events leading to the suspensions and discharge are not relevant to the
issue of whether postarbitration deferral was appropriate; therefore, we will not discuss them. We
will discuss the testimony presented at the arbitration hearing only to the extent that it is pertinent
to our analysis.
2
Article XII of the agreement provided, in pertinent part, “The [e]mployer shall not discharge
or suspend any employee except for just cause.”
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reasonable correlation between her [u]nion activities and the disciplines imposed upon
her. I cannot find that there is any nexus between [Moehring’s] [u]nion activities and the
disciplines imposed.”
Because the arbitration award addressed Moehring’s allegations that antiunion animus
motivated her termination, the Chief Judge argued, the Board should defer to the arbitration
award and dismiss Moehring’s unfair labor practice complaint.
¶6 After additional briefing, on August 31, 2011, the ALJ issued a recommended decision
and order in which she concluded that deferral to the arbitration award was appropriate. The
ALJ stated that the Board follows the “Spielberg standard” (Spielberg Manufacturing Co.,
112 N.L.R.B. 1080 (1955)) to resolve the issue of postarbitration deferral. Under that
standard, it is proper for the Board to defer to an arbitration award where (1) the unfair labor
practice issues have been presented to and considered by the arbitrator; (2) the arbitration
proceedings appear to have been fair and regular; (3) all parties to the arbitration agreed to
be bound by the award; and (4) the arbitration is not clearly repugnant to the purposes and
policies of the Act. The ALJ concluded that all four Spielberg factors had been met. On that
basis, the ALJ recommended that the Board dismiss Moehring’s unfair labor practice
complaint.
¶7 Pursuant to section 1200.135(b) of the Board’s rules (80 Ill. Adm. Code 1200.135(b)
(2003)), Moehring filed exceptions to the ALJ’s recommended decision and order. On
February 22, 2012, the Board issued its written decision and order, in which it accepted the
ALJ’s recommendation and deferred to the arbitration award, dismissing Moehring’s unfair
labor practice complaint. The Board rejected Moehring’s argument that the record of the
arbitration proceedings “did not support the arbitrator’s framing of the issues, findings[,] and
conclusion,” reasoning that Moehring’s argument would have required the Board to look
beyond the four Spielberg factors. The Board stated, “In determining whether Spielberg
deferral is appropriate, we do not examine the arbitration record to determine if it supports
the arbitrator’s findings.” Here, the Board reasoned, the arbitrator “clearly did address the
unfair labor practice issue, and the transcript reveals that [Moehring’s] representative had
indeed raised the issue before the arbitrator in its opening argument.” The Board further
noted, “Whether [Moehring] had at the arbitration hearing presented all the evidence [she]
could muster in support of [her] argument is of no moment.” Moehring timely filed a petition
for administrative review by this court.
¶8 ANALYSIS
¶9 Moehring contends that it was improper for the Board to defer to the arbitrator’s decision
and to dismiss her unfair labor practice complaint. Moehring’s primary argument is that
deferral was improper because she did not raise the issue of antiunion animus before the
arbitrator or present evidence in support of her position on that issue. She also contends that
any finding by the arbitrator on the issue of antiunion animus was unsupported by the record
of the arbitration proceedings. The Chief Judge contends that Moehring did raise the issue
of antiunion animus during the arbitration hearing and that, regardless of whether Moehring
was successful in presenting sufficient evidence to support her position, the arbitrator
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considered and ruled on the issue. The Chief Judge contends that deferral was proper under
these circumstances.
¶ 10 Sections 10(a)(1) and 10(a)(2) of the Act provide, in pertinent part, that it is an unfair
labor practice for an employer or its agents “to interfere with, restrain or coerce public
employees in the exercise of the rights guaranteed in this Act” (5 ILCS 315/10(a)(1) (West
2010)) or “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” (5 ILCS 315/10(a)(2) (West 2010)). An employee who files an unfair
labor practice charge against an employer for discharge based upon the employee’s protected
union activity must show by a preponderance of the evidence that the discharge was
motivated by the employer’s antiunion animus. North Shore Sanitary District v. Illinois State
Labor Relations Board, 262 Ill. App. 3d 279, 287 (1994). Once the employee meets this
burden, the burden then shifts to the employer to show that the discharge was based on bona
fide, nonpretextual, legitimate business reasons. North Shore, 262 Ill. App. 3d at 287. Where
the employer is able to establish that its discharge decision was based in part on legitimate
business reasons, in order to prevail the employer must demonstrate by a preponderance of
the evidence that it would have discharged the employee despite the employee’s union
involvement. North Shore, 262 Ill. App. 3d at 287. Here, rather than address these issues at
a hearing on Moehring’s unfair labor practice complaint, the Board deferred to the
arbitrator’s decision in accordance with section 11(i) of the Act. See 5 ILCS 315/11(i) (West
2010) (permitting the Board to resolve an unfair labor practice charge by deferring to a
grievance arbitration award).
¶ 11 Neither party disputes that the Board had the authority under the Act to defer to the
arbitration award; however, the parties dispute whether it was proper for the Board to do so.
Both parties agree that the “Spielberg standard” governs this issue. As the ALJ stated in her
recommended decision and order, under the Spielberg standard it is proper for the Board to
defer to an arbitration award where (1) the unfair labor practice issues have been presented
to and considered by the arbitrator; (2) the arbitration proceedings appear to have been fair
and regular; (3) all parties to the arbitration agreed to be bound by the award; and (4) the
arbitration is not clearly repugnant to the purposes and policies of the Act. Alton Firefighters
Ass’n, IAFF Local 1255, 22 PERI ¶ 102 (ILRB State Panel 2006) (citing Spielberg, 112
N.L.R.B. 1080); Brown, 16 PERI ¶ 3010 (ILRB Local Panel 1999)). Moehring raises no
argument concerning either the second or the third Spielberg factor. Thus, we will limit our
discussion to whether the first and fourth Spielberg factors were met.
¶ 12 Both Moehring and the Chief Judge agree that the question of whether it was proper for
the Board to defer to the arbitrator’s decision presents a mixed question of fact and law and
that we should apply the “clearly erroneous” standard of review. “Mixed questions of fact
and law are ‘questions in which the historical facts are admitted or established, the rule of
law is undisputed, and the issue is whether the facts satisfy the statutory standard, or to put
it another way, whether the rule of law as applied to the established facts is or is not
violated.’ ” American Federation of State, County & Municipal Employees, Council 31 v.
Illinois State Labor Relations Board, State Panel, 216 Ill. 2d 569, 577 (2005) (quoting
Pullman-Standard v. Swint, 456 U.S. 273, 289 n.19 (1982)). A reviewing court will reverse
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an agency’s decision on a mixed question of fact and law only when the decision is clearly
erroneous, which is “when the reviewing court is left with the definite and firm conviction
that a mistake has been committed.” American Federation, 216 Ill. 2d at 577-78.3
¶ 13 Moehring argues that the Board erred in determining that the first Spielberg factor was
met, because no unfair labor practice issue was presented to the arbitrator. She points out
that, in the union’s posthearing brief submitted to the arbitrator, it listed the issues to be
decided as follows: (1) “Was [Moehring] disciplined for just cause?”; (2) “If so, was
termination the appropriate progressive discipline?”; and (3) “If not, what is the appropriate
remedy?” Moehring also cites the arbitrator’s written decision, which listed the issue as, “Did
the [e]mployer have just cause to issue a 2-day [s]uspension, a 5-day [s]uspension[,] and a
[d]ischarge to [Moehring]?” She also points out that at no point during its arguments before
the arbitrator did the union reference any unfair labor practice or any provision of the Act,
including section 10(a)(1) or 10(a)(2).
¶ 14 The Chief Judge maintains that the first Spielberg factor was met. The Chief Judge
references the arbitrator’s finding that “there [was] no substantial and reasonable correlation
between [Moehring’s] [u]nion activities and the disciplines imposed upon her.” The Chief
Judge also cites the union’s opening statement made at the arbitration hearing, in which the
union stated:
“[Moehring] was an outspoken participant on the [u]nion bargaining team for the
current agreement signed in August of 2009, which included discussions over excessive
workloads.
She also circulated membership cards among the fair share[4] participants to change
their status and was on various [u]nion committees. Management commented that she
could get more done if she was not so [u]nion involved and kept track of her attendance
at [u]nion negotiations because they took her away from work.
It is against this backdrop that the instances of conduct culminating in discharge are
reviewed ***.”
The Chief Judge contends that the union’s opening statement invited the arbitrator to address
the issue of antiunion animus. The Chief Judge also quotes the following paragraph from the
3
We note, however, that the case law is less than clear on which standard of review applies
to the question of whether postarbitration deferral is appropriate. In this court’s only published
opinion addressing the issue of postarbitration deferral, we applied the abuse-of-discretion standard,
although we did so without any analysis or explanation of the applicable standard. See North Shore,
262 Ill. App. 3d at 296 (holding that the Board’s refusal to defer to arbitration awards “did not
constitute an abuse of discretion”). While we apply the “clearly erroneous” standard in the present
case, we nevertheless note that we would reach the same result were we to apply the abuse-of-
discretion standard.
4
According to the collective bargaining agreement, a “fair share” employee is a nonunion
member who is covered by the agreement and who, in lieu of paying union dues, shares in the costs
of the collective bargaining process, contract administration, and the pursuit of matters affecting the
wages, hours, and conditions of employment.
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union’s posthearing brief submitted to the arbitrator:
“[Moehring] joined the [u]nion on March 23, 2007. Prior to then, aside from one
officer, everyone in the office was fair share. She became the unofficial office union
steward by (1) passing out union membership cards; (2) passing out dues receipts and
literature; (3) being the union point of contact in the office; (4) answering co-workers’
union questions; (5) being elected to the Quality of Work Life Committee ***; (6)
becoming the negotiation representative (Fall of 2008); (7) typing meeting minutes of
negotiation sessions and distributing them to bargaining unit members; (8) creating,
typing[,] and editing a [u]nion newsletter; (9) representing the [c]ircuit at federal
mediation (Spring of 2009). Management informed her they were not happy with the
time spent out of the office for [u]nion negotiations, surveilling her [u]nion activity and
keeping track of her time.”
The Chief Judge contends that the purpose underlying this detailed description of Moehring’s
union activity must have been to suggest to the arbitrator that there was a retaliatory motive
behind her discharge.
¶ 15 In support of her argument that the first Spielberg factor was not met, Moehring cites
Alton Firefighters, Brown, and North Shore. In Alton Firefighters, the Board determined that
its executive director had properly dismissed an unfair labor practice charge filed by a union
on behalf of two firefighters, because the factors for postarbitration deferral under Spielberg
had been met. Regarding the first Spielberg factor, the union in Alton Firefighters argued that
deferral was improper, because the arbitrators’ awards did not include factual findings or
analyze the employees’ rights under the Act. In rejecting the union’s argument, the Board
noted that, while deferral generally is improper where an arbitrator has not made factual
findings with regard to the crucial allegations of an unfair labor practice charge, “so long as
the issues were presented to the arbitrator, deferral is appropriate even though the award does
not explicitly resolve those issues.” The Board in Alton Firefighters further reasoned that the
transcripts from the arbitration proceedings reflected that the union had referenced the
employer’s purported antiunion animus, as well as the relatedness of the two employees’
arbitrations (which were conducted separately), all of which permitted the arbitrator to
consider whether the two firefighters’ discharges demonstrated antiunion animus. Alton
Firefighters, 22 PERI ¶ 102.
¶ 16 In Brown, the Illinois Local Labor Relations Board (Local Board) rejected a
recommended decision and order that would have ruled that postarbitration deferral under
Spielberg was proper. Relying on the first Spielberg factor, the Local Board remanded the
charge to its executive director for further investigation, reasoning that there was “no
dispute” that the arbitration award had not directly addressed or resolved the charging party’s
contention that the actions taken against her were in retaliation for her protected union
activities. The Local Board also noted that it was unable to determine whether or to what
extent facts relating to the alleged retaliation had been submitted to the arbitrator, as the
parties had not provided it with a transcript of the arbitration proceedings. Brown, 16 PERI
¶ 3010.
¶ 17 In North Shore, we affirmed a decision by the Board to deny postarbitration deferral. The
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union in North Shore, which represented several discharged employees, filed unfair labor
practice charges with the Board, alleging that the discharges were motivated by antiunion
animus. North Shore, 262 Ill. App. 3d at 285. The union also filed grievances on behalf of
several of the employees, and an arbitrator, in individual arbitration hearings, determined that
each of the employees had been discharged for just cause. North Shore, 262 Ill. App. 3d at
285. The Board refused to defer to the arbitration awards and, ultimately, determined that the
employer had engaged in unfair labor practices by discharging the employees in retaliation
for their protected union activities. North Shore, 262 Ill. App. 3d at 286, 295-96. On appeal
from the Board’s decision, the employer argued, in part, that the Board erred in refusing to
defer to the arbitration awards. North Shore, 262 Ill. App. 3d at 295-96. We rejected the
employer’s argument, noting that deferral is improper where an arbitrator’s decision has not
made a factual finding with regard to a crucial allegation of an unfair labor practice charge.
North Shore, 262 Ill. App. 3d at 296. We reasoned that the issue of antiunion animus was
never raised in the individual arbitration hearings, each of which was “limited solely to the
contract question of whether the [employer] had just cause to discharge the employee based
upon a particular isolated set of facts.” North Shore, 262 Ill. App. 3d at 296. We further
reasoned, “None of the arbitral decisions addressed or considered the pattern of retaliation
which was the subject of the unfair labor charges before the Board.” North Shore, 262 Ill.
App. 3d at 296.
¶ 18 Although Moehring purports to cite Alton Firefighters in support of her argument that
the first Spielberg factor was not met, Alton Firefighters clearly supports the opposite
conclusion. Here, as in Alton Firefighters, the transcript of the arbitration hearing reveals that
the union referenced the issue of antiunion animus before the arbitrator. As the portions of
the record cited by the Chief Judge reveal, the union referenced the issue in its opening
statement and in its posthearing brief submitted to the arbitrator. The union discussed
Moehring’s union activities and described how Moehring’s supervisors kept track of her
attendance at union meetings and recommended that she limit her involvement with the
union in order to remedy her backlog of work. The union stated, “It is against this backdrop
that the instances of conduct culminating in discharge are reviewed,” which can be
interpreted only as an argument that antiunion animus motivated Moehring’s discharge.
¶ 19 Furthermore, the arbitration hearing transcripts contain a significant amount of testimony
by Moehring describing her union activities and her supervisors’ purported scrutinizing of
her activities. This consideration further supports following Alton Firefighters and renders
Brown distinguishable, because, in Brown, the Board was unable to determine whether
evidence of antiunion animus had been presented to the arbitrator, since neither party
supplied it with a transcript of the arbitration hearing. Here, during the union attorney’s direct
examination of Moehring at the arbitration hearing, the following exchange occurred:
“Q. *** Now, had it ever been suggested to you in the past that you curtail your
[u]nion committee activities in order to address your workload?
A. Yes, it had.
Q. Okay. Tell me when and on what occasions?
A. Well, I can think of 2 off the top of my head. There was a discussion that
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executive director Jim Mueller had in front of my business rep [sic] Nick Moisa and in
front of director Tina Varney ***. And basically he had said he knew I was behind on
my workload and he made a comment about there had been discussion about no more,
I was not allowed to attend anymore [sic] committee meetings until the workload was
caught up. And I said does that include negotiations which, was either like the next day
or 2 [sic], it was that same week. And he said I wouldn’t if I were you. And then there
was another–there was a memo that Emily [Kwak, a supervisor,] sent me that said–
Q. Okay. Before we get to that. Did you attend those [u]nion meetings anyway?
A. Yes, I did.
Q. And you didn’t receive any kind of discipline as a result of that?
A. Not–no.
Q. *** You started to saying [sic] something about a memorandum?
A. There was a memo that Emily sent that said I should not attend any future
committee involvement [sic] until I caught up with my backlog.”
Later, during the union attorney’s redirect examination of Moehring, another union-related
exchange took place:
“Q. *** [D]id you learn that management actually kept track of the time you spent
in [u]nion negotiations or in committee meetings?
A. Yes, I did.
Q. Okay. And how did you learn that?
A. It was in my personnel file. After I had been filed [sic], I received a copy of
everything that Tina [Varney] had been documenting about me and there was a typed up
form that Tina had completed.
Q. All right. And do you know what period of time span [sic] was covered by that
form?
A. It looks like all of–I’d have to look at it again but it looked like from the start of
my involvement with the [u]nion.”
Also during the arbitration hearing, Moehring testified to the increased scrutiny she felt that
she received from supervisors. For example, during cross-examination by the Chief Judge’s
attorney, Moehring testified that “the scrutinization” she was referring to was “the 5,273
pages in [her] personnel file in which [Varney] was watching [her] and having other
supervisors watch [her] on work time and off work time.” Moehring testified that another
example of the increased scrutiny was Varney’s requirement that Moehring file a grievance
any time she wanted any problem resolved. Moehring testified, “Other staff could go to [sic]
and ask a question and get an answer, get a swift answer. When I asked a question they
would say if you want it resolved, put in a grievance.” Moehring’s testimony clearly supports
the conclusion that at the arbitration hearing the union and Moehring presented evidence that
was relevant to the issue of antiunion animus.
¶ 20 Both Alton Firefighters and Brown are distinguishable for another reason as well. Not
only did the union and Moehring reference the issue of antiunion animus before the
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arbitrator, and present evidence relevant to that issue, but the arbitrator also made factual
findings and ruled on the issue, unlike the arbitrators in Alton Firefighters and Brown. As
stated above, the arbitrator in this case found as follows:
“I have carefully reviewed the evidence in this case and while it does appear that
[Moehring] was involved in various [u]nion activities, there is no substantial and
reasonable correlation between her [u]nion activities and the disciplines imposed upon
her. I cannot find that there is any nexus between [Moehring’s] [u]nion activities and the
disciplines imposed.”
While Moehring contends that the arbitrator’s finding was not supported by the record of the
arbitration proceedings, she cites no case or Board decision, and we have found none, that
holds that a court applying the Spielberg standard should look to whether an arbitrator’s
decision was supported by the evidence. Rather, the case law and Board decisions applying
the Spielberg factors hold that we are to look only to whether “the issues were presented to
the arbitrator” (Alton Firefighters, 22 PERI ¶ 102) and to whether the arbitrator made “a
factual finding with regard to a crucial allegation” of the unfair labor practice complaint
(North Shore, 262 Ill. App. 3d at 296; Alton Firefighters, 22 PERI ¶ 102; Brown, 16 PERI
¶ 3010). Here, the crucial allegation of the unfair labor practice complaint was that
Moehring’s employer discharged her in retaliation for her participation in protected union
activities. The arbitrator made a factual finding with regard to this allegation when he
determined that there was no nexus between Moehring’s union activities and her discharge.
We also reject Moehring’s argument that the arbitrator’s framing of the issue as whether
there was just cause for Moehring’s termination should require us to overlook that the
arbitrator nevertheless did address the issue of antiunion animus.
¶ 21 Moehring nevertheless argues that, as in North Shore, we cannot say that the arbitrator’s
decision addressed a crucial allegation of her unfair labor practice complaint, because the
focus of the arbitration hearing was on whether there was just cause for Moehring’s
suspensions and discharge. Moehring contends that the arbitrator was unable to consider her
employer’s “pattern of retaliation” (North Shore, 262 Ill. App. 3d at 296), which was the
subject of her unfair labor practice charge before the Board. However, North Shore, in which
the unfair labor practice charges involved numerous employees, all of whom were discharged
within a short period of time following a period of intense union negotiations (North Shore,
262 Ill. App. 3d at 289), is distinguishable. Here, Moehring’s unfair labor practice complaint
did not allege that any other employees were discharged in retaliation for participating in
protected union activities. Thus, unlike in North Shore, where the purported pattern of
retaliation against several employees could not have been (and was not) addressed in
individual grievance arbitration hearings, any pattern of discrimination against Moehring
individually could have been (and, as discussed above, was) addressed in Moehring’s
arbitration hearing.
¶ 22 Moehring also contends that deferral was improper because the arbitrator’s factual
findings did not address all of the allegations contained in her unfair labor practice charge,
which, as stated above, contained a multipage list of events and observations that purportedly
revealed her employer’s antiunion animus. However, as the Chief Judge points out, we need
not consider whether the arbitrator’s factual findings resolved the allegations contained in
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Moehring’s unfair labor practice charge but only whether they resolved the allegations
contained in the unfair labor practice complaint issued by the Board’s executive director
following his investigation into Moehring’s charge pursuant to section 11(a) of the Act. The
unfair labor practice complaint represented those allegations that the Board’s executive
director found “involve[d] a dispositive issue of law or fact.” 5 ILCS 315/11(a) (West 2010).
The crucial allegation of the unfair labor practice complaint was that Moehring’s employer
discharged her in retaliation for participating in protected union activities. The arbitrator’s
factual findings did address this allegation.
¶ 23 Moehring nevertheless contends that, at a hearing on her unfair labor practice complaint,
she could have presented evidence related to the allegations contained in her unfair labor
practice charge in order to “shed light on” the issues raised in the complaint. While this may
be true, it does not alter the fact that the ultimate issue at a hearing on her unfair labor
practice complaint would have been whether her termination was in retaliation for her
protected union activities. The arbitrator’s factual findings directly addressed this ultimate
issue.
¶ 24 Moehring also asserts, for the first time in her reply brief, that the Chief Judge’s motion
to defer to the arbitration award was untimely under section 1220.65 of the Board’s rules (80
Ill. Adm. Code 1220.65 (2003)), because it was filed more than 25 days after the Board’s
executive director issued the unfair labor practice complaint. Moehring has forfeited this
argument, because she did not raise it before the Board and did not raise it in her opening
brief. See Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2008) (“Points not argued are waived and shall
not be raised in the reply brief, in oral argument, or on petition for rehearing.”). We also note
that the Chief Judge filed the motion to defer less than two weeks after the arbitrator issued
the written award.
¶ 25 In sum, after reviewing the record of the arbitration proceedings, we conclude that the
Board’s determination that the first Spielberg factor was met was not clearly erroneous. The
record of the arbitration proceedings reveals that not only did the union and Moehring
reference the issue of antiunion animus before the arbitrator, and present evidence relevant
to that issue, but the arbitrator considered the issue and made factual findings with regard to
it.
¶ 26 Moehring also asserts that the Board erred in determining that the fourth Spielberg factor
was met. The fourth factor is whether the arbitration was “clearly repugnant to the purposes
and policies of the Act.” Alton Firefighters, 22 PERI ¶ 102. The sole argument Moehring
offers in support of her position is that “[c]learly an arbitration award with no basis in fact
is at odds with the Act.” Moehring again cites Alton Firefighters and Brown; however, as
discussed above, those cases do not stand for the proposition that a court applying the
Spielberg standard is required to determine whether an arbitrator’s decision is supported by
the record.5 Rather, we are to look only to whether “the issues were presented to the
5
This is consistent with the well-established rule of limited judicial review of an arbitrator’s
decision and our very limited ability to modify or vacate it, even for mistakes of fact or law. See
Galasso v. KNS Cos., 364 Ill. App. 3d 124, 130-31 (2006); Sloan Electric v. Professional Realty &
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arbitrator” (Alton Firefighters, 22 PERI ¶ 102) and to whether the arbitrator made “a factual
finding with regard to a crucial allegation” of the unfair labor practice complaint (North
Shore, 262 Ill. App. 3d at 296; Alton Firefighters, 22 PERI ¶ 102; Brown, 16 PERI ¶ 3010).
Thus, we must reject Moehring’s argument that the arbitration was “clearly repugnant to the
purposes and policies of the Act” on this basis.
¶ 27 We conclude that the Board’s determination that the fourth Spielberg factor was met was
not clearly erroneous. Notably, article V of the collective bargaining agreement between the
union and the Chief Judge provided:
“Neither the [e]mployer nor the [u]nion shall interfere with the right of employees
covered by this [a]greement to become or not become members of the [u]nion and there
shall be no discrimination against any such employees because of lawful [u]nion
membership or nonmembership activity or status.”
Article V essentially provided the same protections as sections 10(a)(1) and 10(a)(2) of the
Act, upon which Moehring’s unfair labor practice complaint was based. We also note that
the union cited article V of the collective bargaining agreement in its posthearing brief
submitted to the arbitrator. Thus, while the union may not have cited sections 10(a)(1) and
10(a)(2) of the Act during the arbitration hearing (a point that Moehring emphasizes), the
union did cite the portion of the collective bargaining agreement that paralleled those
sections. In sum, because the collective bargaining agreement provided protections nearly
identical to those the Act provides, and because the arbitrator determined that Moehring’s
discharge was not in retaliation for her protected union activities, the Board’s conclusion that
the arbitration was not “clearly repugnant to the purposes and policies of the Act” was not
clearly erroneous.
¶ 28 CONCLUSION
¶ 29 For the reasons stated, we affirm the decision of the Illinois Labor Relations Board, State
Panel, to defer to the arbitration award and to dismiss Moehring’s unfair labor practice
complaint.
¶ 30 Affirmed.
Development Corp., 353 Ill. App. 3d 614, 621 (2004).
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