Illinois Labor Relations Board

 

Metropolitan Alliance of Police,

Bensenville Police Chapter #165,

Charging Party

and

Village of Bensenville,

Respondent

 

Docket No. S-CA-00-197

 

18 PERI (LRP) P2076

2003 PERI (LRP) Lexis 1

January 3, 2003, Decided

 

Administrative Law Judgeís Recommended Decision and Order

 

On March 29, 2000, the Metropolitan Alliance of Police, Bensenville Police Chapter #165 (Charging Party) filed an unfair labor practice charge pursuant to Section 11 of the Illinois Public Labor Relations Act, 5 ILCS 315 (2000) (Act) and the Rules and Regulations of the Illinois Labor Relations Board, 80 Ill. Adm. Code, Section 1220 et seq. (Rules), alleging that the Village of Bensenville (Respondent) had violated Sections 10(a)(1), (2) and (4) of the Act. l The charge was investigated in accordance with Section 11 of the Act and, on July 6, 2001, the Executive Director of the Illinois Labor Relations Board (Board) issued a Complaint for Hearing. 2

The hearing was held on October 16, 17 and 18, 2001, in Chicago, Illinois, at which time the Charging Party presented evidence in support of the allegations, and all parties were given an opportunity to participate, to adduce relevant evidence, to examine witnesses, to argue orally and to file written briefs. After full consideration of the partiesí stipulations, evidence, arguments and briefs and upon the entire record of the case, I recommend the following.

 

I. Preliminary Findings

 

  1. The parties stipulated and I find that, at all times material herein, the Respondent has been a public employer within the meaning of Section 3(o) of the Act.

 

  1. The parties stipulated and I find that, at all times material herein, the Respondent has been a unit of local government under the jurisdiction of the State Panel of the Board pursuant to Section 5(a) of the Act.

 

  1. The parties stipulated and I find that, at all times material herein, the Respondent has been a unit of local government subject to the Act, pursuant to Section 20(b) of the Act.

 

  1. The parties stipulated and I find that, at all times material herein, the Charging Party has been a labor organization within the meaning of Section 3(i) of the Act.

 

  1. The parties stipulated and I find that, at all times material herein, the Charging Party has been the exclusive representative of a bargaining unit of the Respondentís peace officers in the rank of patrol officer as certified by the Board on October 4, 1994 in Case No. S-RC-95-5 (Unit). 3

  1. 6. The parties stipulated and I find that, at all times material herein, the Respondent has employed the following individuals as peace officers:††† [ILLEGIBLE TEXT]

 

  1. The parties stipulated and I find that, at all times material herein, Bratko, Neuberg, Ragusin, Ollech and Garris have been public employees within the meaning of Section 3(n) of the Act.

 

  1. The parties stipulated and I find that, at all times material herein, Bratko, Neuberg, Ragusin, Ollech and Garris have been members of the Unit.

 

II. Issues And Contentions

 

The Charging Party contends that after the Respondent discovered in 1999 that members of its police department (Department) had not reported all or part of their income from a private security firm, Bensenville Security Services (BSS), it initiated disciplinary proceedings against five active Charging Party supporters. The Charging Party alleges that the Respondent, in violation of Section 10(a)(2) and (1) of the Act, initiated termination proceedings against the five Unit members in retaliation for their support of the Charging Party and to discourage membership in and support for the Charging Party. According to the Charging Party, the Respondent targeted for termination only the more active union members and bargaining unit members who committed the same offense but were less active were not targeted for termination. The Charging Party also contends that the Respondent, in violation of Section 10(a)(4) of the Act, failed and refused to bargain over a mandatory subject of bargaining when it implemented without bargaining a pre-hire agreement granting a hiring bonus to newly hired police officers.

The Respondent contends that it did not retaliate against active union members, but that after it learned that BSS never issued W-2 forms or 1099s for the officers it employed, it assigned an investigator to look into the matter. Ultimately the Respondentís investigator learned that certain officers had failed to report and pay taxes on their BSS income in violation of tax laws and the Respondentís rules. The investigator recommended that charges be brought before the Respondentís Board of Fire and Police Commissioners (BFPC) against the officers who made the most money from BSS. According to the Respondent, the investigator was unaware of the union activities of the officers he investigated but merely followed the money trail. The Respondent insists that it was not motivated by unlawful animus and that charges would have been brought against the officers regardless of their union activities. With respect to the issue of the pre-hire agreements, the Respondent insists that it had no obligation to bargain over an agreement with applicants who were not employees. The Respondent also contends that the pre-hire agreements do not affect wages, hours or terms and conditions of employment and thus do not constitute a mandatory subject of bargaining.

 

III. Findings of Fact

 

The Village of Bensenville, a non-home rule municipality, is located on the eastern border of DuPage County adjacent to OíHare Airport. It has a Village President and a six-member Board of Trustees, A Village Manager, appointed by the President and confirmed by the Board of Trustees, runs the Respondentís day-to-day operations and ensures that policies are implemented and that codes and ordinances are enforced. 4 The Respondent has 20,000 residents and about 155 full-time employees. The Respondentís departments include police, fire, code enforcement, public works, youth services, finance and administration, community development, and building and zoning. Approximately 120 of the Respondentís 155 full-time employees are covered by collective bargaining agreements. In addition to the Charging Party, the Respondent recognizes three other labor organizations: the American Federation of State, County and Municipal Employees (AFSCME) that represents public works employees, code enforcement officers, building inspectors, and clerical staff; the International Association of Fire Fighters (IAFF) that represents fire fighters and fire lieutenants and, the Policemenís Benevolent Labor Committee that represents a unit of police sergeants.5

Within the Respondentís police department (Department), there are currently 28 full-time patrol officers, between five and ten part-time officers, five or six sergeants, and two Deputy Chiefs, Frank Kosman and Tom Herion, who serve as Chief. The appointed members of the Board of Fire and Police Commissioners (BFPC)6 have responsibility for hiring, promoting and disciplining sworn police officers and firefighters.7 The Department headquarters is in a separate building and a half block away from the Village Hall.

The duties of a police officer of the Respondent include enforcing and upholding the laws of the State of Illinois; complying with and acting in obedience to the laws of the State of Illinois and United States of America; conducting himself with integrity and; acting in the best interests of the citizens and the Respondent in a manner which does not bring the Department into disrepute. In taking the oath of office, each police officer affirms that he or she will support and comply with the Constitution of the United States; the Constitution and laws of the State of Illinois; the laws and ordinances of the Respondent; the Rules and Regulations of the Department and; the Law Enforcement Code of Ethics.8

Bensenville Security Services (BSS)

 

In 1985, various members of the Department formed BSS for the purpose of providing private security services to businesses and local governmental entities such as the park and school districts within the Respondentís boundaries. In July 1985, various members of the Department opened a checking account in the name of BSS at the First National Bank of Elmhurst. From July 1985 through December 1998, Sergeant A9 (as well as other members of the Department) was an authorized signator on the BSS checking account and from 1988 through 1998, Sergeant A was the primary person in charge of BSS. From June 1988 through February 4, 1998, Sergeant A was the Executive Aide and the second-in-command of the Department.

Only police officers in the Department, including new hires, who had completed their probationary period of employment, and auxiliary officers, were allowed to work security details through BSS. No persons who were not officers of the Department were allowed to work BSS security details. When off-duty officers worked security details they wore their Department uniforms and used Department equipment, including Department radios. Sergeant A issued invoices to the businesses and local governmental entities to which BSS provided services and collected fees from those businesses and entities. BSS received checks made payable to BSS from them and Sergeant A deposited those checks in MSís checking account. From 1988 through 1998, Sergeant A prepared, signed and issued checks drawn on BSSís checking account to the officers who worked security details for BSS. l0 Sergeant A operated BSS while at Department headquarters.

BSS initially charged its clients $12.00 per hour for security services provided by Department officers. In the mid-1990ís BSS increased the hourly rate to $15.00 per hour. The officers who worked the security details were supposed to be compensated by BSS at the same hourly rate that BSS charged its clients (i.e., $12 per hour, and later $15 per hour). BSS did not issue any W-2 Forms or 1099 Forms to officers who performed services for BSS. In December 1998, the then Village Manager Kurt Bressner ordered that BSS cease its operations. l1

 

Closure of BSS

 

In January 1998, the Department consisted of the police chief, Walt Hitchup, six police sergeants, 33 full-time sworn officers, between 5 and 10 auxiliary officers and administrative staff such as clerks and dispatchers. Sergeant A served as an Executive Aide to Hitchup and acted as Deputy Chief. He was involved in Department financial matters including budgeting and purchasing as well as internal investigations and he served as Acting Chief when Chief Hitchup was not available.

In early February 1998, pursuant to a warrant, the Federal Bureau of Investigation (FBI) searched for drugs at a bar in Bensenville known as Club Latino that was owned by the parents of Sergeant T, the head of investigations. The Respondent was concerned that Department personnel may have been involved in illegal drug operations and, after the raid, reorganized the Department. Chief Hitchup resigned and Sergeant U was appointed Acting Chief on February 4, 1998. Sergeant T was reassigned to patrol and Sergeant LL replaced Sergeant A as Deputy Chief.

In February 1998, the Respondent hired the law firm of Cotsirilos, Tighe & Streicker to investigate the Club Latino incident. Theodore Poulos, one of the firmís attorneys, supervised the investigation. l2 Poulos had not previously worked for the Respondent and did not know anyone in Bensenville. Subsequently the Respondent appointed him a special corporation counsel with the power to order that police officers answer questions. l3 Ultimately, after examining police reports and interviewing officers, Poulos determined that Sergeant T and another officer, Wassmann,14 had engaged in criminal acts and made recommendations to the DuPage County Stateís Attorney. He also recommended that the BFPC terminate the two officers. Poulos drafted charges against the officers and the then Acting Chief filed charges before the BFPC. Both officers resigned before any administrative hearings were held.

In late December, 1998, Village Manager Bressner received an anonymous letter addressed to the Illinois Department of Professional Regulation and complaining that BSS operated without proper licenses. On or about December 21, 1998, Bressner ordered BSS to cease operations effective January 1, 1999. In February 1999, at a meeting with Bressner, Assistant Village Manager Kevin Barr,15 who handled labor relations matters Acting Chief Sergeant U and Deputy Chief Sergeant LL, Sergeant A asked that BSS be allowed to start operating again. At that time, Bressner sought additional information about BSS. However, Sergeant A did not respond to certain of his queries. Sometime later, the Respondent asked Poulos to begin an investigation of BSS. l6 Besides Poulos, two other individuals from Poulosí firm, Terry Campbell, an attorney, and David Andrews, a private investigator, were involved in the investigation.

During the course of his investigation, Poulos discovered that BSS was not licensed with the Illinois Department of Professional Regulation and was not registered with the Illinois Secretary of State, had no federal tax ID number, had not issued any W2ís or W-4ís, and had made no filings with the Internal Revenue Service or Illinois Department of Revenue. l7 Officers had been on the honor system with regard to reporting their earnings.††

Poulos obtained documents and correspondence between Bressner and Sergeant A, interrogated Sergeant A regarding BSS and ordered Sergeant A to sign a release for BSS bank records. In the summer of 1999, Poulos obtained all the bank statements, signature cards and cancelled checks of BSS from 1996 to 1998. l8 From his review of those years, he concluded that several hundred thousand dollars had gone through the bank account and surmised that BSS had generated substantial revenue for the officers involved. He then decided to find out whether the Departmentís officers had reported their BSS income. After consulting with Campbell and Andrews, Poulos, in August 2000, issued letters to officers who had worked for BSS. In the letters, Poulos described the investigation of BSS and stated that he was inquiring into whether officers had reported their BSS income. He requested that the officers produce copies of their federal and state tax returns for tax years 1996, 1997 and 1998. l9 A few officers complied with the request to produce. Joe Mazzone, one of the Charging Partyís attorneys, responded on behalf of many officers claiming the investigators were exceeding their authority. Poulos and Mazzone worked out an arrangement under which Poulos ordered the officers to appear for interrogations pursuant to the Uniform Peace Officers Disciplinary Act and bring their tax returns and allow inspection of the relevant portions of them. Poulos sent out another letter to the officers in October 2000 directing that they appear for an interrogation and to bring copies of tax returns for tax years 1993 through 1998. 20

The interviews were held in October and November 2000 in the Departmentís conference room. Poulos interviewed officers who were still employed by Respondent according to the amount of money they made from BSS. Present at the interviews were Poulos, and Campbell, attorneys representing the Respondent, the Charging Partyís attorney, Mazzone who represented the officers, a court reporter and the officer. Officers interrogated in October and November 2000 included Bratko, Neuberg, Ollech, Ragusin, Garris and Bruce Nichols.

Bratko worked for BSS from between 1985 or 1986 until 1998 and earned $27,000 between 1993 and 1998. Bratko admitted at the interrogation that he did not initially report his income from BSS to the IRS. When Bratko had asked Sergeant A aboutreporting the income, the latter had told him not to worry about it. After the interrogation, Bratko contacted an accountant to amend his return. He filed an amended return and paid taxes on the unreported amount as well as a penalty.

Neuberg worked for BSS from 1988 to 1998. Her unreported income was $13,000. She did not report the income to the IRS because she had been told by Sergeant A not to worry about it and she thought that Sergeant A had taken care of the matter. When Neuberg received the letter from Poulos, she realized her mistake and amended her taxes to report the income.

Ragusin worked for BSS from 1996 until 1999. The amount of his unreported income was $13,000. He did not report all of his income because Sergeant A told him he did not have to. Subsequent to his interrogation, Ragusin filed an amended return and paid taxes and penalties.

Ollech did not report $12,000 in income from BSS. Sergeant A had told him not to worry about reporting the income from BSS because, ďIt was taken care of.Ē

Garris did not report about $8,000 of BSS income because coworkers told him he did not have to. Sergeant A told him that most officers did not pay taxes on their BSS income and there was only a remote possibility that anyone would find out. Following his interrogation, he amended his tax returns and paid the tax and penalties.

Nichols worked for BSS from 1987 to 1998. He made about $7000 from BSS from 1993 through 1998. His unreported income was only $840.

After the interviews in October and November 2000, Poulos, in consultation with Campbell and Andrews and, 21 relying on his interrogations of officers and his review of records, concluded that ten officers intentionally failed to report their BSS income. In Poulosís view, the greater the amount of unreported income, the more likely it was that the officer intentionally did not report income. Poulos also determined that some officers underreported their income in some years due to oversight or negligence rather than intentional criminal conduct. There were officers who did not report any of their BSS income but their earnings were less than $500 a year. Poulos believed that only income over $600 had to be reported on a 1099 form. So for officers not reporting small amounts of income, he reserved judgement as to whether their conduct was criminal. 22 At that time, Poulos did notknow which officers were members of and active in the Charging Party. During the interrogations, Poulos had never asked questions about the Charging Party or any union activity.

As a result of the BSS investigation, the Respondent determined that 40 of its officers, including bargaining unit members, sergeants and auxiliary officers received payments from BSS between 1993 and 1998. The officers who were determined to have the highest amounts of unreported income were as follows:23†† [ILLEGIBLE TEXT]

On or about January 14, 2000, Bressner issued a letter25 to ten police officers advising that they would be placed on paid administrative leave. 26 Of the ten officers, four resigned right away. 27 On February 3, 2000, the Respondentís Village Manager and Acting Police Chief Kurt Bressner filed charges with the Respondentís Board of Fire and Police Commissioners28 seeking Bratkoís termination. 29 Bratko had earned the most money from BSS among the officers still working for Respondent. 30 In the administrative proceedings before the BFPC, Poulos represented Bressner and Mazzone represented Bratko. 31 The BFPC hearings lasted five days and ten to twelve witnesses testified. The BFPC sustained the charges and terminated Bratko. 32 He appealed his termination under the Administrative Review Act to the circuit court which upheld the termination and then to the Illinois Appellate Court.

In February or March, 2000, Poulos, as Special Corporation Counsel for the Respondent, filed charges with the BFPC seeking the termination of Neuberg,33 Ragusin,Ollech and Garris. 34 Shortly after the BFPC announced it would terminate Bratko in May 2001,35 those officers resigned effective May 26, 2000. 36

In the summer of 2000, Poulos continued his investigation of the Club Latino matter and filed charges against Sergeant T seeking his removal. Sergeant T resigned shortly thereafter. Because of those other charges and other matters, Poulos did not immediately pursue charges against the other officers who had underreported some but not all of their BSS income and who had not been placed on administrative leave. Additionally, Poulos wanted to wait until the circuit court ruled on Bratkoís appeal of his termination. After receiving the circuit court opinion, Poulos concluded in early June 2001 that he would make specific recommendations as to appropriate sanctions for officers underreportingincome but not criminally. He recommended to Bryon Vana,37 the Village Manager, a period of suspension as opposed to discharge. Vana spoke to the Respondentís elected officials, decided to discipline the officers, and then directed that Deputy Chief Kosman impose suspensions on certain officers for not reporting BSS income. 38 Kosman told Deputy Chief Herion39 about the proposed suspensions around the end of June or beginning of July 2001. The discipline was meted out to officers about two weeks later. Both Deputy Chiefs informed individual officers of charges against them after the complaint in this case issued. Officers II, CC,40 and EE received notice of discipline from the Deputy Chiefs on July 16, 2001; Officer J41 received notice on July 24, 2001. 42 The officers served suspensions of one, three or five days.

 

Union Activities of Bargaining Union Members

 

The Charging Party does not have elected officers, but prior to the start of collective bargaining negotiations, patrol officers from each of the three shifts would select crew representatives. Also, detectives selected their own crew representative. The members of each shift would meet to discuss what kind of benefits they wanted and what questions they wanted to ask regarding collective bargaining negotiations. Members of the Charging Partyís negotiating team were not necessarily crew representatives. Around the time the bargaining unit was organized, there was one meeting of union members but there has been no general meeting since then. The following unit members considered themselves to be activists in the Charging Party: Bratko, Neuberg, Ollech, Ragusin and Garris. Bratko was terminated by the Respondent and the others resigned rather than submit to termination proceedings.

Michael Bratko, a patrol officer for the Respondent from 1979 to 2000 was a member of the Charging Party and involved in its initial organizing campaign. In 1995, on his own initiative, Bratko contacted the Charging Party and other labor organizations such as the Fraternal Order of Police and the Teamsters Union to decide which would be best for the Respondentís patrol officers. However, he was not the only police officer who contacted a labor organization. After the Charging Party was certified as the exclusive representative, Bratko was very outspoken on its behalf speaking to members of the Department, including the current Deputy Chiefs, in all ranks on the job and socially. 43 He told them that the Charging Party would benefit its members in contract negotiations and provide a defense in legal matters. Bratko told other officers that the Charging Party was the ďbest thing we ever got in here,Ē that he was glad it was ďbacking us,Ē and that it was an asset to the Department. He did not recall that he talked to the Chief about the Charging Party and he did not talk to members of the Respondentís village administration. Bratko was not on any Charging Party negotiating team 44 and did not file any grievances. He did not have an official position with the Charging Party at the time the Respondent discharged him.

Sandra Neuberg was a police officer for Respondent for 13 years until May 2000. She became a member of the Charging Party when it was certified and attended a union meeting that was convened around that time. She was a union representative for the five or six patrol officers on her shift (ďcrew representativeĒ) from April 1999 to May 2000. Neuberg never talked to members of the police administration about the Charging Party.

Dirk Ollech was a police officer for Respondent for 8 Ĺ years until May 26, 2000. He had been a member of the Charging Party and spoke in its favor during the organizing campaign in 1994 and 1995. He spoke to other patrol officers and higher-ranking individuals including most of the sergeants. He did not convey his views to the Respondentís administration. Ollech was never a crew representative or other official of the Charging Party. He was involved in contract negotiations in that he researched issues by calling other police departments and he presented those results to his crew representative. Ollech did not tell the Chief or Village Manager that he researched issues for the unit.

Gerald Ragusin worked for the Respondent for 14 years, 8 months. He was always a member of the Charging Party. During its organizing campaign, Ragusin spoke to other employees and to every sergeant about the Charging Party except Sergeant V. He also talked about his support of the Charging Party to office personnel, public works employees and new police recruits saying he was happy to have union representation and that it was good to be a member of the Charging Party. He did not recall whether he talked to the Chief. Ragusin worked as an assistant to the crew representative researching issues for contract negotiations for more than one contract and he told other officers and members of the bargaining team about his findings. He did not recall that he told the Chief or the Respondentís administrators about his research for the bargaining unit.

Joseph Garris worked as a patrol officer for the Respondent for eight years until May 2000. He was a crew representative and served on the original negotiating team for the Charging Party in 1994. He helped gather information for the first and second contract negotiations and submitted that information to Officer S, his crew representative. He did not tell the Chief or the Respondentís administrators about his information gathering activities. Garris talked favorably about the Charging Party to other officers including superior officers and civilian employees but he did not express his views to the Chief. When the sergeants were talking about organizing their own bargaining unit in 1997 or 1998, he encouraged them to consider the Charging Party but they did not. Garris recalled talking to Kosman when he was a patrol officer and stating that he expected the Charging Party to represent police officers regarding†† BSS.

The following individuals were not active in the Charging Party and were either disciplined less severely for failure to report BSS income or not disciplined at all.

Bruce Nichols has been a police officer for Respondent for 16 Ĺ years. He was not involved in the initial certification of the Charging Party and did not become a member until two or three years later. He has never held a leadership position with the Charging Party, been a crew representative or involved in negotiations and he has never filed a grievance alleging a contract violation. He does not consider himself an outspoken supporter of the Charging Party and basically just paid his dues. Nichols was suspended for one day for underreporting $840 in 1998.

Carolee Matrisciano has been a police officer for Respondent for 14 years. She has been a member of the Charging Party since it was certified. She has never held any elected or appointed positions of leadership in the Charging Party and has never filed a grievance. She was not disciplined for her failure to report about $200 to the IRS on her return. She had not been paid that amount at the time she filed her tax return but after she was paid, she then amended her return to reflect the $200.

William Spradling, a police officer for the Respondent for 19 years, has served as the chapter liaison for the Charging Party for about a month. He informs members of what is going on with the Charging Party and vice versa. He was a member of the negotiating team beginning in 2000 after a member of the team left the Department. He sits at the table when the Respondent and the Charging Party negotiate a new contract. 45 Spradling never filed any grievances or talked about the Charging Party prior to his position on the negotiating team. Spradling was suspended for one day for failure to initially report $2000 of BSS income.

 

The Pre-Hire Agreements

[Section relating to recruit bonuses omitted]

 

IV. Discussion and Analysis

 

The two issues in this case are: (1) whether the Respondent, in violation of Section 10(a)(2) and (1) of the Act initiated disciplinary proceedings against Bratko, Neuberg, Ragusin, Ollech and Garris because of their union and protected, concerted activities and (2) whether the Respondent refused to bargain in violation of Section 10(a)(4) of the Act when it entered into pre-hire agreements providing for the payment of $5,000 bonuses with five individuals without notice to and bargaining with the Charging Party.

 

The Section 10(a)(2) Violation

 

In City of Burbank v. Illinois State Labor Relations Board, 128 Ill. 2d 335, 538 N.E. 2d 1146 (1989), the Illinois Supreme Court set forth the standard that must be applied in cases alleging a violation of Section 10(a)(2)47 and (1) of the Act. A charging party must first establish a prima facie case in support of the alleged violation of the Act proving, by a preponderance of the evidence, that (1) the charging party was engaged in union and/or protected, concerted activity, (2) that the respondent had knowledge of such activity, and (3) that the respondent took an adverse employment action against the charging party and that such action was motivated ďin whole or in part on anti union animus--or . . .that the charging partyís protected conduct was a substantial or motivating factor in the adverse action.Ē The Board may infer the requisite discriminatory motivation on the part of a respondent from either direct or circumstantial evidence including the timing of the adverse action in relation to the occurrence of the union and/or protected, concerted activity; a pattern of a respondentís conduct directed at those engaging in union and/or protected, concerted activity; disparate treatment of employees; shifting explanations for a respondentís actions and; inconsistency in the reasons given for its actions against the charging party as compared to other actions of a respondent. City of Burbank, supra.

 

Union and Protected, Concerted Activities

 

The record evidence establishes that the individuals named in the complaint--Bratko, Neuberg, Ragusin, Ollech and Garris--engaged in union and concerted protected activities. Bratko contacted the Charging Party and other labor organizations in 1995 to decide on a union to represent the Respondentís patrol officers. He was outspoken on behalf of the Charging Party and expressed his support in conversations with officers of all ranks including the current Deputy Chiefs. Neuberg was a crew representative from April 1999 to May 2000. Ollech spoke to other police officers and sergeants in favor of the Charging Partyís organizing campaign and researched issues for contract negotiations and presented his findings to his shiftís crew representative. Ragusin spoke to other officers including sergeants in favor of the Charging Party during its organizing campaign and assisted the crew representative in researching issues for collective bargaining negotiations. Garris served as a crew representative and on a negotiating team and spoke favorably about the Charging Party to other officers and sergeants. Having established that the five named individuals engaged in union, and protected concerted activities, the next issue is whether the Respondent had knowledge of those activities.

 

Knowledge of Union and Protected, Concerted Activities

 

The record evidence establishes that the Respondent was aware of at least some of the union activities of the five named individuals. Assistant Village Manager Barr acknowledged that he knew Bratko was a union member although he did not recall how active he was. Garris served on a negotiating team and thus, it can be assumed that the Respondent was aware of his union activities. Neuberg, Ollech and Ragusin were either crew representatives or assisted crew representatives. There is no record evidence that the Charging Party informed the Respondent of its members who served in those capacities. However, Ollech and Ragusin spoke to other members of the department, including sergeants, but not the Chief, about their support for the Charging Party. Under the small plant doctrine, an employerís knowledge of an employeeís union or protected and concerted activity is inferred if that activity is carried on at a small work site and in a manner and at such times that an employer may be presumed to have noticed them. City of Sycamore, 11 PERI 2002 (IL SLRB 1994); Champaign County Clerk of the Circuit Court, 8 PERI 2025 (IL SLRB 1992); Village of Glenwood, 3 PERI 2056 (IL SLRB 1987), County of Peoria, 3 PERI 2028 (IL SLRB 1987).

In this case, the Respondentís agents involved in bringing charges against the five named individuals include the investigator Poulos, the Village Manager and Acting Chief Bressner, the Assistant Village Manager Barr and the Respondentís President and Board of Trustees. Poulos credibly testified that he had no knowledge of the union activities of the five named individuals as he never questioned them regarding such matters. I do not find that Barr had knowledge of the union and protected concerted activities of Neuberg, Ollech and Ragusin because he testified that he was unaware of any such activities and did not ever discuss such matters with Bressner. Those officers were not involved in collective bargaining negotiations, never filed any formal grievances and did not discuss union matters with any members of the Respondentís administration. Furthermore, their union activity was not particularly open or public in nature and I note that the police headquarters is not located in the Village Hall but in a separate building. For these reasons, I conclude that the Charging Party, pursuant to the small plant doctrine, failed to establish that the Respondent had knowledge of the union and protected, concerted activities of Neuberg, Ollech and Ragusin although the Respondent had knowledge of union and protected, concerted activities of Bratko and Garris. However, even if I inferred that the Respondent possessed such knowledge for all the individuals named in the complaint based on the small size of its Department, I would find that the Charging Party failed to establish a prima facie case because of the absence of any evidence of antiunion animus.

 

Anti-Union Animus

 

There is no evidence in the record that the Respondent was hostile to the Charging Party. The Charging Party offered no evidence that the Respondent opposed its organizing campaign. There was no testimony as to any anti-union statements by any of Respondentís agents. The Charging Party merely argues that because the five named officers that were terminated or forced to resign were more active in the Charging Party than officers who suffered lesser or no discipline, the five named officers must have been terminated or forced to leave because of animus toward their protected, concerted activities. An examination of the record reveals that the five officers named in the instant complaint were among the ten officers who had the highest amounts of unreported income from BSS. The other five officers among those ten either resigned or left the Respondent before disciplinary proceedings could be initiated against them. The Respondent did not discipline bargaining unit members who failed to report†† BSS income less than $500. Finally, the Respondent terminated or forced the resignation of individuals who were not in the bargaining unit, that is, individuals who were sergeants or auxiliary officers who failed to report their BSS income. These facts indicate that the Respondent was not motivated by the union and protected, concerted activities of its officers but by the misconduct charged, that is, their failure to report income on their tax returns. I cannot infer that the Respondent disciplined the five named individuals merely because that discipline followed their union and concerted, protected activities. As the Board has repeatedly stated, the timing of an adverse action alone is insufficient to establish improper motive. There must be some showing of additional evidence that supports the conclusion that the adverse action was unlawfully motivated. County of Williamson, 13 PERI 2015 (IL SLRB 1997). In this case, there is no additional evidence suggesting that animus motivated the Respondent to take adverse action against the five named officers. For all the above reasons, I conclude that the Charging Party failed to establish a prima facie case that the five named individuals were charged with misconduct because of their union and concerted protected activities.

Even if the Board were to find that the Charging Party established a prima facie case, I would find that the Respondent had a legitimate business reason for seeking the discharge of the five named individuals. The evidence in the record amply demonstrates that the Respondent discharged or sought to discharge or discipline employees inside and outside the bargaining unit who did not report or underreported their BSS income. The five individuals at issue in this complaint earned substantial income from BSS that was underreported resulting in their discharge and the fact that they were more active members of the Charging Party is a mere coincidence. I therefore conclude that the Respondent did not, in violation of Section 10(a)(2) and (1) of the Act bring disciplinary charges against the five individuals named in the complaint.

 

The Pre-Hire Agreements

 

[This section, pertaining to a side issue of recruit bonuses, is omitted]

 

V. Remedies

 

[This section, pertaining to the remedy for issuing recruit bonuses, is omitted]

 

VI. Conclusions of Law

 

The Respondent did not, in violation of Section I O(a)(2) and (1) of the Act seek to or in fact discharge Bratko, Neuberg, Ragusin, Ollech and Garris because of their union and protected, concerted activities.* * *

 

VII. Recommended Order

 

[This section, pertaining to recruit bonuses, is omitted]

 

VIII. Exceptions

 

In accordance with Section 1220.60 (a) of the Rules and Regulations of the Board, 80 Ill. Adm. Code 1220.60(a), parties may file written exceptions to the Administrative Law Judgeís Recommendation and briefs in support of those exceptions no later than 30 days after service of this Recommendation. Parties may file responses to the exceptions and briefs in support of the responses no later than 15 days after service of the exceptions. Exceptions and responses shall be filed with the Boardís General Counsel, Jacalyn J. Zimmerman, 160 North LaSalle Street, Suite S-400, Chicago, Illinois 60601-3103. Exceptions and responses will not be accepted at the Boardís Springfield office. The exceptions sent to the Board must contain a statement listing the other parties to the case and verifying that the exceptions have been provided to them. The exceptions will not be considered without this statement. If no exceptions have been filed within the 30-day period, the parties will be deemed to have waived their exceptions.

 

Notes to Decision

 

  1. On July 9, 2000, amendments to the Illinois Public Labor Relations Act took effect, dissolving the Illinois State Labor Relations Board and transferring its jurisdiction and authority to the State Panel of the Illinois Labor Relations Board.

 

  1. The Executive Director issued a Partial Dismissal on July 6, 2001 of the Charging Partyís allegations that the Respondent violated Section 10(a)(2) of the Act in hiring and scheduling part-time police officers, offering them preferred shift assignments and signing bonuses and waiving the residency requirement. The Charging Party did not appeal the Partial Dismissal.

 

  1. On March 21, 1991 the Board certified the Bensenville Police Negotiating Committee as the voluntarily recognized representative of all full-time patrol officers in Case No. S-VR-91-1.

 

  1. Bryon Vana has been the Respondentís Village Manager since April 2000. His predecessor was Kurt Bressner.

 

  1. The Board certified AFSCME as the exclusive representative in Case No. S-RC-97 on April 19, 1985; the IAFF in Case No. S-RC-97-77 on October 7, 1997, and the Policemenís Benevolent Labor Committee in Case No. S-RC-0 1 -023 on January 8, 2001.

 

  1. The Village President and Board of Trustees appoint members of the BFPC.

 

  1. Part-time officers are not under the jurisdiction of the BFPC.

 

  1. 8 The parties stipulated to the duties of the Respondentís police officers.

 

  1. The parties agreed to the Respondentís motion in limine that the names of certain employees of the Department involved in the BSS investigation but not charged with wrongdoing would not be used but that they would be referred to by one or two letters of the alphabet to protect their privacy.

 

  1. At the end of the month, Sergeant A would pay the officers for the hours they had worked.

 

  1. The parties stipulated to the above-described facts about BSS.

 

  1. Poulos handled white-collar criminal defense and was formerly an assistant U. S. attorney. In that position, he conducted one hundred investigations. Prior to his hire by the Respondent, Poulos had not been involved in any investigation of police misconduct.

 

  1. At the time he was retained, Poulos did not know that patrol officers were represented by the Charging Party. However, during the course of his investigation, he became aware of the Uniform Police Officers Discipline Act, 50 ILCS 725/1-7 (2000), which provides certain rights to police officers in interrogations and investigations. Poulos asked if the officers had any other rights under any contracts and learned that there were two collective bargaining agreement covering police officers: one for patrol officers and one for sergeants.

 

  1. Wassman was not included within the motion in limine because he was charged with wrongdoing in an indictment.

 

  1. Barr, the assistant village manager from 1993 until March 2000, was the Respondentís chief personnel officer and its chief negotiator. He was also involved in handling grievances.

 

  1. No one from the Respondent told Poulos how to conduct the investigation or what conclusions he should reach.

 

  1. I took administrative notice of criminal provisions of state and federal tax laws.

 

  1. Poulos began to receive bank records in July 1999 and continued to receive them until December 1999.

 

  1. The Respondent did not direct Poulos to look at the tax returns of police officers.

 

  1. Poulos did not seek earlier records because the bank only kept BSS records of the previous six years.

 

  1. The only persons who decided whether the officersí conduct constituted misconduct was Poulos, Campbell and Andrews.

 

  1. Carolee Matrisciano worked for BSS from 1988 or 1989 until 1998 and reported her income to the IRS. She was not interviewed in 1999 because she only made $930 over six years. In 1998, she initially failed to report about $200 to the IRS on her return because she had not been paid at the time she filed. After she received that amount, she then amended her return to reflect the $200. In her June 2000 interview, she explained the circumstances leading to her filing of an amended return in the spring of 1999. She was not disciplined.

 

  1. There were 13 other officers who earned income from BSS ranging from $127,031 to $2,425 for whom Poulos was unable to determine the amount of unreported income. All of those 13 officers left the Department, with six of them resigning for reasons unrelated to the BSS investigation.

 

  1. All officers listed above Officer AA had left the Respondent by May 26, 2000. Officer AA was on administrative leave from the Respondent beginning January 14, 2000.

 

  1. Poulos had recommended to Bressner that no officers be charged until after the holiday season which is why they were placed on administrative leave in January. Poulos reviewed the letter before Bressner issued it.

 

  1. Bressner made the decision to place the employees on administrative leave. Assistant Village Manager Barr was not involved in the initiation of the disciplinary proceedings but was consulted on the issue of an appropriate penalty. He also recalled discussing the paid administrative leave issue with Bressner. Barr left the Respondent in March 2000.

 

Although Barr handled labor relations at the time the Charging Party was organizing, he did not know who solicited the Charging Party as a representative and never received a formal notice as to its officers. Barr had had contact with police officers only during collective bargaining and grievance processing. He knew that Bratko was a union member but he did not recall that Bratko was very active in the Charging Party. Barr did not recall that Neuberg was a member of the Charging Party and he was not aware of Ollechís, Ragusinís or Garrisís involvement with the Charging Party. Barr could not recall that any of the above-mentioned officers participated in collective bargaining negotiations and was not aware of any union meetings. He could not recall any formal grievances filed by the Charging Party. Barr could not recall ever having a conversation with Bressner as to who was active in the Charging Party.

 

  1. Poulos had told Mazzone, who had represented almost all the officers during their interrogations, that he believed the officers had engaged in felony criminal conduct, that the officers would be suspended and placed on paid administrative leave and would be given an opportunity to resign before the Respondent filed charges against them.

 

  1. The Department can impose discipline up to a five-day suspension without resort to the BFPC. An officer has a right to appeal any suspension to the BFPC.

 

  1. Poulos generally kept the Respondentís officials aware of his conclusions and never initiated proceedings against officers without first consulting the Respondent. At hearing, Poulos declined to describe discussions with the Respondentís president, village board of trustees and managers that he believed were protected under the attorney client privilege.

 

  1. Poulos considered Bratko to be a test case to see how the BFPC would react to the charges. In Poulosís view, if the BFPC decided that the charges did not merit discharge, then that would have affected how he handled charges against the other officers.

 

  1. Poulos made a motion to put Bratko on unpaid leave but the BFPC denied the motion and paid him until they reached a final decision.

 

  1. Previously, in 1993, the BFPC had considered terminating only two employees, a patrol officer and a fire lieutenant. The officer had been charged with theft of Respondentís property but he was not discharged. The fire lieutenant, who had been charged with misconduct and sexual harassment, was given a 30-day suspension.

 

  1. Poulos had considered filing additional charges against Neuberg but not the other three officers.

 

  1. Poulos decided that charges should be filed against officers and when they would be filed.

 

  1. The BFPCís written decision did not issue until August, 2001.

 

  1. Ragusin and Ollech resigned rather than go to hearing before the BFPC because they believed that if they did go to hearing, they would also be terminated by the newly appointed members of the BFPC. Around that time, Neuberg was told that if she did not resign, more charges would be filed against her.

 

The Respondent also made a motion to exclude testimony related to events occurring after May 26, 2000.

 

  1. Vana was employed by the Respondent from 1985 to 1993 in various positions such as code enforcement officer, administrative assistant to the Village Manager and Assistant Village Manager. He succeeded Bressner as Village Manager in April 2000.

 

Vana did not know Bratko, Ragusin, Ollech, and Garris and was unaware of their union activities. Vana had met Neuberg when he previously worked for the Respondent.

 

  1. Vana was not aware of the union activities of the individuals disciplined but believed that Officer Kopak was president of the Charging Party. He did not recall having any conversations with police officers who said they supported the Charging Party. At the hearing in this case, Vana did not know what a crew representative was or how the Charging Party selected its negotiating team.

 

  1. Herion, a sergeant and Deputy Chief since September 1999, was hired by Respondent in April 1985. He, as well as Kosman was a member of the Charging Party when he was a patrol officer. Herion never worked for BSS. He did not recall any conversation about BSS with the Village President or Poulos.

 

  1. Officer CC is Bruce Nichols who testified at the hearing in this case. Nichols was suspended for one day for underreporting $840 in 1998.

 

  1. Officer J is William Spradling who testified at the hearing in this case. Spradling worked for BSS from 1985 to 1998 and earned $16,000 in six years. He reported his BSS income to the IRS except for one year in which he underreported $2,000. Spradling was not interviewed regarding his reporting of BSS income until 2000. When told at that interview that he had underreported $2000, Spradling was surprised because he always paid his taxes. At that time, Spradling had been stationed at a school, and checked his documentation on his computer there. He realized that he underreported $2,000 because when he got a new computer, he did not notice that he had not transferred the entire amount of his earnings to the new system. At another meeting, he provided this information and a printout from the two computers to Poulos who stated that he could not figure out why Spradling had not paid taxes for one year when he had paid taxes all the other years. Spradling filed an amended return and paid taxes on the $2,000. After the Deputy Chiefs informed Spradling that charges would be filed against him and that he would be suspended for three days, he appealed his suspension which was reduced to one day by the BFPC.

 

  1. Officer HH was recommended for discipline, but he was not disciplined because he was on leave. Sergeant W and Officer I were issued discipline but left the department before it was imposed. Since Vana has become Village Manager between 8 and 10 officers have resigned.

 

  1. Patrol Officer Nichols testified that Bratko was one of the persons that patrol officers were directed to contact about union issues or contract issues.

 

  1. Bratko had been involved in negotiating a contract two or three times when the police officers were in an independent unit that was not affiliated with any other labor organization and before the Charging Party was certified.

 

  1. Contract negotiations are held at the Village Hall which is located about a half block from the police station.

 

  1. At the hearing in this case, the Charging Party asked Village Manager Vana whether the bonuses had been paid and was informed that they had not as yet been paid. In a letter dated April 16, 2002, the Respondent, to complete the record on that issue, informed the ALJ and the Charging Party that the officers, upon completing their probationary period, received cash payments pursuant to the pre-hire agreements.

 

  1. Section 10(a)(2) provides that it shall be an unfair labor practice ďto 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.Ē

 

  1. This does not affect the body of law forbidding discrimination against applicants for employment. Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941).

 

 


 

Decision and Order

Illinois Labor Relations Board State Panel

 

Before Hoffman, Chairman; and Breslan, Lechowicz, and Walsh, Board Members *

 

On June 27, 2002, Administrative Law Judge Sharon B. Wells issued a Recommended Decision and Order in the above-captioned case finding that (1) the Village of Bensenville (Respondent) had not violated Section 10(a)(2) and (1) of the Illinois Public Labor Relations Act, 5 ILCS 315 (2000) (Act), by initiating disciplinary proceedings against five of its police officers; and (2) that the Respondent had violated Section 10(a)(4) and (1) of the Act by offering pre-hire bonuses to certain applicants for patrol officer positions without first bargaining with the Metropolitan Alliance of Police, Bensenville Police Chapter #165 (Charging Party).

 

Thereafter, in accordance with Section 1220.60 of the Rules and Regulations of the Illinois Labor Relations Board, 80 Ill. Admin. Code Sections 1200 through 1230, both parties filed timely exceptions to the Recommended Decision and Order. The Respondent filed a timely response to the Charging Partyís exceptions. After reviewing the record, exceptions and response, we hereby uphold the recommendation of the Administrative Law Judge and adopt it as a decision of the Board. ***

 

* Member Lounsberry participated in the decision made at the State Panelís public meeting, but left the Panel prior to issuance of the written decision.