## I LLINOIS 

## O FFICIAL 

## R EPORTS Appellate Court

City of Bloomington v. Illinois Labor R elations Board, State Panel , 2011 IL App (4th) 100778

Appellate Court Caption THE CITY OF BL OOMINGT ON, Petitioner-Appellant, v. THE ILLINOIS LABOR REL

ATIONS BOARD, STATE PANEL ; and THE POL ICEMEN’S BENEVOLENT A ND P ROT EC TIV E ASSOCI ATION LAB OR COMMI TTEE, Res pondents- Appellee s.

District & No. Fourth District Docket No. 4–10–0778

Filed June 13, 2011

Held ( Note: T

his syll abu s constitutes no part of

the opinion of the court but has been prepared by th e Reporter of Decisionsfor the conven ie nce of the reader. ) The Illinois Labor Relations Board properly granted respondent

police union’s motion for

attorney fees and costs against petitioner city based

on testimony

the city presented in a hearing on an unfa ir-labor-practice charge arising from the failure to promote an of fic er to the rank of lieutenant that was “without reasonable cause and found to be untrue.”

Decision Under Review Petition for review of order o f Illinoi s Lab or Relati ons Boar d, State Panel, No. SCA04120.

Judgment Affirmed.-2-

Counsel on Appeal Linda M. Doyle (ar

gued) and Monica M. Quinn, both o f McDer mott Will & Emery L

LP, of Chicago, for pe

titioner.

Lisa Madiga n, Att or ne y G eneral, of Chicago (Michael A. Scodr o, SolicitorGenera

l, and Eri c Truett

(argued), Assistant

Attorney Genera l, of counsel), for res pondent I llinois Labo

r Relatio ns Boar

d, State Pa

nel.

Joel A. D’Alb a and Mar garet Angelu cci, both

of Ash er, Gi ttler & D’Alba, Ltd., of Chicago, for respondent

Policemen’s Benevolent and Protective Association Labor Committee.

Panel JUS TICE Mc CULL

OUGH delivered

the judg ment of the

court, w ith opinion.
P residin g Justice Knecht and Justice Appleton concurred in the judgment and opinion.

OPINION

¶ 1 The City of

Bloomington (City) see

ks direct administrative review of a decision of the Illin ois Labor Relations Board, State P anel (Bo ard) , that granted a motion by The Policemen’s Benevolent and Protective Association Labor Committee (Union) for attorney fees and costs against the City. The City argue s (1) the Union failed to serve its motion on the City and (2) the B oard’s award had no basis. Policem en’s Ben evolent & Protective Ass’n Labor C ommittee , 26 PERI ¶ 99, No. S–CA–04–120 (I LRB State Panel Aug. 27, 20 10 ) (hereinafter

26 PERI ¶ 99). We a

ffirm. ¶ 2 In 2004, the Union filed an unfair- labor-practice charge with the Board, a

lleging theCity violated the Illinois Public Labor Rela tions Act (Act) (5 IL

CS 315/10(a)(1), (a)(2), (a)(4) (West 2002)) by (1) de

nying Sergeant Paul Williams a promotion to the rank of lieutenant because of his unio n activity

and (2) u

nilaterally ch anging promotion procedures. On November

30, 20 09, fo llow ing hearin gs in th e ma tte r, a n ad mini str ati ve l aw j udg e (A LJ) issued a recom

m ended decision and order. P olicemen’s Benevolent & Protective Ass’n Labor Committee
, 26 PERI ¶ 99, No. S–CA–04–120 (Administrative La w Judge’s Recommended Decision and Order Nov. 30, 2009), at 404 (hereinaf ter A LJ decision , 26 PERI ¶ 99). The ALJ agreed, in part, with the Union’s position, finding the City ’s denial of a p romo tion to Williams wa s motivate d by union anim

us. ¶ 3 According to the AL J’s decisio n, the City ’s police departm ent had a procedure for promoting to the ra nk of lieutenant that had three elements: a written examination, an-3-

assessme nt, and the awarding of merit and ef ficiency points to e a ch candidate by assistant chiefs and current lieutenants. The three elements we re evaluated and

compiled into a final

score that was submitted to the chief of police, Roger Aikin. Aikin then had the discretion
to appoint a

lieutena nt from the

three to p-scoring candidates. The A LJ found Aikin repeat edly stated t o othe r police department officers that he would promote in ra nk order unless he had a good reason not to do so. ¶ 4 In 2003, Williams was a candidate for promotionto the rank of lieutenant. The parties stipulated that

Williams was a Union member, served as its president and on its negotiation team, and had filed at least one grievance on the Union’s behalf. The y also ag reed that such activity was protected under the Act. With respect to the promotion decision at issue, Williams was the highest-ranking ca ndidate but was passed over by Aikin in fa vor of

a lower-ranking candidate. ¶ 5 The ALJ no te d A ik in ’s on ly expressed reason for by passing Williams was the low number of merit and eff ici enc y poi nt s he rec eiv ed d uri ng t he p rom ot io n pr oce ss . Th e ALJ found the record “devoid” of similar

relianc e on the nu

mber of me

rit and efficiency

points in connection with previous promotion decisions. He specifically referenced

a prior instance where the highest-ranking candidate wa s promoted despite the fact that he also had a lower number of merit and efficiency

points than another candidate. The AL J found Aikin’s reliance on low mer

it and efficiency

points was inconsistentand concluded the only apparent difference

between Williams, who was passed over, and the previous candidate, who was
pr om ot ed , w as Wi ll ia ms ’s un io n a ct iv it y. ¶ 6 The ALJ’s decision that the City was motivated by union animus in by

passing Williams

was also based, in part, on Aikin’s testimony at the he aring. Specifically , Aikin testified he chose to pass over

Williams for

the promo tion to lieu

tenant because

of Williams’s (1) prior refusal to become head of the vice unit, (2) alleg ed request that a secretary change the minutes of a staf

f meeting , (3) lac

k of conc ern abou

t money spent o n binders for investigative documents, and (4) remark to Aikin that Aikin would be “g utted” at a union meeti ng. The ALJ found Aikin had not previously articulated any

of those reasons either at the time of his decision notto promote Williams or during related federal court pr oceedings. He state d as follo ws: “The shifting

of Aikin’ s r easons for his decision points to the conclusion that it was basedon union a

nimus. Add

itionally , the vali dity

of Aikin’s asserted reasons are suspect

as there is no evidenc e that Aik in did anything to va

lidate their legitimacy . For example, while Aikin askedand knew Williams did not want the vice unit position he never asked Williams about whether

he wante d a promot

ion to lieut

enant. N or did Aikin talk

to [the

se cr et ar y] or Williams about the meeting minutes incident or check into the additional
cost or necessity of

the more expensive binders. Additionally, while Aikin denie d the ‘gutted’ remark

had an inf

luence o n his deci sion he al so admitted he was not happy a bout it and considered it evidence of disloy alty that supported his decision to deny Williams’[s] promotion.” ALJ decision, 26 PERI ¶ 99, at 412. ¶ 7 Neither

party filed e

xceptions to the ALJ’s decision. However, on January 4, 2010, the Union filed a motion with the Board f or attorn ey fees and costs ag ainst the C ity p ursuant t o-4-

section 11(c) of the Act

(5 IL CS 315/11(c) (West 2008)) and title 80, section 1220.90(e), of the Illin ois Adminis t rative Cod e (Code) (80 Ill. Adm. Code 1220.90(e)(2010)). It alleg ed the City made allegationsor denia ls without reasonable cause that were found to be untrue. The Union pointed to formal denials in the City’s answer to the Union’s charge, as well as Aikin’s testimony as to his previously unstated reasons for deny ing Williams the promotion. ¶ 8 On August 27, 2010, the Boa rd issued its dec is io n i n t he m att er. 26 P ER I ¶ 99 . It declined
to impose sa

nctions on

the City for its answers to the Union’s complaint. However, the Boa rd didaward the Union attorney fees and costs for Aikin’s hearing testimony . The Board stated as follow s: “We are far more troubled by the [City’s] assertions raised for the first time during the hearing which were not only found by the AL

J to be untrue (a finding not challenged by the [City ]) but so bl ata nt ly fa ls e th at t he A LJ found they constituted furthe r evidence of union animus (aga in, a find ing not challeng ed by

the [City ]). The [City

] had full opportuni ty to understand its case at this point in time, and may prope rly be cr iticized for presenting never-before -offered false alternative reasons fo r its cond uct towar d Williams. For this reason, and because the [City ] raises no objection, we grant the motion for attorney fees and costs.” 26 PERI ¶ 99, at 404. ¶ 9 This appeal followed. ¶ 10 On appeal, the City first ar gues the Board’s decision should be re ve rsed bec ause th e Union did not serve its motion for attorney fees and costs on the City. I t contends it had no notice that the Union’s motion had bee n filed a nd no oppor

tunity to respond to the Union’s claims. ¶ 11 The Code sets f orth requirements for proceedings be fore the Board. I

t states unfair-laborpractice chargesand other document s must

“be served by

the party filing

the document on all other parties to the proceedings.” 80 I ll. Adm. Code 1200.20(e) (2010). “When a party is represented

in a proceeding before the B oard, serviceshall be on the party’s r epresentative.” 80 Ill. Adm. Code 1200.20(e) (2010). “The document

shall not b e conside

red prop erly

served unless accompanied by proof of service. Proof of s ervice

shall con sist of a w

ritten sta tement, signed

by the party

effecting service, detailing the name of the party served and the date and manner of service.” 80 Ill. Adm. Code 1200.20(e) (2010). ¶ 12 Illin ois Supreme Court Rule 11(b)(3) (eff. Dec. 29, 2009) permits service of document s by mail. The Code’s procedures for the Boa rd also pro vide tha t service of a document by mail “shall be presumed complete 3 days afte r mailing, if proof of service shows the document was properly

addressed.” 80 Ill. A dm. C ode 1200.30(c) (2010). However, the presumption “may be ove rcome by the a

ddressee, with evidence estab lish ing that the document was not delivered or

was delivered

at a later date.” 80 I

ll. Adm. Code 1200.30(c) (2010). ¶ 13 Here, the rec ord conta ins evide nce that the Union

complied

with the Code’ s service require ments. On January 4, 2010, the Union filed its motion for a ttorney fees and costs. Along with that motion, it filed a notice of its filing and a

certificate of service, stating the Union’s attor ney, Joe l D’Al ba, se rved i ts mo tion on th e Cit y by mailing a copy to the City’s-5-

at to rn ey, Linda

Doyle. The c ertific ate of se rvice c ontained

all of the information required by the Code, including Doyle ’s address, the date of the mailing, and D’Alba’s signa ture. On January 5, 2010, the Union f

iled err ata shee ts in connection with

the pr eviou s day’s fi lings
to correct ty

pogra phical e rrors. Again, it

filed a n otice of

filing a nd a cer tificate of service, showing service of its documents by mail on Doyle. This second c ertific ate of se rvice a lso properly set f

orth Doyle’s addr

ess, the date of the mailing, and D’Alba’s signature. ¶ 14 Despite evidence that the Union mailed a copy of its motion to the City the same day it was filed, the City claims it was neve r served and such lack of

service provides a basis for reversing the Boa

rd’s awa rd of sanctions. Asevidenc e that it w as n ot serv ed, the Cit y attached Do yl e’s affidavit to its notice of appeal. I n her affidavit, Doy

le asserted she had received the Board’s order imposing sanctions, she was the City ’s attorney, and ne ither she nor any other

counsel had been served with the Union’s motion. ¶ 15 The U nion corr ectly st ates it is improper for this court to consider Doy le’s affida

vit because it was not part of the administrative record. See 735 IL CS 5/3–110 (West 2008); see also Burgess v. B oard of Fire & Police Co mmissione rs , 209 Ill. App. 3d 821, 827, 568 N.E.2d 430, 434 (1991) (“I t is well established that affidavits which were not made a par t of the r ecord in proceedings before the administrative agency may not be consider

ed in an administrative review action.”). However, eve n consideration of Doyle’s affida vit would not warrant a finding that the Union failed to serve its motion on the City. Specifica lly, “[s]ervice by mail is not invalid simply because a party denies receiving it.” Thompson v. Department of Employ

ment Sec urity , 399 Ill. App. 3d 393, 395, 928 N.E.2d 528, 530 (2010). ¶ 16 In the case at bar, the Union filed a certificate of service with its motion for attorney fees and costs that met the requirements for service as set fo rthin the Code. The City raises no claim that the cer tificate of servi ce was d

eficien t. Addition ally , not only

was a certificate of service filed with

the Union ’s motion, o ne was a lso filed the following day with the Union’s
errata sheets. Notably , the City makes no r

efere nce tothis second f

iling, wh ich would also have put it on notice that the Union was asking for sanctions. The City has never disclaimed service of the Union’s errata sheets. Given these fa cts, we find the Union ’s motion was properly ser

ved. ¶ 17 On appeal, the City next argues Aikin’s hea ring testimony did not provide an appropr iate basis for the Board’s award of a ttor ney fees and costs. The Act provides for an award of sanction s as follow s: “The Board’ s order may

in its discr

etion also include a n approp riate sanction, based on the Board’s rules and regula tions, and the sanction may include a n order to pay

the other party or parties’ reasonable expenses including costs and reasonable attorney ’s fee, if the other party has made allegations or denials without reasonable cause and found to be
untrue ***.” (Emphasis added.) 5 IL CS 315/11(c) (West 2008). The Board’ s rules pe

rmit a par ty to request sanctions from

the Board even though it did not

move for sanctions before the ALJ and ev en tho ugh the AL J did not rec ommend sa

nctions. 80 Ill. Adm. Code 1220.90(e) (2010). The Board’saward of sanctions is subject to an abuseof-di scretion s tandard of review. Wood Dale Fire Protection District v. Illinois Labor Relations Board, State Panel , 395 Ill. App. 3d 523, 535, 916 N.E.2d 1229, 1239 (2009).-6-

¶ 18 He re, the Boa rd gra nted the U

nion’s moti on for sa

nctions a gainst the City based

o n Aikin’s testimony

as to the various reasons he did not promote Williams to lieutenant. At issue was Aikin ’s testimony that he passed on Williams because of Williams’s (1) prior refusal to b ec ome head of the vice unit, (2) alleged r equest that a secretary

change the minutes of a staf

f meeting , (3) lac

k of conc ern abou

t money spent on binders fo r investigative docum ents, and (4 ) remar k to Ai kin t hat Ai kin wo uld b e “gu tte d” at a union meeti ng. The Boa

rd noted A

ikinhad never before raised those a ssertions agains t Williams

as a basis for

his promotion decision. It also pointed out that the AL J made the unchallenged finding th at Ai ki n’ s a ss er ti on s w er e u nt ru e a nd “s o b la ta nt ly f al se ” t ha t “ th ey c on stituted furt her evidence of union animus.” The Board dete rmined the City could “proper ly be criticized for pre senting

never- before -offer

ed false alternative reasons for

its conduct toward Williams.” The record shows the Board acted within its discretion in awarding the Union
attorne y f ees and c osts. ¶ 19 Ini ti al ly, we note the Board relied upon the A LJ’s fi ndin gs in re aching its decision. Although, on appeal, the City may prope rly cha

llenge the Board’s decision, it may not chall enge the ALJ’s finding s and dec ision. I n unfair -labor- practic e proce edings, a party must file exceptions to an ALJ’s decision no later than 30 days afte

r service of that decision. 80 Ill. Adm. Code 1200.135(b)(1) (2010). “A party not filing timely exceptions waives its right
to object to the Administrative Law Judge’s rec ommended decision and order.” 80 Ill . Adm. Code 1200.135(b)(1) (2010). The City never filed any

exceptions to the ALJ’s decision. ¶ 20 In support of its challenge to the Board’s deci sion, the City argue s Aikin’s sanctioned testimony did not con stitute

“allegations or denials” as required by the Act and the Board’s

own rules. It maintains sanctions were improperly “based on testimony re garding the witness’s state of mind and reasoning in making a promotion decision.” However, the word “alleg ation” me ans: “1. The act of declaring something to be true. 2. Something decl ared or asser ted as a matter of fact, esp. in a legal pleading; a par ty’s formal statement

of a factual matter as being true or p

rovable , without it s having y et been proved.” Black’s Law Dictionary 81 (8th ed. 2004). When testifying, Aikin as ser ted and declared as fact his reas ons for f

ailing to promote Williams. Hi s testimony

clearly constituted “alleg ations” th at were subject to

sanction s. ¶ 21 The City also argue s Aikin’s testimony was not made “without rea son able cause.” It
notes the ALJ never made such a finding . However, while the AL J never expres sly stated Aikin’s asserted reasons were without reasona ble cause, the issue of sanctions was not before the ALJ. Additionally, the A LJ did determine that Aikin’s asserted r eason s were suspect because he did nothing to validate their legitimacy. The AL J stated:
“For example, while Aikin asked and knew Williams did not want the vice unit position he never a sked Will iams about whether he wante d a promot

ion to lieut

enant. N or did Aikin talk to [the secretary ] or Williams about the meeting minutes incident or check into the additional cost or necessity of the more expensive binders. ” AL J decision, 26 PERI ¶ 99, at 412. ¶ 22 The record

shows Aikin assert

ed reas ons for hi s decisio n to pass over Williams that were-7-

never prev io us ly articulated and which he did not investigate or substantiate. The Board acted within its discretion in concluding Aikin’s allegations were without reasonable cause. ¶ 23 The City

also argues the cases cited by the Board do not support an award of sanction s. It contendsthe case s are dis tinguish able bec ause (1) the subject of the sa nctions in those

cases were factual allegations and not state-of-mind testimony and (2) the s anctioned party admitted having no basis for making the allegations. As discussed, Aikin’s testimony in this

case contained sanctionable allegations of fact and the Board’s decision is notreversible on that basis. Also, the Act, Code, or case law imposes no requirement that a party must make

an admission of baselessness to be sanctioned. The lack of an express admission b y the City in this case does not warrant reversal of the B oard’s decision. ¶ 24 F in al ly, we find meritless the City’s contention that upholding the B oard’s decision would create an una ccepta ble pr eceden t that allow s all n onpre vaili ng part ies to be sanctioned. The Board’s decision in the instant ca se was ba sed on the specific facts presented. This is not a case where the B oard awarded sanctions to punish the City merely for def ending itself ag ainst the U

nion’s unf

air-lab or-pra

ctice c laims. ¶ 25 The record

shows the

City attempte d to suppor

t its decision to pass over Williams with

reasons that wer

e never previous ly

asserted as a basis for its decision and some of which had

never been investigated or established as true. The A LJ determined the City’s additional

reasons for its promotion decision were not valid and evidence of union animus. The Board didnot abuse its discretion by find ing the testimony at issue constituted “alleg ations or denials”made “w ithout rea sonable c ause and found to be

untrue”and awa

rding sa nctions. ¶ 26 For the reasons stated, we affirm the B oard’s decision. ¶ 27 Affirmed.