## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Michels v. Illin ois Labor Relation s Board , 2012 IL App (4th) 110612

Appellate Court Caption J OHN M I CHEL S, Petitioner, v. (No. 4-11-0612) THE I L L I NOI S LAB OR RELATI ONS BO ARD, STATE PA N E L ; JO H

N F

. B ROSNAN, Ex ecutive Direc tor of Said Boa rd, in His Of

fi ci al Capac ity Only ; J ACALYN J

. Z I MMERMAN, Chairman of Said B oard, in H er Offic ial Capac ity Only ; MI CHAEL COL I
, MI CHAEL HADE, J ESSI CA KIM B RO U G H
, a

n d A LB E RT WASHI

NGTON
, Members o f Said B o a r d
, in Their Offic ial Capac ity Only ; and CENTRAL MANAGEMEN T S E R V I C E S / T H E D E P A R T M E N T O F C O R R E C T I O N S
, Respondents.–J OHN MI CHEL S, Petit i o ner v. (No. 4-11-0659) THE I L L I NOI S LAB OR RELATI ONS BO ARD, STATE PANEL ; J OHN F. BROSNAN, Ex ecutive Direc tor of Said Boa rd, in His Offic ial Capac ity Only ; J ACALYN J

. ZI M M ERMAN, Chairman of Said Boa rd, in Her Offic ial Capac ity Only ; MI CHAEL COL I
, MI CHAEL HADE, J ESSI CA KIM B RO U G H
, a

nd AL BERT WASHI

NGTON
, M e mb e r s o f Said B o a r d
, in Their Offic ial Capac ity Only ; and THE AMERI CAN FED ERATI ON OF STATE, COUNTY, AND MUNI CI PAL EMPL OYEES, COUNCI L 31, Respondents.

District & N o. Four th District Docke t No. 4-11-0612, 4- 11-0659 cons.

Rule 23 Order

filed Motion to publ ish allowed Opinion filed May 23, 2012

J une 25, 2012 May 23, 2012Held

(Note : This syl lab us

con st it ute s no pa r t of the opi nio n of the cour t but has bee n pre

par ed by t he Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) In proce eding s based on petitioner’s discharg e fro m his position as a senior parole ag ent with the Depa rtment of Correc tions, the I llinois L abor Relations Boa

rd’s dismiss al of petitioner’s charg es ag ainst his employer and his union were upheld, since the charg es ag ainst his employ er w ere not filed within the six -month limit ations period in the I l l inois Public L abor Relations Act and p et itioner did not prese nt any evidenc e supporting his claim that his union’s decision not to pursue his g rieva nce violated its duty

to provide fa ir repr esentation.

Dec ision Under Review Petition for revie w of order of I llinois L abor Relations Boa rd
, Nos. S-CA09-250, S-CB- 09-038.

J udg ment No. 4-11-0612, A ffirme d. No. 4-11-0659, A ffirme d.

Counsel on Appea l Stanley H. J akala and Ba rbar a J

. Be ll (ar gued), bot h of Be rwy n, for petitioner.

Melissa J

. Auer

bach, of Cornfield & Fe ldman, of Chicag o, for responde nt Americ an Fe deration of State, County
, and Municipal Employ ees, Council 31.

L isa M ad iga

n, Attorney Gene ral, of Chicag o (Michae l A. Scodro, Solicitor Gene ral, and Mary C. L aBrec (ar gued), Assistant Attorney Gene ral, of c ounsel), for

other re spondents.

Panel J USTI CE POPE delivered the judgment of the c ourt, with opinion.
J u s t ices Steigmann and McCullough concur red in the judgme nt an d opinion.

OP INION

¶ 1 I

n Ju n e 2009, J ohn Michels, petitioner, filed unfair labor prac tice charg es with the I llinois L abor Relations Boa

rd (B oard) ag ainst both his employer, the I llinois Depa rtment of Central Manag ement Services (CMS) (ac ting on behalf of the I llinois Depa rtment of Correc tions

-2-(DOC))
, in case No. S-CA-09-250 (appe llate court case No. 4-11-0612)
, and his labor union,

the Americ an Fe deration of State, County
, and Municipal Employ ees, Council 31 (Union), in case No. S-CB-09- 038 (appe llate court case No. 4-11-0659) stemming from his May 2008 discharg e. ¶ 2 In J anuar

y 2011, the Boa

rd’s Ex ecutive Direc to r (D i re ct o r) d i s m i ssed both char g es, finding the char g e ag ainst CMS untimely and the charg e ag ainst the Union unsubstantiated. Petitioner appea led the Direc to r’ s fi n d i ng s to the Boa rd and the Boa

rd aff irmed. John Miche ls
, 28 PERI ¶ 10 (I L RB State Panel 2011) ; John Mic hels , 28 PERI ¶ 12 (IL RB S tate Panel 2011). ¶ 3 Petitioner appea ls the Boa rd’s decisions, arguing (1) the unfair labor prac tices complaint
ag ainst CMS was timely

filed (No. 4- 11-0612) a

nd (2) he raised suf

ficient fa cts to warr ant issuance of an unfair labor prac tice complaint ag ainst the Union (No. 4-11-0659)

. Be cause both charg es wer e predic ated on the same set of fac ts, we g rante d p et i t i o n er ’s motion to consolidate the c ases f

or purpose s of this appea l. We affirm.

¶ 4 I . BA CKGROUND ¶ 5 A. Petitioner’s Discha rg e ¶ 6 Petitioner was employ ed as a senior parole ag ent with DOC. Through his employ ment he belong ed to the Union. ¶ 7 On April 20, 2007, petitioner was place d on 10 1/2 months of paid administrative leave

. Petitioner returne d to work on May 2, 2008. ¶ 8 On M ay 2 0
, 2 0 0 8, CMS discharg ed petitioner, citing various ac t s o f m i s co n du ct involving s ev eral parole es that occur red prior to his being place d on administrative leave

. Information discovere d by CMS and the I llinois State Police du ri n g t he investiga tion of petitioner’s misconduct reve aled acts of misconduct, incl u d i n g ex cessive use of forc e, socializing with committed persons, traff icking
, fili n g fa l se repor

ts, verba l and phy sical hara ssment of parole es, and various civil rig hts violations. All of these acts wer e char acte rized as blatant violations of DOC’s standa rds of c onduct. ¶ 9 Specifica lly
, the documentation contained in the rec ord shows petitioner was discharg ed for, int er a l i a , the following rea sons: (1) acting unprofe ssionally in a parole e’s home by calling the parole e inappropriate n ames, searching the home without permission, and knocking the parole e’s hat off his head while he was handcuf fed; (2) exposi ng himself and urinating in the prese nce of a fema le parole e and having an unusual number of contac ts with that same parole e in that he visited her daily
, transporte d her to a drug treatment f acility on his day off, and conti n u ed to visit her afte r she moved out of his territory ; (3) failing to follow proce dures by leaving urinaly sis cups with a parole e’s g randmother so she could test the parole e; (4) threa

tening to introduce drug s into a parole e’s residenc e, sear ching that residenc e without consent, being rude and abusive to the civilians prese nt, and grabbing the parole e by h i s s h irt and throwing him ag ainst the wall; (5) allowing a parole e to reside in Missouri without formal approva l, tell i n g the parole e not to tell anyone he was letting the
p ar o l ee d o so, and telling the parole e not to use the 800 number and instead to contac t petitioner on his cell phone; (6) providing false information to his supervisor; and (7) having

-3-illega l drug s in his st ate ve hicle whe n it was confisc ated.

¶ 10 This information was made available to the Union during the grieva nce proce ss. CMS also re fe rr ed some incidents to the Montgome ry County State’s Attorney

. Howeve r, the State’s Attorney

declined to c riminally

prosec ute petitioner. ¶ 11 There afte r, the Union g rieve d petitioner’s discharg e. Howeve r, in a Dec ember 2, 2008, letter, the Union notified petitioner i t was not g oing to pursue his gri ev an ce to arbitration. Specifica lly , the letter state d the following : “This is to inform you that, afte r car eful revie w of the fac ts and evidenc e conce rning
your discharg e from the State of I llinois and the resulting g rieva nce, t h e Un i o n has deter mined that your case cannot be succe ssfully argued at arbitra tion. W e forc efully
argued your case in an eff ort to con v i n ce the Employ er to reve rse the discharg e. Howeve r, when manag ement rema ined adama nt and would not modify its position, the Union deter

mined, based on the merits of the case , not to pursue your g rieva nce further .” The Union neg otiated a resolution allowing petitioner to submit a written resignation by Dec ember 15, 2008. Upon rec eipt of petitioner’s resignation, DO C wo u l d purg e his
p er s o n nel records of any mention of di schar g e for cause

. Petitioner rec eived the letter and proposed r esolution on Dece mber 4, 2008. Petitioner did not agreeto the resolution.

¶ 12 B. Petitioner’ s Unfair L abor Pra ctice Cha

rg es ¶ 13 On J une 4, 2009, petitioner filed unfair labor prac tice charg es with the Boa rd ag ainst both CMS and the Union. ¶ 14 The facts underlying both char g es are as follows. Acc ording to petitioner’s cha rg es, in Marc h 2007, petitioner re quested a n arr est war

rant issue on one of his pa rolee s beca

use he did not h av e an ap p roved host site. The parole e was residing with his sister-in-law
, who advis ed petitioner she wanted the parole e out of the residenc e. Petitioner informed his supervisor, who denied his reque st to seek a war rant, advising that the owner of the residenc e should contact the police to have the pa rolee remove d. ¶ 15 On Marc h 31, 2007, petitioner repor ted a suspected incident of abuse to the Depa rtment of Children and Family Service s involving the same parole e. On April 1, 2007, petitioner met with the v i ct im, who repor ted his uncle, petitioner’s parole e, abused him. Ba sed on the
repor t, petitioner ag ain reque sted an arr est war rant, which, acc ording to petitioner’s char g e, his supervisor ag ain re fused. ¶ 16 On April 3, 2007, petitioner was contac t ed b y t h e v i ct i m’s mother, who advised a phy sical examination had confirme d the possibili t y o f abuse. Acc ording to petitioner’s char g e, after he notified his supervisor of this information, hi s supervisor as k ed p et itioner
to backdate repor

ts to cover up what he char acte rized as his supervisor’ s mishandling of the incident. Three wee ks later, petitioner was place d on paid adm inis tra ti v e le a v e a n d eventua lly discharg ed on May

20, 2008.

-4-¶ 17 1. Charge Against CMS

¶ 18 Petitioner’s char g e ag ainst CMS alleg ed the misconduct acc usations wer e prete x tual and he was actua lly discharg ed in r etaliation for ref using to backdate the documents. Petitioner
argued the discharg e amounted to a brea ch of CMS’s contra ct with the Union beca use he was treated differ ently fr om other employ ees in violation of section 10 of the I llinois Public L abor Relations Act (Act) (5 I L CS 315/ 10 (West 2008)). ¶ 19 CMS respon d ed t o p et i t i o n er’s charg e, arguing (1) petitioner failed to state a cla im entitling him to relief beca use his alleg ations had no connec tion to the rights protec ted under the Act; and (2) petitioner’s charg e was untimely beca use he failed to f

ile it within the six

month lim itations period provided for by the Act.

¶ 20 2. Charge Against the Union ¶ 21 Petitioner’s char g e ag ainst the Union al l ege d t h e Un i o n v i o l at ed i t s du t y of fa ir
repr esentation by failing to thoroughly investigate the fac ts o f his case and arbitrate his
g rieva nce. Petitioner alleg ed this failure was motivated by persona l hostili ty beca use the Union repr esentatives believed he had in fac t eng ag ed in the alleg ed acts of misconduct. The Union did not respond to petitioner’s c harg e.

¶ 22 C. Ex ecutive D irec tor’s F indings ¶ 23 Followingan investig ation, the Dire ctor dismissed both of petitioner’s c harg es.

¶ 24 1. Findings W ith Regard to CMS ¶ 25 The Direc tor found the charg e ag ainst CMS untimely under the Act. The Direc tor found, pursuant to section 11(a) of the Act, petitioner had six months from the time he first beca me

awa re of the unfa ir labor practice to file hi s complaint with the Board. The Direc tor found it was undisputed petitioner was awa re of the offe nding conduct at the time of his May 20, 2008, discharg e but waited more than a y ear , until J une 4, 2009, afte r his discharg e to file his char g e. The Direc tor there fore conclude d petitioner’s c laim was untimely

.

¶ 26 2. Findings W ith Regard to the Union ¶ 27 The Direc tor also found no intentional misconduct on the part of the Union under se ction 10(b)( 1) of the A ct. Specific ally , the Dire ctor found the following : “In this case , there is no ev idence [the Union] intentionally took any action either desig ned to r etaliate ag ainst [petit ioner] or due to his status. It is well settled that under Section 6(d) of the Act, and v ar i o us fede ral and state prec edents, the exclusive
repr esentative has a wide rang e of discretion in g rieva nce handling
, and as the Boa rd has previously held, a union’s failure to take all the steps it might have taken to achie ve the result desired by a particula r employ ee does not violate Section 10(b)( 1), unless as noted above, the union’s conduct appea rs to have bee n m o t ivated by vindictiveness, discrimination, or enmity

.

-5-Her ein, [petit ioner] contends that the Union failed to proper ly repr esent him beca use it refuse d to arbitrate his discharg e grie vance

. [P etitioner] arg ues [ the Union’s] ref

usal
to a rbitrate his grieva

nce stemmed solely from the f act that its repr esentatives believed he committed the wrong ful acts with which he h ad b ee n charg ed. This argument is meritless, as there is no evidenc e of disp ar at e t re at ment. In other words, if there was animosity betw ee n [ p etitioner] and the Union’s repr esentatives, due to their belief he committed the misconduct with which he had been charg ed, there is no evidenc e t hat such animosi ty played a role in the Union’s proce ssing of his g rieva nce. Howeve r, t he Union nece ssarily had to assess the fac ts and circ umstances of [petit ioner’s] case , including evidenc e [C MS] contende d proved he filed false repor ts, violated the civil rig hts of citi zens and parolees, and used excessive for ce in c arr y ing out his dut ies; and evaluate whether g i ven that evidenc e, it could convince an arbitrator to reve rse the discharg e. [The Union] conclude d that it could not overc ome the State’s case , and while its decision in this reg ard may have been incorre ct, as [petit ioner] contends, there is no evidenc e that its assessment was motivated by vindictiveness, discrimination, or enmity
, and there fore
, its failure to arbitrate [petit ioner’s] g ri ev ance , or otherwise take all the steps it might have taken to achie ve the results desired by him, does not violate the Act.” Miche ls , 28 PERI¶ 12, at 41.

¶ 28 D. B oard’ s Dec ision ¶ 29 Petitioner appea led the Direc tor’s decisions to the Boa rd, arguing hi s J u n e 4
, 2 0 0 8
, char g e ag ainst CMS was timely beca use it was filed w ithin si x months of his Dece mber 4, 2008, rec eipt of the Union’s letter notifying him of its decision not to pursue his gr ievanc e to arbitrat i o n

. P et i tioner also argued sufficie nt evidenc e supported his charg e ag ainst the Union to warr ant an e videntiary hearing. ¶ 30 On J une 15, 2011, the Boa rd aff irmed t h e Di re ct o r’ s dismiss al of petitioner’s c harg es ag ainst CMS and the Union. ¶ 31 These a

ppeals followe d.

¶ 32 I I . ANALYSI S ¶ 33 On appeal, petit ioner argues (1) t h e u n fair labor practices complaint ag ainst CMS was timely filed (No. 4-11-0612) and (2) he raised sufficie nt fac ts to war rant issuance of an unfair labor pra ctice c omplaint ag ainst the Union (No. 4- 11-0659). We disagree

.

¶ 34 A. B oard’ s Dec ision To Dismi ss Petiti oner’ s Unfair

L abor Pra ctice Cha

rg e Ag ainst CMS Be cause It Was Untim ely ¶ 35 Petitioner argues the B oard e rre d in dismiss ing his unfair labor practice c harg e ag ainst CMS as untimely

. Petitioner rec ognizes a six -month statute of limit ations applies but contends that six -month period did not beg in to run until Dec ember 4, 2008, when the Union notified him it was not goingto pursue his grieva nce to a rbitration. ¶ 36 CMS argues petitioner’s char g e was untimely wher e he failed to file it within six months

-6-of his discharg e. CMS contends the six -month period beg an to run when he first beca me

awa re of the c ircumstance s upon which he ba ses his char g e, i.e. , May 20, 2008, the day

he was discha

rg ed. We agree with CMS

. ¶ 37 We note there is no dispute reg arding the date petitioner was discharg ed or when he filed his char g es with the Boa

rd. The application of a statute of limit ations period is a question of law, which we revie w de novo

. See Travelers Casualty & Surety Co. v. Bowman
, 229 I ll. 2d 461, 466, 893 N.E.2d 583, 587 (2008)

. ¶ 38 “No complaint of an unfair labor prac tice may issue based upon an unfair labor prac tice

occur ring more than six months pri or to the filing of a charg e with the Boa rd unless the
ag g rieve d party did not rea sonably have knowledg e of the alleg ed u n fa ir labor prac tice.” Chicago Joint Board, Local 200, Retail, W holesale & Departme nt Store Un i o n v. Illinois Labor Relations Board
, 2011 I L App (1st) 101497, ¶ 22, 951 N.E.2d 1164 (citing 5 I L CS 315/11(a) (West 2004)). “The six -month filing period beg ins to run when the charg ing party lear ns o r h as n o t i ce of the actions which constitute the alleg ed unfair labor prac tice.” Chicago Joint Board
, 2011 I L App (1st) 101497, ¶ 22, 951 N.E.2d 1164 (filing period beg ins
to run even if the ch ar ging party does not know the leg al signific ance of the acts that constitute the alleg ed unfair labor p ra ctice (citing Moore v. Illinois State Labor Relations Board , 206 I ll. App. 3d 327, 335, 564 N.E.2d 213, 218-19 (1990) )). ¶ 39 In this case , petitioner does not argue he was unawa re of the circ umstances surrounding his May 20, 2008, d i s ch ar ge, upon which he bases his charg e ag ainst CMS. Instead, petitioner contends the limit ations period did not start to run until the date the Union notified him it was not g oing to pursue his grieva nce, i.e.
, Dec ember 4, 2008. Petitioner argues, without citation to rele vant authority
, he was require d to exhaust hi s grieva nce pr ocedur es befor e bring ing an unfair labo r p ractice charg e ag ainst CMS. In fac t, none of the case s petitioner cites involve administrative proce eding s befor e the Boa rd or otherwise addre ss the Act’s six -month limit ations period. Further , this court has previously found not hing in the Act require s the g rieva

nce proce dure must be completed befor e an ag g rieve d union member
may file an unfair labor prac tice charg e ag ainst his union. See Moore
, 206 I ll. App. 3d at 337, 564 N.E.2d at 219 (the g rieva nce proce dure does not prec lude bring i n g an other separ ate action). We see no distinction wher e, as here
, the charg e soug ht to be filed was ag ainst CMS. ¶ 40 Her e, petitioner cannot rea sonably argue he did not have knowledg e of the basis for his discharg e on May 20, 2008. Pursuant to section 11(a) of the Act, petitioner had six months from May 20, 2008, to file his unfair labor prac tice charg e ag ainst CMS . He did not do so. Instead, petitioner waited until J une 4, 2009, to file the charg e, which was clea rly beyond the Act’s six -month limit ations peri o d. Thus, the Boa rd did not err in dismiss ing petitioner’s char g e ag ainst CMS as untimely

.

¶ 41 B. B oard’ s Dec ision To Dismi ss Petiti oner’ s Charg e

the Union Violated Its Duty of F air Repr esentation ¶ 42 Petitioner argues he raised sufficie nt fac ts to war rant issuance of an unfair labor pra ctice complaint ag ainst the Union. We disag ree

.

-7-¶ 43 1. Standard of Review

¶ 44 Section 11(a) of the Act (5 I L C S 3 1 5 / 1 1 (a ) (W es t 2 0 0 8 )) require s the Boa rd to investigate char g es of unfair labor prac tices. When investigating such a charg e, the Boa rd is analog ous to a g rand jury

. Murry v. Ameri can Fede ration of State, County & Municipal Employe es, Local 1111
, 305 I ll. App. 3d 627, 633, 712 N.E.2d 874, 878 (1999). L ike a g rand jury
, the Boa

rd assesses the cre dibilit y of witnesses; draw s infere nces from the fac ts; and, in
g ener al, decide s whether there is enough evidenc e to support the charg e. Murry
, 305 I ll. App. 3d at 633, 712 N.E.2d at 878-79. I f the Bo ar d fi n ds an issue of law or fac t sufficie nt to

war rant a heari n g, t h e Boa

rd will issue a complaint setting forth the issues that war rant a hearing. 5 I L CS 315/11(a) (West 2008); 80 I ll. Adm. Code 1220.40(a) (3) (2012). Howeve r, the Boa rd will dismiss the char g e if th e ch ar ge fa i l s to state a claim on its fac e or the investigation reve als no issue of law or fac t sufficie nt to war rant a hearing. 80 I ll. Adm. Code 1220.40(a) (4) ( 2012). ¶ 45 When deciding whethe r t h er e i s en oug h evidenc e to justify a hearing, the Boa rd must exercise its discretion or judgme nt. It is within the sound discretion of the Boa rd to dismiss

an unfair labor prac tice char g e. See Macom b Education Ass’n v. Illinois Educational Labor Relations Board
, 265 I ll. App. 3d 194, 202, 638 N.E

. 2 d 2 48, 254 (1994); Grave s v. Chief Legal Counsel ofthe Departme nt of Human Rights
, 327 I ll. App. 3d 293, 295-96, 762 N.E.2d 722, 724 (2002) (finding abuse of discretion standard applied instead of clearly err oneous standard wher e the dismiss al of the charg e was at the investigatory stag e of the proce eding s). Thus, if the Boa

rd decide s there is not enough evidenc e and dismiss es the charg e, we ask whether it abused its discretion. Murry
, 305 I ll. App. 3d at 634, 712 N.E.2d at 879; Dee n v. Lusti g , 3 3 7 I ll. App. 3d 294, 302, 785 N.E.2d 521, 529 (2003). The Boa rd abuses its discretion only wher e its decision t o d i s m i s s t h e charg e is clea rly illogica l. See Long v. Mathew
, 336 I ll. App. 3d 595, 600, 783 N.E.2d 1076, 10 8 0 (2003). The fac t we may have

rea ched a differ ent decision than the Boa rd is not, by itself, sufficie nt to justify reve rsing the Boa rd’s de cision. See Long , 336 I ll. App. 3d at 600, 783 N.E.2d at 1080. ¶ 46 An abuse of di s cr et i o n i s fo u n d wh en a decision is arbitra ry and rea ched w ithout employing conscie ntious judgme nt or when the decision is c lear ly ag ainst logic

. See Long
, 336 I ll. App. 3 d at 600, 783 N.E.2d at 1080; Dee n , 337 I ll. App. 3d at 302, 785 N.E.2d at 529. Thus, it is not enough for petitioner to make a plausible arg ument on appea l. Instead, petitioner has to establish that no rea sonabl e person could pos sibly take the Boa rd’s view. See In re M

arriage of Schneider , 214 I ll. 2d 152, 173, 824 N.E.2d 177, 189 (2005).

¶ 47 2. The Board Did Not Abuse Its Discretion ¶ 48 A union commits an unfair labor prac tice and violates its duty of fair repr esentation if it commits intentional misconduct in repr esenting an employee. 5 I L CS 315/10(b)(1) (West 2008); Metropolitan Alliance o f P olice v. State of Illinois Labor Relations Board, Local Panel
, 345 I ll. App. 3d 579, 587-88, 803 N.E.2d 119, 125 (2003). To establish intentional misconduct, the char g ing party must pro v e by a preponde ranc e of the evidenc e (1) the union’s conduct was intentional and direc ted at the charg ing party and (2) the intentional action occur

red beca use of and in reta liation for s o m e past activity by the employ ee or

-8-beca use of a nimosit y betwee n the employ ee and t he union’s represe ntatives. Metropolitan All i a n ce o

f P o l i ce , 345 I ll. App. 3d at 588, 803 N.E.2d at 125-26. To establish the s econd element of intentional misconduct, the charg ing party must prove unlawful discrimination by demonstrating by a preponde ranc e of the evidenc e (1) the employee eng ag ed in activities tending to eng ender the animosity of union ag ents, (2) the union was awa re of the employee’ s activities, (3) an adver se repr esenta tion action was taken by the union, and (4) the union took

an adver se action ag ainst the employ ee for discriminatory rea sons. Metropolitan Alliance of Police , 345 I ll. App. 3d at 588-89, 803 N.E.2d at 126. ¶ 49 The sum total of petition er ’s ar gu m en t on appea l amounts to the following . Petitioner
argues the Union “har

bored a hostili ty” toward h i m beca use it believed he committed a crime, “whi ch t h e State’s Attorney ref used to acknow ledg e” by not prosec uting him. Petitioner also argues the Union “ac ted arbitra rily” by failing to revie w the fac ts “thoroughly and completely .” Petitioner maintains had the Union conducte d a complete investigation, it would have discovere d fac ts showing he was not being discharg ed for cause but in reta liation for ref using to backda

te documents. Acc ording to petitioner, this failure to conduct a complete investigation impermissibly treated him differ ently from other Union employ ees. L ikewise, pe titioner contends the Union’ s failure to arbitrate his grieva nce w as intentional and invidious based on CMS’s reta liation ag ainst him for his ref usal to backdate documents. ¶ 50 Howeve r, petitioner failed to submit any evidenc e to the Boa rd to support his a

rgument the Union’s decision not to pursue his g rieva nce to arbitration was intentional, invidious, and direc ted at him in reta liation for some past activity

. Metropolitan Alliance of Police
, 345 I ll. App. 3d at 588, 803 N.E.2d at 125-26. Fur ther, petitioner did not provide the Boa rd with any evidenc e the Union harbor ed any animosity

toward him. In fac t, it is unc lear if petitioner’s supervisor was even associate d with the Union or whether that fac t would be at all rele vant to petitioner’s char g es. Ba sed on the rec ord in this case , petitioner’s contention the Union harbor ed hostili ty toward him beca use it believed he was gu i l t y , despite the State’s Attorney ’s decision not to prosec ute him, is mere specula tion and co n

j ectur e. Howeve r, speculation is not the standard. Petitioner has the burden of proving
, by a preponde ranc e of the evidenc e, inter alia
, the Union took an adver se action ag ainst him for discriminatory

rea sons. ¶ 51 Instead of providing evidenc e to the Boa rd, petitioner arg

ues circ ularly the Union failed
to sufficie ntly investiga

te t he facts s urround i n g his discharg e. He knows this beca use, had the Union done so, it would have discovere d he was actua lly discharg ed in reta liation for his ref usal to backd at e d o cu m ents. Howeve r, short of this statement, which he si mply repe ats t h ro u g hout his briefs on appea l, petitioner has failed to make any showing the Union’s decision was based on any thing other than the merits of his case . A re view of the rec ord in this case shows ample evidenc e of petitioner’s alleg ed misconduct. Ba sed on that evidenc e, the Union, exercising its broad discretion, could rea sonably decide it could not succe ed if it pursued petitioner’s g rieva nce to arbitra

tion. See Metropolitan Alliance of P o lice
, 345 I ll. App. 3 d at 588 n.6, 803 N.E.2d at 125 n.6 (sec tion 6(d) of the Act provides substantial discretion to unions in deciding whether to pursue a g rieva nce)

. Acc ording ly
, the Boa rd did not abuse its discretion in dismissi ngpetitioner’s c harg e ag ainst the Union. ¶ 52 Assuming, arguendo
, the Union was in co rr ec t i n i t s as s es sment it could not preva il

-9-befor e an arbitrator, that err or, in and of itself, would not be sufficie nt to find a violation of

i t s duty of fair repr esentation under the Act. See Jones v. Illinois Educationa l L a b o r Relations Board
, 272 I ll. App. 3d 612, 622, 650 N.E.2d 1092, 1099 (1995) (“ ‘[T] he duty of fair repre sentation is not automatically brea ched when a union takes a position contra ry to the interest of some of its members.’ ” (quoting Moore
, 206 I ll. App. 3d at 333, 564 N.E.2d
at 217)). Petitioner, by assuming what he is trying to prove, has failed to rec og nize he neede d
to prese nt evide nce the Union was intentionally discriminating ag ainst him. Petitioner’s conclusory

explanations, withoutmore, a re insuff icient to set aside the B oard’ s decision. ¶ 53 Finally
, we note petitioner also arg ues on appea l the Union v i o l at ed i t s duty to fairly
repr esent him b y n ot providing him with a Union repr esentative when he was int ervie wed by police during the misconduct investigation. Howeve r, the Union activity peti t ioner complains of took place during a November 27, 2007, police interview, i.e.
, prior to his May 20, 2008, discharg e. As previously stated, petitioner had six months from the time he beca me

awa re of the underlying conduct to file an unfair labor prac tice charg e based on that conduct. For the rea son s stated above, petitioner’s J une 4, 2009, charg e in this respe ct was also untimely . See 5 I L CS 315/ 11(a) (West 2008).

¶ 54 I I I . CONCLUSI ON ¶ 55 For the rea sons stated, we aff irm the Boa

rd’s decision to dismiss the cha rge s aga i n s t CMS and the Union.

¶ 56 No. 4-11-0612, A ffirme d. ¶ 57 No. 4-11-0659, A ffirme d.

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