Third Division

									December 24, 2003

No. 1-02-0960

METROPOLITAN ALLIANCE OF				)	Petition for Review

POLICE,							)	of an Order of the

								)	Illinois Labor 

	Petitioner-Appellant,			)	Relations Board,

								)	Local Panel

								)	

	v.							)	No. L-CB-01-006  

								)

								)	

STATE OF ILLINOIS LABOR RELATIONS		) 

BOARD, LOCAL PANEL, MANNY HOFFMAN,		)

Chairman; DONALD HUBERT, Board Member;	)  	

EDWARD E. SADLOWSKI, Board Member; 	)

and JOE CUNIGAN, Original Charging 	)

Party,							)

								)	

	Respondents-Appellees.			)

	JUSTICE HALL delivered the opinion of the court:

	The Metropolitan Alliance of Police, Cook County Sheriff's

Correctional Officers Chapter 222 (Petitioner-Union), seeks

direct review of an administrative decision and order of the

Local Panel of the Illinois State Labor Relations Board (Board),

finding that Petitioner-Union violated section 10(b)(1) of the

Illinois Public Labor Relations Act (Act) (5 ILCS 315/10(b)(1)

(West 2000)), by threatening not to process any further

grievances on behalf of Joe E. Cunigan and refusing to pursue his

suspension grievance to arbitration.

	On appeal, Petitioner-Union contends that: (1) the Board's

action in reversing the administrative law judge's partial

dismissal of Cunigan's unfair labor practice charge was clearly

erroneous; (2) the Board's decision and order was premised on an

improper standard of union animus; and (3) the Board's imposed

remedy was in contravention of applicable statutory standards.  For the reasons that follow, we affirm the Board's decision and

order.

FACTUAL BACKGROUND

	The facts giving rise to this appeal are not in dispute. 

Cunigan is a correctional officer who began his employment with

the sheriff of Cook County in 1978.  On November 16, 1999,

Cunigan began circulating a petition among his fellow

correctional officers seeking signatures for a bid to have the

International Brotherhood of Teamsters, Local 714 (Teamsters),

replace Petitioner-Union as the correctional officers' exclusive

bargaining representative.  Earlier, in December 1998, the Board

had certified Petitioner-Union as the exclusive bargaining

representative of the sheriff's correctional officers, thereby

supplanting the Teamsters.

	On November 18, 1999, two days after Cunigan began

soliciting union-member signatures, the executive director of the

Cook County department of corrections issued a memorandum to all

correctional officers forbidding the officers from soliciting

such signatures while on duty or within the perimeter of the Cook

County department of corrections.  Shortly thereafter, the

memorandum was amended to allow correctional officers to solicit

signatures within the perimeter of the Cook County department of

corrections provided the officers were off duty.

	On November 25, 1999, Cunigan was suspended for three days

without pay, after he was allegedly observed sleeping on duty.  On December 16, 1999, Cunigan and his union steward submitted a

grievance at the first step of the five-step grievance process,

challenging the three-day suspension on the ground that Cunigan

was performing his assigned duties at the precise time he was

allegedly observed sleeping.  Cunigan's grievance was denied at

the first, second, and third steps of the grievance procedure,

whereupon he requested his union steward to pursue the grievance

to the fourth step.  A fourth-step hearing on Cunigan's grievance

was conducted and afterwards on June 30, 2000, the grievance was

denied, but the imposed suspension was reduced from three days to

two days.

	On July 20, 2000, Cunigan wrote to Petitioner-Union

president, Joseph M. Andalina, requesting that the union pursue

his grievance to the fifth step, arbitration.  In a letter dated

August 4, 2000, Andalina replied in relevant part as follows:

		"I am in receipt of your letter regarding your

grievance # 99-09-292 and your desire to seek arbitration. 

The decision not to arbitrate your case was made after

review with your Chief Union Steward and assigned attorney. 

This was based on the allegation of your sleeping on duty

and not for your attempt to collect signatures for the

Teamsters to de-certify from M.A.P.

		M.A.P. does not pursue grievances for individuals who

are working for other unions.  If you were collecting these

signatures for the Teamsters, you were not performing any obvious union duties for this union, which currently

represents all of the Correctional Officers.  That in and of

itself would nullify this union for pursuing any grievances

and discipline for you since you were not doing any

authorized union duties.

		Further, the paperwork submitted by others to your

Chief Union Steward was able to lessen your suspension from

five (5) days to two (2) days, and his labors demonstrate

savings of three suspension days for you.

		I am not aware of any evidence rebutting your actions. 

If you have any, or someone to confirm that you were not

sleeping on duty, I will pass the case on to the full M.A.P.

Board and they will ultimately decide on the issue as to

whether to appeal your case or not.  You would have to

submit evidence that you were not sleeping and show that

your employer actually retaliated against you for your other

activities.

		I do not vote except in any ties.  Send your evidence

to either M.A.P. or your Chief Union Steward for further

review.  I will pass your letter and my answer and comments

from your Chief Union Steward to all of our Board members in

anticipation of the receipt of your evidence."

	Pursuant to its regular procedure, a member of the

Petitioner-Union's executive board contacted Cunigan's union

steward in order to obtain information regarding the history of the grievance and its subject matter.  After reviewing the file

on Cunigan's grievance, the executive board initially voted to

table the grievance pending receipt of a written statement from

Cunigan outlining and explaining the incident that led to his

suspension.  The executive board, however, ultimately voted

against arbitrating Cunigan's grievance, without being in receipt

of his written explanatory statement.1

	As the grounds for its refusal to pursue Cunigan's grievance

to arbitration, the executive board cited both the failure of

Cunigan to submit a written explanatory statement and the success

of the union steward in getting Cunigan's suspension reduced.2

	On August 23, 2000, Cunigan filed an unfair labor practice

charge with the Board, alleging that the Petitioner-Union engaged

in an unfair labor practice in violation of section 10(b)(1) of

the Act, when the union refused to arbitrate his suspension grievance.  In the charge, Cunigan maintained that the

Petitioner-Union had refused to arbitrate the grievance in

retaliation for his activities in support of a rival union, the

Teamsters.  Cunigan sought to have his grievance arbitrated or be

reimbursed for the two days he was suspended.  

	On March 27, 2001, a hearing regarding the charge was held

before Administrative Law Judge John F. Brosnan.  Cunigan offered

his own written entries in his logbook along with corresponding

confirming signatures made by the lieutenant and captain who

allegedly had observed him sleeping on duty, as evidence to show

that at the time he was alleged to have been asleep, he was

actually checking on prisoners.3

	On June 29, 2001, Judge Brosnan issued a recommended

decision and order finding that Petitioner-Union had violated

section 10(b)(1) of Act when it threatened not to process

grievances filed by Cunigan due to his support of a rival union. 

However, Judge Brosnan also found that even though Petitioner-

Union had intentionally refused to arbitrate Cunigan's grievance, this refusal did not violate Petitioner-Union's duty of fair

representation, concluding that there was insufficient evidence

establishing that this intentional conduct was done in

retaliation for Cunigan's support of a rival union or for any

other unlawful reason.

	Cunigan filed timely exceptions to Judge Brosnan's

Recommended decision and order, to which Petitioner-Union filed

no response.  After reviewing the record and exceptions, the

Board issued a written decision and order on March 12, 2002, in

which it reversed Judge Brosnan's partial dismissal. Metropolitan Alliance of Police (Cunigan), 18 Pub. Employee Rep. (Ill.) par. 3013, No. L-CB-01-006 (Illinois Labor Relations Board, Local

Panel, March 12, 2002).  The Board agreed with the Judge's

determination that Petitioner-Union's threatened refusal to

process grievances filed by Cunigan due to his activities in

support of a rival union, violated section 10(b)(1) of Act. 

However, in contrast to the judge, the Board found that

Petitioner-Union's decision not to pursue Cunigan's grievance to

arbitration also violated section 10(b)(1) of the Act. 

Petitioner-Union filed a petition for direct administrative

review of the Board's decision and order.

ANALYSIS

I. Standard of Review

	Judicial review of decisions of the Board is governed by the

Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2000); City of Freeport v. Illinois State Labor Relations Board, 135 Ill. 2d 499, 507, 554 N.E.2d 155 (1990)).  Judicial review

extends to all questions of law and fact presented in the record.

City of Tuscola v. Illinois State Labor Relations Board, 314 Ill. App. 3d 731, 734, 732 N.E.2d 784 (2000).

	The Board's findings of fact are held prima facie true and correct and therefore will be reversed on appeal only if they are

against the manifest weight of the evidence. Illinois Fraternal Order of Police Labor Council v. Illinois Local Labor Relations

Board, 319 Ill. App. 3d 729, 736, 745 N.E.2d 647 (2001).  The decision is against the manifest weight of the evidence only if

the opposite conclusion is clearly evident. City of Tuscola, 314 Ill. App. 3d at 734.

	The Board's conclusions of law, however, are not entitled to

the same deference and we review them de novo. Illinois Fraternal Order of Police, 319 Ill. App. 3d at 736.  Nonetheless, reviewing courts generally accord substantial deference to the

interpretation placed on a statute by the agency charged with its

administration and enforcement. County of Cook v. Licensed Practical Nurses Ass'n, 284 Ill. App. 3d 145, 152, 671 N.E.2d 787 (1996).  An agency's statutory interpretation will be rejected if

it is unreasonable or erroneous. City of Tuscola, 314 Ill. App. 3d at 734.

	When mixed questions of law and fact are involved, requiring

an examination of the legal effect of a given set of facts, the Board's resolution of such questions will be upheld on review if

"reasonable, consistent with labor law[,] and based on findings

supported by substantial evidence." Northwest Mosquito Abatement District v. Illinois State Labor Relations Board, 303 Ill. App. 3d 735, 742, 708 N.E.2d 548 (1999).  Decisions by the Board that

involve mixed questions of law and fact will be overturned only

if found to be clearly erroneous. Illinois Fraternal Order of Police, 319 Ill. App. 3d at 736, citing City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 205, 692 N.E.2d 295 (1998).

	In the present case, the relevant facts surrounding

Cunigan's grievance and the Petitioner-Union's handling of the

grievance are undisputed.  Here, we must review the decision of

the Board to determine whether the Board correctly found that

Petitioner-Union committed an unfair labor practice in violation

of section 10(b)(1) of the Act, when the union threatened not to

process any further grievances on behalf of Cunigan and refused

to arbitrate his suspension grievance.  Consequently, this case

presents a mixed question of law and fact since it involves an

examination of the legal effect of a given set of facts.  Thus,

the Board's decision should be affirmed unless it is found to be

clearly erroneous.

II. Unfair Labor Practice - Section 10(b)(1) 

	Petitioner-Union first contends that the Board's action in

reversing Judge Brosnan's partial dismissal of Cunigan's unfair labor practice charge was against the manifest weight of the

evidence.  We must reject this contention.

	Although section 11(a) of the Act allows the Board to

appoint a qualified hearing officer or administrative law judge

to hear complaints of unfair labor practices (5 ILCS 315/11(a)

(West 2000)), the Board retains the discretion to "adopt all,

part or none" of an administrative law judge's recommended

decision and order depending on the extent to which it is

consistent with the record and applicable law. 80 Ill. Adm. Code

§1200.135(b)(4) (2003).  In this case, since the Board's decision

presents a mixed question of law and fact, our review will focus

on whether the decision was clearly erroneous.

	Petitioner-Union asserts that the Board incorrectly found

that it committed an unfair labor practice in violation of

section 10(b)(1) of the Act, when it threatened not to process

any further grievances on behalf of Cunigan and refused to

arbitrate his suspension grievance.  We must disagree.

	As previously mentioned, after reviewing the record,

exceptions, and Judge Brosnan's recommended decision and order,

the Board agreed with the judge's determination that Petitioner-

Union's threatened refusal to process grievances filed by Cunigan

due to his activities in support of the Teamsters violated

section 10(b)(1) of Act.4  However, in contrast to the judge, the Board found that Petitioner-Union's refusal to arbitrate

Cunigan's grievance also violated section 10(b)(1) of the Act. 

The Board's latter finding was not clearly erroneous.

	Under section 10(b)(1) of the Act, a labor organization or

its agent violates the organization's duty of fair representation

if it commits intentional misconduct in representing an employee.

5 ILCS 315/10(b)(1) (West 2000)5; Murry v. American Federation of State, County & Municipal Employees, 305 Ill. App. 3d 627, 631, 712 N.E.2d 874 (1999); Foley v. American Federation of State, County & Municipal Employees, 199 Ill. App. 3d 6, 9-10, 556 N.E.2d 581 (1990) (stating that an exclusive bargaining

representative commits an unfair labor practice pursuant to

section 10(b)(1) of the Act when it fails to fairly represent the

interests of all members of a bargaining unit as required by

section 6(d) of the Act).6

	Under section 6(d) of the Act, unions are accorded

substantial discretion in deciding whether and to what extent a

particular grievance should be pursued. ATU, Local 241 (Lawrence), 14 Pub. Employee Rep. (Ill.) par. 3011, No. L-CB-98- 028, at XI-92 (Illinois Labor Relations Board, Local Panel, June 5, 1998).  The mere fact that a union does not pursue a charging

party's grievance to arbitration is not itself indicative of

intentional misconduct.

	To demonstrate intentional misconduct by a union under

section 10(b)(1) of the Act, a charging party must prove by a

preponderance of the evidence that: (1) the union's conduct was

intentional, invidious and directed at him; and (2) the union's

intentional action occurred because of and in retaliation for

some past activity by the employee or because of the employee's

status (such as race, gender, or national origin), or animosity

between the employee and the union's representatives (such as

that based upon personal conflict or the employee's dissident

union practices). AFSCME Local 2912 (McGloin), 17 Pub. Employee Rep. (Ill.) par. 3001, No. L-CB-99-005, at XI-5 (Illinois Labor

Relations Board, Local Panel, October 23, 2000).

	In order to establish the second element of a section

10(b)(1) violation, the charging party must prove unlawful

discrimination.  In duty-of-fair-representation cases, to prove

unlawful discrimination, the charging party must establish a

prima facie case by demonstrating by a preponderance of the evidence that: (1) the employee has engaged in activities tending

to engender the animosity of union agents or that the employee's

mere status, such as race, gender, religion or national origin,

may have caused animosity; (2) the union was aware of the

employee's activities and/or status; (3) there was an adverse representation action taken by the union; and (4) the union took

an adverse action against the employee for discriminatory

reasons, i.e., because of animus toward the employee's activities or status. AFSCME Council 31 (Robertson), 18 Pub. Employee Rep. (Ill.) par. 2014, Nos. S-CB-00-014, S-CA-00-102 Cons., at X-102

(Illinois Labor Relations Board, State Panel, February 13, 2002)

(hereafter 18 Pub. Employee Rep. (Ill.) par. 2014).

	To establish the requisite causal connection between the

employee's protected activities and the adverse representational

action, the employee may submit direct or circumstantial evidence

establishing the union's unlawful motive. 18 Pub. Employee Rep. (Ill.) par. 2014, at X-102.  Motive is a question of fact;

therefore, the Board may infer discriminatory motivation from

either direct or circumstantial evidence. City of Burbank v. Illinois State Labor Relations Board, 128 Ill. 2d 335, 345, 538 N.E.2d 1146 (1989).  Circumstantial evidence is the proof of

certain facts and circumstances from which the fact finder may

infer other connected facts that usually and reasonably follow

according to common experience. In re Estate of Malbrough, 329 Ill. App. 3d 77, 82, 768 N.E.2d 120 (2002).

	In-duty-of-fair-representation cases, circumstantial

evidence may include: the timing of the union's adverse action in

relation to the protected activity, expressions of hostility

toward protected activities, disparate treatment of employees or

a pattern of conduct that targets certain employees for adverse representation action, and shifting or inconsistent explanations

for the adverse representation action. See City of Burbank, 128 Ill. 2d at 345-46.

	Once the charging party establishes a prima facie case, the burden then shifts to the union to demonstrate that it would have

taken the same adverse representational action even absent the

charging party's participation in the protected activity. 18 Pub.

Employee Rep. (Ill.) par. 2014, at X-102.  The union can escape liability if it proffers a legitimate explanation for its adverse

representational actions and the Board ultimately determines that

the explanation is not pretextual.

	When these principles and standards are applied to the facts

in this case, the record indicates that Cunigan successfully

established a prima facie case that his solicitation of signatures on behalf of the Teamsters was a motivating factor in

the executive board's decision not to pursue his grievance to

arbitration.  First, there is no question that Cunigan was

engaged in a protected activity when he solicited signatures on

behalf of the Teamsters.  Under section 6(a) of the Act,

"[e]mployees of the State and any political subdivision of the

State *** have, and are protected in the exercise of, the right

of self-organization, and may form, join or assist any labor

organization *** free from interference, restraint or coercion."

5 ILCS 315/6(a) (West 2000).  Second, there is no question that

Petitioner-Union was aware of this activity.  Third, there was an adverse representational action taken by Petitioner-Union in that

its executive board decided not to pursue Cunigan's grievance to

arbitration.  Fourth and finally, Cunigan provided circumstantial

evidence, in the form of Andalina's letter, demonstrating the

existence of a causal connection between Cunigan's participation

in a protected activity and the refusal of the executive board to

arbitrate his grievance.

	For example, in his letter to Cunigan, Andalina states that

the decision not to arbitrate the grievance was based on the

allegation that Cunigan was caught sleeping on duty and not for

his activities in support of the Teamsters.  However, in the

letter's next paragraph, Andalina states that the union does not

pursue grievances for individuals who support rival unions and

that Cunigan's collection of signatures supporting the Teamsters

nullified the union's obligation to pursue any grievances on his

behalf because he was not doing any authorized union duties.

	Thus, the language and tenor of Andalina's letter strongly

support the Board's conclusion that the animosity expressed in

the letter led to or was a reflection of the executive board's

decision not to pursue Cunigan's grievance to arbitration.  In

fact, the Board stated that the statements in the letter

constituted "an unprecedented admission of retaliation against an

employee for exercising his statutory right to assist the labor

organization of his choice."

	The evidence also indicates that once Cunigan established his prima facie case and the burden shifted to Petitioner-Union to demonstrate that it would have rejected arbitrating Cunigan's

grievance even in the absence of the animus expressed toward his

activities in support of the Teamsters, Petitioner-Union failed

to make such demonstration.  For example, Petitioner-Union

acknowledges that Andalina's letter expresses animosity in regard

to Cunigan's activities on behalf of the Teamsters and concedes

that the executive board's decision not to arbitrate Cunigan's

grievance was intentional.  Petitioner-Union maintains, however,

that Andalina did not participate in the process to decide

whether Cunigan's grievance would proceed to arbitration and

therefore there is insufficient evidence showing that Andalina's

animosity influenced the executive board's decision not to

arbitrate the grievance.  We note, however, that Andalina's

letter expressly states, "I will pass your letter and my answer

and comments from your Chief Union Steward to all of our Board

members in anticipation of the receipt of your evidence."  This

excerpt clearly indicates that the executive board was given

Andalina's letter and was aware of his animosity at the time of

its decision not to arbitrate.

	In contrast to Petitioner-Union's position, the Board stated

that it "must consider the effect of the Union president's

[Andalina's] avowed hostility toward Cunigan's support of a rival

union upon the executive board's decision-making process."  The

Board stated that to overcome the blatant animus expressed in Andalina's letter, the executive board would have to demonstrate

that it fairly and objectively considered Cunigan's grievance on

its merits.  Ultimately, the Board determined that the reasons

the executive board gave for deciding not to pursue Cunigan's

grievance to arbitration were insufficient to establish that the

executive board fairly and objectively considered his grievance

on its merits.  We agree with the Board.

	Petitioner-Union claimed that the executive board's decision

not to arbitrate Cunigan's grievance was based on his failure to

submit a written explanatory statement to the board and on the

fact that the union steward had already succeeded in reducing the

duration of his suspension.  The Board rejected both of these

reasons.

	In regard to the written explanatory statement, the Board

determined that it was reasonable for Cunigan to decide not to

submit a statement after reading Andalina's letter, believing

that in light of the language and tenor of the letter, the

submission of a statement would be futile.  Thus, the Board

concluded that Cunigan's decision not to submit an explanatory

statement was a direct result of Andalina's unlawful actions. 

The Board also noted that no evidence was ever presented showing

that any union official disavowed the statements in the letter or

assured Cunigan that the executive board would give his

arbitration request unbiased consideration.  The Board reasoned

that since the executive board's decision not to pursue arbitration was based, in part, on Cunigan's failure to submit an

explanatory statement and Cunigan's failure to submit the

statement was due to Andalina's animus, then it was actually

Andalina's animus that resulted in the union eventually refusing

to arbitrate the grievance.

	In regard to the union steward's success in reducing the

duration of Cunigan's suspension, the Board pointed out that the

executive board incorrectly concluded that the suspension had

been reduced from five days to two days rather than three days to

two days.  The Board determined that the executive board's

confusion regarding such fundamental facts of Cunigan's case

demonstrated that the executive board failed to engage in a full

and impartial consideration of the case.

	Under the circumstances, we find that Petitioner-Union did

not meet its burden of showing by a preponderance of the evidence

that the executive board would have declined to arbitrate

Cunigan's grievance even absent his dissident union activities on

behalf of the Teamsters.  Thus, we agree with the Board's finding

that the executive board's refusal to arbitrate Cunigan's

grievance rose to the level of intentional misconduct in

violation of section 10(b)(1) of the Act.

III. Appropriate Standard

	Petitioner-Union next contends that the Board's decision was

premised on a improper standard of union animus.  Specifically,

Petitioner-Union maintains that the Board's decision was incorrectly based solely upon the prejudice and animosity

expressed in Andalina's letter.  We must reject Petitioner-

Union's contentions.

	As previously mentioned, in duty-of-fair-representation

cases, to prove unlawful discrimination, the charging party must

establish a prima facie case by demonstrating by a preponderance of the evidence that: (1) the employee has engaged in activities

tending to engender the animosity of union agents or that the

employee's mere status, such as race, gender, religion or

national origin, may have caused animosity; (2) the union was

aware of the employee's activities and/or status; (3) there was

an adverse representation action taken by the union; and (4) the

union took an adverse action against the employee for

discriminatory reasons, i.e., because of animus toward the employee's activities or status. 18 Pub. Employee Rep. (Ill.)

par. 2014, at X-102.

	Here, there is no dispute that Cunigan established elements

one through three; therefore, our analysis will focus on the

fourth element of the prima facie case wherein the charging party must establish that a union's adverse representational action was

based on animus toward the charging party for his or her

participation in a protected activity.  Animus may be inferred

from such circumstantial evidence as expressed hostility toward a

charging party's participation in protected union activities. See

American Federation of State, County & Municipal Employees, Council 31 v. Illinois State Labor Relations Board, 175 Ill. App. 3d 191, 197-98, 529 N.E.2d 773 (1988).  In this case, the Board

was permitted to draw an inference of unlawful motive from

Andalina's letter.  The Board stated that it "must consider the

effect of the Union president's [Andalina's] avowed hostility

toward Cunigan's support of a rival union upon the executive

board's decision-making process."  The Board stated that to

overcome the blatant animus expressed in Andalina's letter, the

executive board would have to demonstrate that it fairly and

objectively considered Cunigan's grievance on its merits.

	Petitioner-Union attempts to downplay the statements by

Andalina, but the weight of the evidence is for the Board to

determine, and its findings must be accepted if supported by

substantial evidence. City of Burbank, 128 Ill. 2d at 345.  In the present case, Andalina's statements along with evidence

showing that no union official disavowed the statements or

assured Cunigan that the executive board would give his

arbitration request unbiased consideration, support the Board's

conclusion that Cunigan's protected conduct was the motivating

factor in the executive board's decision not to arbitrate his

grievance.  The Board's conclusion is also supported by evidence

showing that the executive board incorrectly found that Cunigan's

suspension had been reduced from five days to two days rather

than three days to two days, and by the executive board's

ultimate refusal to arbitrate Cunigan's grievance as reflected in Andalina's letter.  Thus, we find that the Board employed the

proper standard in making its decision.

IV. Proper Remedy

	Finally, Petitioner-Union asserts that the remedy in this

case was in contravention of applicable statutory standards. 

Petitioner-Union did not raise this argument below and therefore

it is waived. Moore v. Illinois State Labor Relations Board, 206 Ill. App. 3d 327, 337, 564 N.E.2d 213 (1990) (concluding that

failure of party to raise an argument in its exceptions to a

recommended decision and order waives that argument for review).

	Waiver aside, Petitioner-Union's argument must be rejected. 

The purpose of the Board in fashioning a remedy in a duty-of-

fair-representation case is to order a "make-whole" remedy that

places the "'parties in the same position they would have been in

had the unfair labor practice not been committed.'" Paxton- Buckley-Loda Education Ass'n v. Illinois Educational Labor

Relations Board, 304 Ill. App. 3d 343, 353, 710 N.E.2d 538 (1999), quoting City of Harvey, 13 Pub. Employee Rep. (Ill.) par. 2031, No. S-CA-95-079, at X-171 (Illinois State Labor Relations

Board, July 7, 1997).  Here, the Board did not abuse its

discretion by ordering the remedy set forth in this case. See

Paxton-Buckley-Loda, 304 Ill. App. 3d at 353 (noting that a remedial order of the Board is reviewed under an abuse of

discretion standard).

	In this case, the Board ordered Petitioner-Union to cease and desist from threatening not to pursue grievances on behalf of

Cunigan and from refusing to arbitrate Cunigan's or any other

employee's grievance because of his support of a rival labor

organization.  In addition, the Board ordered Petitioner-Union to

make Cunigan whole for the losses he suffered as a result of his

two-day suspension.  Further, the Board ordered Petitioner-Union

to post a notice advising collective bargaining unit members of

the Board's decision and of their rights to engage in self-

organization, and to form, join, or help unions, and to

collectively bargain through a representative of their own

choosing.  Finally, the Board ordered Petitioner-Union to notify

the Board in writing, within 20 days from the date of the

decision and order, of the steps that had been taken to comply

with the decision.  The record supports the Board's cease and

desist order.

	For example, in its decision, the Board declared that the

statements in Andalina's letter constituted "an unprecedented

admission of retaliation against an employee for exercising his

statutory right to assist the labor organization of his choice." 

There was no evidence presented that any union official disavowed

the statements or assured Cunigan that the executive board would

give his arbitration request unbiased consideration.  Under such

circumstances, we conclude that the remedy was within the Board's

discretion.

	A union's duty of fair representation arises from its statutory role as the exclusive bargaining agent for its members.

Paxton-Buckley-Loda, 304 Ill. App. 3d at 349.  "'[T]he exclusive agent's statutory authority to represent all members of a

designated unit includes a statutory obligation to serve the

interests of all members without hostility or discrimination

toward any, to exercise its discretion with complete good faith

and honesty, and to avoid arbitrary conduct.'" Paxton-Buckley- Loda, 304 Ill. App. 3d at 349, quoting Vaca v. Sipes, 386 U.S. 171, 177, 17 L. Ed. 2d 842, 850, 87 S. Ct. 903, 910 (1967).

	In the instant case, the record supports the Board's finding

that Andalina's animus toward Cunigan's protected conduct

directly affected the executive board's decision not to arbitrate

Cunigan's grievance.  The Board properly exercised its discretion

to remedy the effect of the unfair labor practice.

V. Conclusion

	For the aforementioned reasons, we affirm the decision and

order of the Local Panel of the Illinois Labor Relations Board.

	Affirmed.

	SOUTH and KARNEZIS, JJ., concur.