NO. 4-00-0030 

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE BOARD OF EDUCATION, CITY OF

PEORIA SCHOOL DISTRICT NO. 150,

	Petitioner, 

	v.

THE STATE OF ILLINOIS EDUCATIONAL

LABOR RELATIONS BOARD and DAVID

REEISE,

	Respondents.	)

)

)

)

)

)

)

)	Administrative Review

from the

Illinois Educational

Labor Relations Board

No. 98CA0023S

_________________________________________________________________

	JUSTICE McCULLOUGH delivered the opinion of the court:

	Petitioner, Board of Education, City of Peoria School

District No. 150 (District), seeks direct review (115 ILCS 5/16(a)

(West 1998); 155 Ill. 2d R. 335) of a decision of the Illinois

Educational Labor Relations Board (IELRB) finding that the District

had violated sections 14(a)(1), (a)(3), and (a)(4) of the Illinois

Educational Labor Relations Act (Act) (115 ILCS 5/14(a)(1), (a)(3),

(a)(4) (West 1998)) and reinstating respondent David Reeise to the

position of custodian, or a substantially equivalent position, and

making him whole for his lost wages and benefits, plus interest.  Peoria School District No. 150, 15 Pub. Employee Rep. (Ill.) par. 1034, No. 98-CA-0023-S (Illinois Educational Labor Relations BoardELRB, April 6, 1999).  On review, both the

IELRB and Reeise, pro se, have filed responsive briefs.  Hereinaf ter, Reeise will be referred to as respondent.  The issues are

whether (1) the plurality decision of the IELRB and the administra

tive law judge (ALJ) properly invoked the missing witness rule

against the District and (2) the IELRB decision is against the

manifest weight of the evidence.  We affirm.

	Taken with the case are two motions by respondent Reeise

to supplement the record on review.  No objections have been filed. 

However, the motions demonstrate that the documents sought to be

supplemented were not before the ALJ or IELRB when their respective

decisions were made.  On review of an administrative agency

decision, this court is limited to considering the record that was

before the agency and may not consider new or additional evidence. 

North Avenue Properties, L.L.C. v. Zoning Board of Appeals, 312 Ill. App. 3d 182, 185, 726 N.E.2d 65, 68 (2000), quoting section 3-

110 of the Administrative Review Law (735 ILCS 5/3-110 (West

1998)).  The Administrative Review Law applies to this direct

review proceeding.  115 ILCS 5/16(a) (West 1998).  Respondent's two

motions to supplement the record with material that was not in the

record of the administrative agency are denied.

	On May 4, 2000, this court previously allowed peti

tioner's motion to supplement the record with very similar material

relating to the IELRB's finding that respondent was a member of a

union bargaining team in 1996 and 1997.  The petitioner sought to

"correct errata" by submitting minutes of the collective-bargaining committee dated December 9, 1994, and September 3, 1997.  The

IELRB's objection was not received by this court before the

petitioner's motion was granted, and on May 24, 2000, the IELRB's

motion for reconsideration was denied.  It is clear, however, that

the documents submitted by petitioner to supplement the record were

not before the IELRB and were never part of the record.

	We now reconsider and grant the IELRB's motion to reconsider the earlier ruling on petitioner's motion to supplement

the record and deny petitioner's motion to supplement the record. 

See People v. Nichols, 143 Ill. App. 3d 673, 676, 493 N.E.2d 677, 679 (1986).

	The District first argues that the plurality decision of

the IELRB and the ALJ improperly applied the missing witness rule. 

The IELRB accepted the ALJ's resolution of the credibility of

witnesses.  The District particularly attacks this resolution in

respect to whether respondent intimidated a "Mrs. Ernest" by

lunging at her during a conversation.  The allegation was made in

a letter from Aurthur Perkins, principal of Harrison Primary

School, to Jerome A. Greer, the District's director of human

resources.  Although she did not testify, Ernest is identified in

the IELRB decision as a teacher's aide.

	The IELRB determined that respondent did not act to

intimidate Ernest as Perkins alleged in her letter.  In a footnote,

the plurality decision of the IELRB explains its reliance on the

ALJ's determination of Perkins' credibility and the ALJ's conclu

sion that, had Ernest been called to testify, she would have

testified unfavorably to the District.  This conclusion was based

on the fact that the District did not call Ernest to testify.

	The missing witness rule allows the trier of fact to draw

an adverse inference if (1) the missing witness was under the

control of the party against whom the inference is drawn, (2) the

witness could have been produced in the exercise of reasonable

diligence, (3) the witness was not equally available to the party in whose favor the inference is drawn, (4) a reasonably prudent

person would have produced the witness if the party believed the

testimony would be favorable, and (5) no reasonable excuse for the

failure to produce the witness is shown.  See Simmons v. University of Chicago Hospitals & Clinics, 162 Ill. 2d 1, 7, 642 N.E.2d 107, 110 (1994); Illinois Pattern Jury Instructions, Civil, No. 5.01 (3d

ed. 1995) (hereinafter IPI Civil 3d).

	The ALJ's recommended decision and order includes the

following paragraph in its findings of fact:

		"Where the evidence is in conflict, my

findings are based on the testimony that was

credible.  I have tried to make clear the

points at which a material credibility dispute

exists.  In general, I found the testimony of

Principal Perkins to be less credible than

that of Reeise where the evidence is in con

flict.  Perkins was generally evasive, denying

recollection of key incidents, and she gave

inconsistent testimony about some incidents. 

Based on my observation of her testimony, I

believe she was primarily concerned with

justifying her initiation of Reeise's dis

charge.  In addition, the District did not

call other witnesses employed at Harrison

School who might have lent credibility to

Perkins' version of events, even though such witnesses are obviously within the District's

control."

	The ALJ also reasoned: "The District did not call Ernest

as a witness to lend support to Perkins' version of the incident or

to submit to cross-examination about it.  I conclude that her

testimony would have been unfavorable to the District."

	The determination as to whom to call as a witness is left

to each party.  The missing witness inference was not the only

basis for the ALJ's findings.  The ALJ did not find Perkins

credible.  Perkins was petitioner's only witness as to this

incident.  The ALJ found respondent and custodian Eddie Washington

more credible than Perkins about the circumstances of this

incident.  Her decision stated that although Perkins was "generally

evasive, denying recollection of key incidents, and she gave

inconsistent testimony about some incidents," "the District did not

call other witnesses employed at Harrison School who might have

lent credibility to Perkins' version of events, even though such

witnesses are obviously within the District's control."  Applying

the factors set forth in IPI Civil 3d No. 5.01 and Simmons, the statements made by the ALJ with respect to the failure to call

witnesses did not amount to reversible error.

	The remaining issue is whether the IELRB decision is

against the manifest weight of the evidence.  The IELRB found that

the District violated sections 14(a)(1), (a)(3), and (a)(4) of the

Act.  Section 14(a)(3) prohibits discrimination in hiring, tenure,

or any term or condition of employment to encourage or discourage membership in any employee organization.  115 ILCS 5/14(a)(3) (West

1998).  Section 14(a)(4) prohibits discharging or otherwise

discriminating against an employee for signing or filing an

affidavit, authorization card, petition, or complaint, or giving

any information or testimony under the Act.  115 ILCS 5/14(a)(4)

(West 1998).  Section 14(a)(1) prohibits interfering, restraining,

or coercing employees in the exercise of rights guaranteed under

the Act.  115 ILCS 5/14(a)(1) (West 1998).  

	Our review extends to all questions of law and fact.  The

IELRB's findings of fact are considered prima facie true and correct.  735 ILCS 5/3-110 (West 1998).  The decision of the IELRB

will not be set aside unless the IELRB exercised its authority in

an arbitrary or capricious manner or the decision is against the

manifest weight of the evidence.  Hardin County Education Ass'n v. Illinois Educational Labor Relations Board, 174 Ill. App. 3d 168, 178, 528 N.E.2d 737, 743 (1988).  It is not the function of this

court to reweigh evidence or make an independent determination of

the facts.  Abrahamson v. Illinois Department of Professional Regulation, 153 Ill. 2d 76, 88, 606 N.E.2d 1111, 1117 (1992).  If the question involved is a question of law, this court is not bound

by the IELRB's decision (City of Freeport v. Illinois State Labor Relations Board, 135 Ill. 2d 499, 507, 554 N.E.2d 155, 159-60 (1990)), but deference will be given to the interpretation of a

statute by an agency charged with its administration and enforce

ment (Central City Education Associatio'n v. Illinois Educational Labor Relations Board, 149 Ill. 2d 496, 510, 599 N.E.2d 892, 898 (1992)).

	Although charged under different subsections of section

14 of the Act, all of the unfair labor practices in this case are

based on the District's action of discharging respondent from his

employment.  As relevant to this case, to establish a prima facie case of a section 14(a)(4) violation, the respondent must prove

that he used or participated in the IELRB's processes, the District

was aware of those actions, and the District discharged him in part

because of that activity.  A prima facie case of a section 14(a)(3) violation is made by presenting evidence showing that the employee

was engaged in activity protected by section 14(a)(3), the District

was aware of that activity, and he was discharged for engaging in

that activity.  In determining whether the District's conduct

violated section 14(a)(1) of the Act, the test is whether the

District's conduct "may reasonably be said to have a tendency to

interfere with the free exercise of employee rights under the Act." 

Georgetown-Ridge Farm Community Unit School District No. 4 v. Illinois Educational Labor Relations Board, 239 Ill. App. 3d 428, 465-66, 606 N.E.2d 667, 690 (1992).  The IELRB has applied section

14(a)(1) to prohibit interference with concerted acts of mutual aid

or protection, including activity not involving a union.  Crete- Monee School District No. 201-U, 7 Pub. Employee Rep. (Ill.) par. 1068,   case No. 89-CA-0009-C, at IX-274 (Illinois Educational Labor Relations ELR B Board,, May 24, 1991). 

	Once a prima facie showing has been made of the discharge being an unfair labor practice, the burden shifts to the District

to demonstrate, by a preponderance of the evidence, that the

discharge would have occurred notwithstanding the protected activity.  Georgetown-Ridge Farm, 239 Ill. App. 3d at 464, 606 N.E.2d at 689.  The determination of the District's motive is a

question of fact which the IELRB may infer from direct or circum

stantial evidence, and the IELRB's finding as to motivation must be

accepted if supported by substantial evidence.  City of Burbank v. Illinois State Labor Relations Board, 128 Ill. 2d 335, 345, 538 N.E.2d 1146, 1150 (1989).

	Respondent testified that he had complained to union

representatives about overtime issues, teachers working summertime,

replacement workers, and custodians doing carpenter work. 

Respondent was a member of Local 8 of the International Union of

Firemen and Oilers, SEIU, AFL-CIO, and Local 183 of the Interna

tional Brotherhood of Carpenters.  He had also pursued previous

unfair labor practice charges against the District, the latest of

which was resolved by this court in November 1997, months before he

was discharged.  Reeise v. Illinois Educational Labor Relations Board, 292 Ill. App. 3d 1135, 717 N.E.2d 866 (1997) (unpublished order under Supreme Court Rule 23).

	By the nature of respondent's activities, it would be

difficult to find that the District was not aware of his protected

activities.  Perkins testified that respondent had presented her

with grievances for her signatures and that overtime was never an

issue until respondent was assigned to her building and raised the

issue.  Rich Traenkenschuh and Joe L. Jackson testified that the

head custodian, Phil Shadid, told them that the respondent was a

troublemaker and to document respondent's activities. 

	The IELRB could also infer from the evidence that

respondent was discharged in part for his protected activities. 

See Georgetown-Ridge Farm, 239 Ill. App. 3d at 464-65, 606 N.E.2d at 689 (discussing a threat to fire all part-time custodians

because of a lawsuit filed by one of them).  As already noted, the

IELRB found that Perkins told respondent in front of other

witnesses whose affidavits were presented to the IELRB that

respondent should not have filed charges against the District and

she wanted him fired.  The IELRB could infer from the evidence that

the "charges" referred to by Perkins included the unfair labor

practices charge and that she was not exclusively referring to

claims he had filed with the Department of Human Rights.

	Finally, the IELRB found that the District did not

present sufficient evidence from which it could find that respon

dent would have been discharged for his poor work performance

notwithstanding his protected activities.  The IELRB found that

there was disproportionate treatment by Perkins and the District in

disciplining respondent and two other custodians prior to his being

fired.  Subsequent to a February 10, 1995, settlement agreement

between respondent and the District that "purged" respondent's

personnel file of all letters relating to prior disciplinary

actions, respondent received a warning on March 21, 1995; a 15-day

suspension on April 24, 1995; and a 30-day suspension on November

6, 1995.  No other disciplinary actions were taken against

respondent prior to his discharge on March 9, 1998.  The IELRB

adopted the ALJ's finding of lack of credibility of Perkins concerning the performance of respondent's job duties, basically

finding that Perkins was trying to manufacture reasons to fire

respondent.  Questions of credibility are in general to be

determined by the ALJ and IELRB.  The supreme court's statements in

Parro v. Industrial Comm'n, 167 Ill. 2d 385, 396, 657 N.E.2d 882, 886-87 (1995), are appropriate here:

		"The evidence in the case at bar could

conceivably support a variety of inferences,

and we will not substitute our judgment for

that of the Commission merely because we might

have drawn different inferences from the same

record. [Citations.] '[I]t is axiomatic that

this court will not disregard or reject per

missible inferences drawn by the Commission

merely because other inferences might be

drawn, nor will we substitute our judgment for

that of the Commission unless its findings are

against the manifest weight of the evidence. 

[Citations.]'  (Castaneda v. Industrial Comm'n (1983), 97 Ill. 2d 338, 341.)  It is the

Commission's role to judge the credibility of

the witnesses, determine the weight of their

testimony, and draw appropriate inferences

from the evidence."

 This court is not the fact finder.  By this order, however, we do

not mean to indicate condonation or approval of the conduct of respondent.  

	The decision of the IELRB is not against the manifest

weight of the evidence.  The decision of the IELRB is affirmed.

	Affirmed.

	STEIGMANN, P.J., and COOK, J., concur.