STATE OF ILLINOIS

ILLINOIS LABOR RELATIONS BOARD STATE PANEL

North Riverside Fire Fighters, Local 2714,

Charging Party

and

Village of North Riverside,

Respondent

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ORDER

Case No. S-CA-15-124

On April 18, 2017, Administrative Law Judge Anna Hamburg-Gal, on behalf of the Illinois Labor Relations Board, issued a Recommended Decision and Order in the above-captioned matter .

. No party filed exceptions to the Administrative Law Judge's Recommendation during the time allotted, and at its August 8, 2017 public meeting, the Board, having reviewed the matter, declined to take it up on its own motion.

THEREFORE, pursuant to Section 1200.135(b)(5) of the Board's Rules and Regulations, 80 Ill. Admin. Code §1200.135(b)(5), the parties have waived their exceptions to the Administrative Law Judge's Recommended Decision and Order, and this non-precedential Recommended Decision and Order is final and binding on the parties to this proceeding.

Issued in Chicago, Illinois, this 9th day of August 2017.

ST A TE OF ILLINOIS ILLINO S LABOR RELATIONS BOARD ST TE ANEL

'

General Counsel

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STATE OF ILLINOIS

ILLINOIS LABOR RELATIONS BOARD

STATE PANEL

North Riverside Fire Fighters, Local 2714, )

)

Charging Party )

) Case No. S-CA-15-124

and )

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Village of North Riverside, )

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Respondent )

ADMINISTRATIVE LAW JUDGE’S RECOMMENDED DECISION AND ORDER

On March 23, 2015, the North Riverside Fire Fighters, Local 2714, (Charging Party or

Union) filed a charge with the Illinois Labor Relations Board’s State Panel (Board) alleging that

the Village of North Riverside (Respondent or Village) engaged in unfair labor practices within

the meaning of Sections 10(a)(4), (3), (2) and (1) of the Illinois Public Labor Relations Act (Act)

5 ILCS 315 (2014), as amended. The Union amended its charge on May 15, 2016. The charge

was investigated in accordance with Section 11 of the Act. On April 21, 2016, the Board’s

Executive Director issued a Complaint for Hearing.

On May 6, 2016, the Respondent moved to dismiss the Complaint. The Union filed a

response, and on May 26, 2016, the Respondent filed a reply.

On August 4, 2016, I denied the Respondent’s motion to dismiss via email. However, I

noted that the Respondent could amend its Answer to include the affirmative defenses referenced

in its motion to dismiss.

On August 12, 2016, the Union moved to amend the Complaint. On August 19, 2016, the

Respondent filed a response. On August 24, 2016, I granted the motion in part to correct an

undisputed clerical error in paragraph 13. I denied the Union’s motion in all other respects at that

time, but allowed the Union an opportunity to renew its arguments at hearing.

On November 15, 2016, the Respondent moved to amend its affirmative defenses.

A hearing was conducted on November 17 & 18, 2016, in Chicago, Illinois, at which time

the Union presented evidence in support of the allegations and all parties were given an opportunity

to participate, to adduce relevant evidence, to examine witnesses, and to argue orally. At hearing,

2

I granted the Respondent’s motion to amend its affirmative defenses. The Union renewed its

motion to amend the complaint, and I denied the motion orally.

The parties filed timely post-hearing briefs. After full consideration of the parties’

stipulations, evidence, arguments, and briefs, and upon the entire record of the case, I recommend

the following:

I. PRELIMINARY FINDINGS

The parties stipulate and I find that:

1. At all times material, the Respondent has been subject to the jurisdiction of the State

Panel of the Board, pursuant to Section 5(a-5) of the Act.

2. At all times material, the Respondent has been subject to the Act, pursuant to Section

20(b) of the Act.

3. At all times material, the Union has been a labor organization within the meaning of

Section 3(i) of the Act.

4. At all times material, the Union has been the exclusive representative of a bargaining

unit (Unit) comprised of all full-time Firefighters and Lieutenants employed by the

Respondent, as certified by the Board on June 18, 2003, in Case No. S-RC-03-065, and

thereafter amended.

5. At all times material, the Union and the Respondent have been parties to a collective

bargaining agreement (CBA) effective date commencing May 1, 2009, and expiring

April 30, 2014.

II. ISSUES AND CONTENTIONS

The issues are (1) whether the Respondent violated Sections 10(a)(4), (2), and (1) of the

Act when its Civil Service Commission allegedly failed and refused to issue certificates of

appointment (“certificates”) to unit employees; (2) whether the Respondent, by that same conduct,

independently violated Section 10(a)(1) of the Act; (3) whether the Respondent retaliated and

discriminated against Union President Rick Urbinati, in violation of Sections 10(a)(2) and (1) of

the Act, when Fire Chief Brian Basek issued Urbinati a formal complaint memorandum (“memo”)

stating that Urbinati had violated the chain of command and warning him that future violations

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would result in discipline;1 and (4) whether the Respondent, by that same conduct, independently

violated Section 10(a)(1) of the Act.

The Union asserts the Respondent unilaterally changed employees’ terms and conditions

of employment by failing and refusing to issue certificates of appointment to bargaining unit

employees upon Urbinati’s request for them. It asserts that the Respondent’s issuance of

certificates of appointment is a mandatory subject of bargaining, that the Union demanded to

bargain over their issuance, and that the Respondent refused. Finally, the Union denies that its

charge on this allegation is untimely filed.

The Union also argues that the Respondent retaliated against unit employees when it

refused to issue members certificates of appointment. The Union asserts that the Respondent’s

refusal was an adverse action because the Respondent thereby withheld from unit employees the

job security they otherwise would have enjoyed. The Union contends that the Respondent took

such action because Union members engaged in protected activity, and the Union claims that the

Respondent cannot rebut its prima facie case.

Finally, the Union asserts that the Respondent retaliated against Urbinati when Chief Basek

issued him a memo stating that he had violated the chain of command and that future violations

would result in discipline. The Union asserts that Basek’s memo was an adverse action and that

Basek issued it to retaliate against Urbinati’s protected complaint to the Village Manager, made

on behalf of a fellow employee. The Union asserts that the Respondent failed to present a

legitimate and substantial business interest that overrides Urbinati’s right to engage in protected

concerted activity. The Union likewise contends that this conduct by the Respondent interfered,

restrained, and coerced employees in the exercise of their protected rights.

The Respondent asserts that the Union’s charge is untimely filed as it relates to the

Respondent’s alleged refusal or failure to issue employees certificates of appointment. It reasons

that the Union knew or should have known of employees’ purported entitlement to certificates and

the Respondent’s failure to provide them more than six months prior to the date on which the

Union filed its charge.

1 The Complaint also contains an allegation that the Respondent discriminated against public employees in

violation of Sections 10(a)(3) and (1) of the Act by this same conduct. However, the Union advanced no

argument in support of the Section 10(a)(3) allegation and the derivative Section 10(a)(1) allegation.

Accordingly, these issues are not addressed below.

4

On the merits, the Respondent denies that it unilaterally changed employees’ terms and

conditions of employment when it failed to issue unit employees certificates of appointment. The

Respondent denies that it has a duty to bargain over the issuance of certificates of appointment.

The Respondent also claims that the Union never demanded to bargain; even if it did, the

Respondent never refused that demand. In the alternative, the Respondent asserts that the inaction

of its Civil Service Commission, which issues such certificates, does not violate the Act because

the Union failed to prove that the Commission had authority to act as an agent of the Respondent

concerning collective bargaining matters.

Similarly, the Respondent denies that it retaliated or discriminated against unit employees

when it allegedly failed to issue unit members certificates of appointment. The Respondent denies

that Urbinati’s request for certificates constitutes protected activity, that it had knowledge of

Urbinati’s request, that its failure to issue certificates is an adverse employment action, and that it

acted because of an unlawful motive. In addition, the Respondent contends that it had a legitimate

business reason for failing to issue certificates of appointment because it had no authority to issue

them. The Respondent similarly asserts that its failure to issue certificates did not interfere with,

restrain, or coerce employees in the exercise of their protected rights because unit employees are

not entitled to receive certificates.

Finally, the Respondent denies that it retaliated or discriminated against unit employees

when Chief Basek issued Urbinati a memo stating that he had violated the chain of command and

warning him that future violations would result in discipline. The Respondent denies that Urbinati

engaged in protected activity, that the memo qualifies as an adverse employment action, and that

Basek issued the memo because of union animus. The Respondent further claims that Basek issued

the memo for a legitimate business reason, to enforce the chain of command in its paramilitary

organization and to enforce the collectively bargained grievance procedure. The Respondent

similarly contends that its action did not interfere with, restrain, or coerce employees in the

exercise of their protected rights because the memo merely reinforced the import of a legitimate

work rule.

III. FINDINGS OF FACT

Hubert Hermanek is the Mayor of the Village of North Riverside (Respondent). Mayor

Hermanek presides over the Village Board of Trustees, which has six members.

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The Respondent has a Civil Service Commission. It is responsible for the hiring and

disciplinary procedures of the Respondent’s Police and Fire Departments. The Civil Service

Commission has three commissioners. The Civil Service Commission has authority to act as a

body and can take action only in an open meeting. A majority of the commissioners must approve

a proposed action for it to take effect. Joseph Iniguez served as Chairman of the Civil Service

Commission at all times material until around April 2015.

Brian Basek is the Respondent’s Fire Chief. The Fire Department’s Rules and Regulations

set forth the Fire Department’s organization, administration, and chain of command. The Fire

Department’s chain of command is as follows: Chief, Deputy Chief, Lieutenants, Acting

Lieutenants, Firefighters, Contract Paramedics, and Paid On Calls. The Department does not

currently employ a Deputy Chief.

The Respondent has a policy that states the following in relevant part: “All Paid on Calls,

Paramedics, and Firefighters will take all problems to their respective Lieutenants. If they cannot

be solved, the Lieutenant will bring it to my [the Chief’s] attention…I [the Chief] alone will be the

liaison between all personnel and the Village Administrator.”

All sworn employees of the Respondent’s Fire Department below the Fire Chief are

members of the bargaining unit represented by the North Riverside Fire Fighters, Local 2714

(Union). The contract between the Union and the Respondent had a term of May 1, 2009 to April,

30, 2014.

The parties began negotiating their successor contract before the prior contract’s

expiration. Firefighter and Union President Rick Urbinati made a demand to bargain on the

Union’s behalf in January 2014 and renewed his demand to bargain in February 2014.

On June 24, 2014, at the parties’ first bargaining session, the Respondent asserted that it

would seek to privatize its fire department if the Union did not offer a proposal that matched the

savings the Respondent could obtain through privatization. Village of North Riverside, 33 PERI

¶ 33 (IL LRB-SP 2016).

The parties continued to bargain between July and September, 2014. Id.

On September 9, 2014, the parties met for their final bargaining session and mediation.

Vill. of North Riverside, 33 PERI ¶ 33 (IL-LRB-SP 2016). The Respondent rested on the offer it

had presented at the parties’ prior bargaining session. In that offer, the Respondent proposed to

replace retired municipal firefighters, by attrition, with private contractors and it also proposed to

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use private contractors to perform firefighter overtime.2 Id. That offer represented the

Respondent’s final offer to the Union. Id. The Union presented a counterproposal, which the

Respondent rejected. Id. At the conclusion of the meeting, the Respondent informed the Union,

through the mediator, that it was finished bargaining. Id.

Sometime in September, during the period of time when the parties were still bargaining,

Urbinati introduced himself to Commissioner Iniguez outside Village Hall and raised with him the

subject of certificates of appointment.3 Another bargaining unit member, David Rajk, was also

present. Iniguez had never heard of certificates before and stated he was interested in learning

more. Urbinati stated he would put together a packet of information for Iniguez. Urbinati did not

request certificates of appointment for unit members at this meeting.

The phrase “certificate of appointment” appears in Section 5/10-1-7.1 of the Illinois

Municipal Code (“Code”), entitled “Original appointments; full-time fire department,” which

describes the process that municipalities must follow4 to hire firefighters. 65 ILCS 5/10-1-7.1.

This section became effective on August 4, 2011. It requires municipalities to establish a

firefighter eligibility list, through a specifically-described testing process, and to appoint the

highest ranking individual on the final eligibility list to the new or vacant firefighter position. Id.

The Code states that “[t]he sole authority to issue certificates of appointment shall be vested in the

Civil Service Commission” and that “[e]ach person who accepts a certificate of appointment and

successfully completes his or her probationary period shall be enrolled as a firefighter and as a

regular member of the fire department.” However, this section of the Code does not define the

phrase “certificates of appointment,” nor does any other section of the Code, in which the phrase

2 The offer also contained other terms, which are not relevant to this decision and are not described here. 3

Q: Now, in connection sometime in the period that you were negotiating the contract, did you take

any steps to obtain Certificates of Appointment for yourself and other members of the bargaining

unit?

A: Yes

Q: Can you tell the Hearing Officer what if anything you did?

A: Sometime –I don’t know when it was around, maybe September of 2014, I ran into the Chairman

of the Civil Service Board, Joe Iniguez….I started talking to him about the Certificates.”

Tr. P. 31-32.

4 “Notwithstanding any statute, ordinance, rule, or other law to the contrary, all original appointments to an

affected department to which this Section applies shall be administered in the manner provided for in this

Section.” 65 ILCS 5/10-1-7.1.

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appears.5 It is undisputed that the Respondent did not issue certificates of appointment to unit

firefighters at any time between 1997 and the present.

On October 6, 2014, the Respondent issued firefighters notices of termination. The Union

filed an unfair labor practice charge in Case No. S-CA-15-032 over the Respondent’s decision.6

Vill. of North Riverside, 33 PERI ¶ 33 (IL LRB-SP 2016).

On October 17, 2014, Urbinati drafted a letter to Iniguez requesting certificates of

appointment for all active, full-time sworn firefighters of the Village of North Riverside. Urbinati

enclosed an example of a certificate of appointment and included a section of the Illinois Municipal

Code (65 ILCS 5/10-1-7.1) that addresses original appointments. Urbinati did not request

certificates of appointment from Mayor Hubert Hermanek or from the Trustees of the Village of

North Riverside. Urbinati did not seek to bargain over the Respondent’s issuance of certificates

of appointment.

Urbinati testified that he sought the certificates of appointment because the Respondent

proposed to replace union firefighters with private contractors by attrition. Urbinati suggested that

obtaining certificates of appointment for unit members would strengthen the Union’s argument

that the Respondent could not legally replace union firefighters with private contractors and, in

turn, would increase members’ job security.7 He also suggested that it would help refute the

Respondent’s claim that the private contractors were as qualified as bargaining unit members to

perform firefighting duties. Urbinati stated that Section 10-2.1-4 of the Illinois Municipal Code

(“Substitutes Act”) supported his belief that certificates of appointment would increase bargaining

unit members’ job security. The Substitutes Act prohibits a municipal fire department from

substituting unionized firefighters with individuals who are not qualified for regular appointment

as firefighters, unless the union agrees to the substitution.8

5 The phrase also appears in 65 ILCS 5/10-2.1-4, “Fire and police departments; Appointment of members;

Certificates of appointments” and in 65 ILCS 5/10-2.1-6.3, “Original appointments; full-time fire

department.” 6 To date, the Respondent has not rescinded the notices of termination. 7 Firefighter/EMT John Nalbandian similarly testified that the certificate would give him a sense that his

employment was secure. Nalbandian further stated that he believes that the Respondent owes him the

certificate and that having it is a matter of pride. 8 The Substitutes Act states the following in relevant part:

In any municipal fire department that employs full-time firefighters and is subject to a

collective bargaining agreement, a person who has not qualified for regular appointment

under the provisions of this Division 2.1 shall not be used as a temporary or permanent

8

On October 25, 2014, Urbinati contacted Iniguez via email and informed him that he had

prepared the informational packet he referenced at their September meeting. Urbinati told Iniguez

that he could not scan the packet but that that Iniguez could it pick up at the fire house. Urbinati

also offered to drop it off for Iniguez at the Village Hall. On Sunday, October 26, 2014, Iniguez

stated that he would come to the fire house on Tuesday.

Iniguez did not come to the firehouse on Tuesday, October 28, 2014, but he asked Urbinati

to email him a photo of a sample certificate of appointment. Urbinati did so.

Urbinati testified that he went to the Village Hall the following day and dropped off

informational packets regarding certificates of appointment for both Iniguez and Mayor

Hermanek. He walked up to the desk where people pay their water bills and spoke to the woman

behind the desk. He asked her whether the Civil Service Commission had a mailbox at the Village

Hall. According to Urbinati, the woman said, “no, but I can get [the packet] to [Commissioner

Iniguez].” Urbinati then handed the two packets to the woman behind the desk.

Mayor Hermanek testified that if someone drops off a package for him at the front desk of

Village Hall, the individual at the desk stamps it “received” and hands it to him or places it on his

desk. Hermanek testified that he never received the packet that Urbinati claims to have dropped

off for him at the Village Hall. Urbinati never received correspondence from Hermanek or Iniguez

stating that they had received the packets he dropped off for them at the Village Hall.

On December 29, 2014, Chief Basek met with Lieutenant Mike Wisniewski to discuss his

management of a structure fire at Carson Pirie Scott (“Carson’s”) in November 2014. Basek

informed Wisniewski that there were some deficiencies in his performance and the performance

of his shift at that incident. Basek based his comments on his own observations at the scene and

on comments he received from Carson’s management. Carson’s management informed Basek that

substitute for classified members of a municipality's fire department or for regular

appointment as a classified member of a municipality's fire department unless mutually

agreed to by the employee's certified bargaining agent. Such agreement shall be considered

a permissive subject of bargaining. Municipal fire departments covered by the changes

made by this amendatory Act of the 95th General Assembly that are using non-certificated

employees as substitutes immediately prior to the effective date of this amendatory Act of

the 95th General Assembly may, by mutual agreement with the certified bargaining agent,

continue the existing practice or a modified practice and that agreement shall be considered

a permissive subject of bargaining.

65 ILCS 5/10-2.1-4.

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the fire department broke down the doors instead of using the keys to the building, accessible from

a safe (“Knox Box”) located on site, as they should have done. Carson’s management also

informed Basek that the fire department did not call the key holders, who live nearby, and who

could have prevented damage to the building by opening its doors with the keys.

Wisniewski listened to Basek’s feedback and said that he would discuss the referenced

issues with his shift. Wisniewski did not voice any objections to Basek’s comments and did not

say he would file a grievance.9 Basek also gave Wisniewski a memo with four bullet points that

outlined his concerns about Wisniewski’s response to the fire.

A lieutenant who does not follow protocol is subject to discipline. However, Basek

testified that the memo he issued Wisniewski merely documented his observation of the shift’s

performance at the fire and did not constitute discipline.

Wisniewski brought the memo to Urbinati’s attention. Urbinati testified that Wisniewski

was concerned about it and wanted Urbinati to follow up on it.

On December 30, 2014, Urbinati met with Village Administrator Guy Belmonte to discuss

Basek’s memo to Wisniewski and to give him a copy of it. Urbinati did not tell Basek that he

planned to speak to Belmonte about Basek’s memo. Wisniewski, the Lieutenant on shift on

December 30, 2014, also did not tell Basek that Urbinati planned to discuss the memo with

Belmonte.

Urbinati and Belmonte give different accounts of their meeting. Urbinati asserts that he

and Belmonte spoke for two minutes outside the firehouse, shortly before his shift began at 7:30

a.m. that morning. Belmonte testified that he and Urbinati spoke for approximately 15 to 20

minutes at Belmonte’s office in the Village Commons, and that the conversation must have

occurred sometime after 8:00 a.m. because that is when Belmonte arrives at his office.

Around January 6, 2015, Village Administrator Guy Belmonte called Chief Basek.

Belmonte informed Basek that he had received a copy of Basek’s memo from Urbinati. Basek

was upset that Urbinati had given the memo to Belmonte because Basek wanted to keep the matter

“in-house” and sought address performance issues with the shift alone.

Basek discussed the matter with Respondent attorney Cary Horvath, and together they

drafted a document that Basek issued to Urbinati on January 8, 2015. The document was entitled

“Departmental Correspondence.” It stated that on December 30, 2014, Urbinati violated the

9 Union members do not always tell Basek when they will file grievances.

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Department’s chain of command by complaining directly to Village Administrator Belmonte about

a correspondence that Basek wrote to Wisniewski concerning his shift’s performance at Carson’s.

It stated the following:

On December 30, 2014, you violated the department Chain of Command by

complaining directly to Village Administrator Belmonte about a correspondence I

wrote to Lt. Wisniewski concerning his shift’s performance at the fire at the Carson

Pirie Scott store. The correspondence was not addressed to you, did not concern

you and did not concern the Union.

As you know, if you have an issue or complaint concerning a departmental matter,

you are required to follow the Chain of Command. In this case, you were required

to first address any concerns you had to me and not the Village Administrator. You

failed to do this for no reason whatsoever.

This memo is notice to you that any future violation by you to follow the established

Chain of Command will result in discipline. Please govern yourself accordingly.

Basek gave the memo to Urbinati, explained that he had violated the chain of command,

and warned Urbinati that he would receive discipline if he did it again. Basek did not discipline

Urbinati for approaching Belmonte about Basek’s memo to Wisniewski. Basek did not place a

copy of the memo in Urbinati’s personnel file. However, Basek testified that if Urbinati engaged

in the same conduct again, he would issue Urbinati an oral warning and place documentation of

the oral warning in Urbinati’s personnel file.

Around January or February 2015, Urbinati met Iniguez outside the Village Hall. Urbinati

asked him whether he would issue unit members the certificates of appointment. Iniguez stated

that it “was on the back burner.” Urbinati concluded shortly after his conversation with Iniguez

that the Civil Service Commission would not issue firefighters certificates of appointment.

Urbinati did not contact the other Commissioners of the Civil Service Commission

regarding the certifications of appointment. The Village Board has never taken official action to

deny issuance of certificates of appointment to the members of the fire department. However,

Hermanek admitted that Urbinati requested that he ask the Civil Service Commission to issue

employees certificates of appointment. Hermanek responded that he did not believe that there was

a reason to do so.

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On February 10, 2015, Urbinati sent Basek a letter on union stationary, commenting on

Basek’s January 8, 2014 memo to Urbinati.10 The letter disputed Basek’s statement that Basek’s

memo to Wisniewski was a “non-union issue.” Urbinati stated that Wisniewski and his shift

viewed the memo as derogatory and noted that they had brought the memo to the Union’s attention.

The letter further noted the following in relevant part:

Per Rule 13 in the Fire Department Rules and Regulations along with the Personnel

Rules and Regulations Chapter 1, Section 1.3(b), all complaints when violation is

from immediate supervisor or Fire Chief then notification [sic] is to be made to the

Village Administrator.

The Collectively [sic] bargained agreement made between the Village and the

Union on December 24, 2014 allows for the Union President to meet with the

Village Administrator regarding Union Business.

The Union did not introduce into evidence Rule 13 of the Fire Department Rules and

Regulations. Basek testified that, as a general matter, union members should speak to him about

an issue before filing a formal grievance to see if he can resolve the matter. The parties’ expired

contract also provides that a first step grievance must be filed with the Fire Chief or his designee.

IV. DISCUSSION AND ANALYSIS

1. Timeliness

i. Unilateral Change Allegation

The Union’s charge is untimely filed with respect to the allegation that the Respondent

unilaterally changed employees’ terms and conditions of employment by failing to issue them

certificates of appointment.

10 Urbinati’s letter asserts that Basek handed him the memo in question on December 30, 2014, when in

fact Basek delivered it to Urbinati on January 8, 2015. In addition, at hearing, Urbinati initially identified

a different document as the one he handed to Basek. On cross examination, he clarified that the identified

letter was his own copy and that he believed the copy he sent to Basek had the same wording. In fact, that

document had different wording.10 In addition it had a different date and was not printed on Union

letterhead. On redirect, Urbinati explained that he could not find the original letter that he gave to Basek,

when preparing for the unfair labor practice hearing, and that he therefore printed out a copy from his

computer. Urbinati stated that there were differences between the original letter and the one he printed

because he works off of two computers and the copies of a document do not always get updated on both

computers.

12

Pursuant to Section 11(a) of the Act, “no complaint shall issue based upon any unfair labor

practice occurring more than six months prior to the filing of a charge with the Board...unless the

person aggrieved thereby did not reasonably have knowledge of the alleged unfair labor practice.”

The six-month limitation period begins to run when a charging party has knowledge of the alleged

unlawful conduct or reasonably should have known of it. Moore v. Ill. State Labor Rel. Bd., 206

Ill. App. 3d 327, 335 (4th Dist. 1990); Serv. Empl. Int’l Union. Local 46 (Evans), 16 PERI ¶ 3020

(IL LLRB 2000).

Since the Union filed its charge on March 23, 2015, the charge must be deemed untimely

filed if the Union new or should have known, prior to September 23, 2014, of the Respondent’s

failure to issue employees certificates of appointment.

Here, the Union indisputably knew, prior to September 23, 2014, of at least one instance

in which the Respondent failed to issue a certificate of appointment. Specifically, Union President

Urbinati knew that the Respondent had never issued him a certificate, even though the Respondent

had hired him many years earlier, in 1996. Accordingly, the Union President knew well outside

the limitation period that the Respondent had failed to perform its alleged obligation to issue at

least one certificate of appointment.

In addition, the evidence strongly indicates that the Union also knew, prior to September

23, 2014, of the Respondent’s failure to issue certificates of appointment to all other bargaining

unit members because Urbinati took steps to obtain certificates of appointment for all unit

employees before that date. Urbinati testified that he initiated the process to obtain certificates for

unit members when he approached Iniguez outside Village Hall sometime in September.

Although Urbinati could not supply a precise date for his first contact with Iniguez, his testimony

indicates that it occurred on or before September 9, 2014, the date on which the Respondent

declared impasse and stopped bargaining. Urbinati answered in the affirmative when his attorney

asked whether the meeting “occurred sometime in the period that [the Union] was negotiating the

contract.” Yet the parties were no longer negotiating their contract after September 9, 2014

because the Respondent declared impasse on that date. Accordingly, the meeting must have

occurred prior to September 9, 2014—outside the limitation period—because it happened while

the parties were still negotiating.

There is no merit to the Union’s claim that the Respondent made a unilateral change only

in early 2015 when Commissioner Iniguez stated that Urbinati’s request for certificates was “on

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the back burner.” Courts have held that “where a complaint based upon an earlier unlawful event

is time barred, a refusal to bargain over the same matter will neither revive a legally defunct unfair

labor practice nor constitute an independent unfair labor practice for the purpose of triggering a

new six-month limitation period.” Wapella Educ. Ass'n, IEA-NEA v. Illinois Educ. Labor

Relations Bd., 177 Ill. App. 3d 153, 169 (4th Dist. 1988). Here, the Union’s complaint alleges

that the Respondent unilaterally changed employees’ terms and conditions of employment by

failing to issue unit employees certificates of appointment. The Union knew of the Respondent’s

failure to issue on or before September 9, 2014. Applying the Court’s reasoning in Wapella to

these facts, Iniguez’s implicit denial of Urbinati’s later request for certificates in 2015 cannot

revive the otherwise untimely charge because it does not qualify as a separate refusal to bargain.

There is likewise no merit to the Union’s claim that the charge is timely on the grounds

that the Union has a statutory right to bargain over the Respondent’s issuance of certificates of

appointment. The Union’s asserted claim of a statutory right to bargain is irrelevant unless the

Union can independently demonstrate that its charge is timely filed. It has not done so here.11

In sum, the Union’s unilateral change allegation is untimely filed because the Union knew

of the Respondent’s failure to issue certificates of appointment outside the limitation period.

ii. Alleged Violations of Sections 10(a)(2) and (1) and Alleged Independent

Violation of Section 10(a)(1) Based on Respondent’s Alleged Failure to

Issue Certificates of Appointment

The Union’s charge is similarly untimely filed with respect to the allegations that (1) the

Respondent retaliated or discriminated against unit employees when it failed or refused to issue

them certificates of appointment, in violation of Sections 10(a)(2) and (1) of the Act, and (2) that

the Respondent interfered, restrained, and coerced unit employees by that same conduct, in

violation of Section 10(a)(1) of the Act.

In cases alleging retaliation or discrimination, the six-month limitation period begins to run

when the charging party knows or should know of the alleged discriminatory or retaliatory act.

Wapella Educ. Ass’n, IEA-NEA, 177 Ill. App. 3d at 169 (discussing federal precedent addressing

timeliness with respect to adverse actions and applying that case law to alleged unilateral changes)

11 The Union also notes that its members have a right under the Civil Service Act to receive certificates of

appointment, but it does not indicate how such an alleged right impacts the timeliness analysis under the

IPLRA.

14

(citing Delaware State College v. Ricks, 449 U.S. 250 (1980)); Vill. of Glenwood, 32 PERI ¶ 159

(IL LRB-SP 2016) (affirming finding that discrimination/retaliation allegation was untimely filed

on similar grounds). The alleged discriminatory act in this case is the Respondent’s alleged failure

or refusal to issue unit employees certificates of appointment. The Union’s knowledge of that

allegedly discriminatory act necessarily also determines the timeliness of that alleged independent

violation of Section 10(a)(1) of the Act, on which it is based.

Since the Union filed its charge on March 23, 2015, the charge must be deemed untimely

filed if the Union new or should have known of the alleged refusal to issue certificates of

appointment before September 23, 2014.

As discussed above, the Union knew on or before September 9, 2014, that the Respondent

failed and refused to issue unit employees certificates of appointment. Accordingly, the Union

should have filed a charge based on this conduct earlier than March 23, 2015.

Contrary to the Union’s claim, and as noted above, the Respondent’s repeated failure to

provide certificates of appointment within the limitation period does not render the charge timely

filed. Indeed, the Union can point to no new adverse action within the limitation period that the

Union did not already know of outside the limitation period. Delaware State College v. Ricks, 449

U.S. 250 (1980).

Thus, the Union’s claim is untimely filed as to the allegation that the Respondent retaliated

or discriminated against unit employees by failing or refusing to issue them certificates of

appointment. It is also untimely filed as to the allegation that the Respondent interfered, restrained,

or coerced employees by that same conduct.

2. Sections 10(a)(2) and (1) - Alleged Formal Complaint Against Urbinati

The Respondent did not violate Sections 10(a)(2) and (1) of the Act when Basek issued

Urbinati a memo stating that he violated the chain of command because the memo is not an adverse

employment action.

To establish a prima facie case that the employer violated Section 10(a)(2) of the Act, the

charging party must prove by a preponderance of the evidence that: (1) that an employee engaged

in union or protected, concerted activity, (2) the employer was aware of that activity, and (3) the

employer took adverse action against the employee in whole or in part because of union animus or

that it was motivated by the employee’s protected activity. City of Burbank v. Ill. State Labor Rel.

15

Bd., 128 Ill. 2d 335, 345 (1989). The charging party may demonstrate the employer’s animus

through circumstantial or direct evidence including expressions of hostility toward union activity,

together with knowledge of the employee's union activities; timing; disparate treatment or

targeting of union supporters; inconsistencies in the reasons offered by the employer for the

adverse action; and shifting explanations for the adverse action. Id.

Once the charging party establishes a prima facie case, the employer can avoid a finding

that it violated the Act by demonstrating that it would have taken the adverse action for a legitimate

business reason, notwithstanding the employer’s union animus. Id. Merely proffering a legitimate

business reason for the adverse employment action does not end the inquiry, as it must be

determined whether the proffered reason is bona fide or pretextual. Id. If the proffered reasons are

merely litigation figments or were not in fact relied upon, then the employer’s reasons are

pretextual and the inquiry ends. Id. However, when legitimate reasons for the adverse employment

action are advanced, and are found to be relied upon at least in part, then the case may be

characterized as a “dual motive” case, and the employer must establish, by a preponderance of the

evidence, that it would have taken the action notwithstanding the employee's union activity. Id.

Urbinati engaged in union or protected concerted activity because he filed grievances,

served as union president, and participated in negotiations on behalf of the Union.12 Pace Suburban

Bus Division of the Regional Transportation Authority v. Illinois Labor Relations Board, 406 Ill.

App. 3d 484, 495 (1st Dist. 2010)(filing grievances is protected activity); N. Shore Sanitary Dist.

v. Illinois State Labor Relations Bd., 262 Ill. App. 3d 279, 288 (2d Dist. 1994)(participating on

union’s negotiating team is protected union activity); Bd. of Educ. of Schaumburg Comm.

Consolidated School Dist. 54 v. Ill. Educ. Labor Rel. Bd., 247 Ill. App. 3d 439, 455 (1st Dist.

1993)(employee engaged in concerted activity when he acts with or on the authority of other

employees); City of Princeton (Fire Department), 22 PERI ¶ 139 (IL LRB-SP 2006)(serving as

union president is protected union activity); Bd. of Educ. of Schaumburg Comm. Consolidated

School Dist. 54, 247 Ill. App. 3d at 455.

However, as a threshold matter, the Respondent did not take adverse action against Urbinati

when Basek issued him the memo on January 8, 2015, which stated that he violated the chain of

command. The definition of an adverse employment action is generous; the union need only show

some qualitative change in the terms or conditions of employment or some sort of real harm. City

12 The Respondent in its Answer admits that Urbinati engaged in these activities.

16

of Lake Forest, 29 PERI ¶ 52 (IL LRB-SP 2012) (employee suffered no adverse employment

action from negative comments made by management). An action does not need to have an

adverse tangible result or adverse financial consequences to constitute adverse employment action

sufficient to satisfy the third prong of the 10(a)(2)-type analysis. City of Chicago v. Ill. Local

Labor Rel. Bd., 182 Ill. App. 3d 588, 594-95 (1st Dist. 1988).

Here, there is insufficient evidence that Basek’s memo had any impact on Urbinati’s

employment at all. Although Basek warned Urbinati in writing that future, similar conduct would

result in discipline, that written warning had the same effect as a verbal counseling because Basek

did not place the document in Urbinati’s personnel file. City of Elmhurst, 17 PERI ¶ 2040 (IL

LRB-SP 2001) (verbal counseling was not adverse action). Certainly, the written format of the

warning, and Basek’s consultation with counsel in preparing it, indicates that Basek took the

warning seriously. Nevertheless, the Board has repeatedly focused on an employer’s

documentation of a warning in (or on) a personnel file to determine whether it constitutes an

adverse action. Indeed, without such documentation and with the passage of time, an employer

could forget the incident altogether and would have no preserved record of the prior occurrence.

Compare City of Chicago (Dep’t of Bldg.), 15 PERI ¶3012 (IL LLRB 1999) (written reprimand

was not adverse where it was never placed in the employee's personnel file) and Chicago Transit

Authority, 19 PERI ¶ 34 (IL LLRB 2003) (informal oral warning was an adverse action where

employer recorded it on employee’s “personnel jacket” for future reference, even though employer

did not categorize it as discipline).

In the absence of any adverse employment action, it is unnecessary to address the

remaining prongs of the test.

In sum, the Respondent did not violate Sections 10(a)(2) and (1) of the Act when Basek

issued Urbinati the January 8, 2015 warning memo.

3. Section 10(a)(1) – Interference, Restraint and Coercion of Employees in the

Exercise of their Protected Rights

The Respondent violated Section 10(a)(1) of the Act when it threatened Urbinati with

discipline for speaking directly with Village Administrator Belmonte about the memo that Basek

issued Wisniewski.

17

A respondent violates section 10(a)(1) of the Act when it engages in conduct which

reasonably tends to interfere with, restrain, or coerce employees in the exercise of rights protected

by the Act. City of Lake Forest, 29 PERI ¶ 52; City of Mattoon, 11 PERI ¶ 2016 (IL SLRB

1995); Clerk of the Circuit Court of Cook Cnty., 7 PERI ¶ 2019 (IL SLRB 1991); Ill., Dep’t. of

Cent. Mgmt. Servs. (Dept. of Conservation), 2 PERI ¶ 2032 (IL SLRB 1986); City of Chi., 3 PERI

¶ 3011 (IL LLRB 1987). A violation of Section 10(a)(1) does not depend on the employer’s

motive. City of Mattoon, 11 PERI ¶ 2016; Ill., Dep’t. of Cent. Mgmt. Servs. (Dept. of

Conservation), 2 PERI ¶ 2032. Instead, the test is whether the employer’s conduct, viewed

objectively from the standpoint of a reasonable employee, had a tendency to interfere with, restrain

or coerce the employee in the exercise of a right guaranteed by the Act. Clerk of the Circuit Court,

7 PERI ¶ 2019; Ill., Dep’t. of Cent. Mgmt. Servs. (Dept. of Conservation), 2 PERI ¶ 2032.

There is no requirement of proof that the employees were actually coerced or that the

employer intended to coerce the employees. Vill. of Calumet Park, 23 PERI ¶ 108 (IL LRB-SP

2007); City of Evanston, 5 PERI ¶ 2041 (IL SLRB H.O. 1989); City of Freeport, 3 PERI ¶ 2046

(IL SLRB H.O. 1987). Employer statements to employees which contain threats of reprisal violate

Section 10(a)(1). Vill. of Calumet Park, 23 PERI ¶ 108 (citing Vill. of Calumet Park, 22 PERI ¶

23 (IL SLRB 2005)); City of Highland Park, 18 PERI ¶ 2012 (IL SLRB 2002); City of Chi.

(Mulligan), 11 PERI ¶ 3008 (IL LLRB 1995); City of Chi. (Chi. Police Dep’t), 3 PERI ¶ 3028 (IL

LLRB 1987); City of Freeport, 3 PERI ¶ 2046. The Board has held that a threat violates Section

10(a)(1) if a reasonable employee would anticipate adverse consequences if he continued

participating in protected concerted activities, regardless of whether any specific employee

actually reached that conclusion. Clerk of the Court of Cook County, 7 PERI ¶ 2019.

Here, Basek’s threat would cause a reasonable employee to anticipate adverse

consequences if the employee continued to participate in protected concerted activity because the

impetus for Basek’s threat was Urbinati’s protected activity. First, Urbinati engaged in protected

activity when he submitted a complaint, i.e., a grievance, to Village Administrator Belmonte

concerning Basek’s allegedly derogatory memo to Lieutenant Wisniewski. It is undisputed that

submitting a grievance is protected activity. Pace Suburban Bus Division of the Regional

Transportation Authority, 406 Ill. App. 3d at 495. The term “grievance” refers to any complaint

by an employee concerning any aspect of the employment relationship. City of Freeport, 135 Ill.

2d 499, 530 (1990). Urbinati’s complaint to Belmonte falls clearly within this definition because

18

he brought a concern to Belmonte about the allegedly derogatory manner in which Chief Basek

addressed Lieutenant Wisniewski’s work performance during a fire. Indeed, Basek himself

characterized Urbinati’s conversation with Belmonte as a complaint.

In turn, Basek threatened Urbinati with discipline because of that grievance. Basek’s

January 8, 2014 correspondence to Urbinati referenced his grievance and threatened that he would

impose discipline on Urbinati if he made another such direct complaint to the Village

Administrator.

The Respondent suggests that Basek threatened Urbinati, not because of the grievance itself

but because he violated the rules, and that a reasonable employee would know the difference, but

the Respondent cannot separate the two in this case. Indeed, Basek would have had no occasion

to threaten Urbinati with discipline had Urbinati not complained to Village Administrator

Belmonte.

Moreover, the Respondent should not be permitted to threaten future discipline based on

Urbinati’s direct complaint to Belmonte where it could not lawfully impose discipline under those

same circumstances. Here, Urbinati’s complaint to Belmonte remains protected even if he

violated the chain of command and the threat of discipline for that rule violation is no more lawful

than the imposition of actual discipline under identical circumstances.

Where an “employer contends that the employee has engaged in unprotected misconduct

in the course of otherwise protected activity,” as the Respondent does in this case, “an employee

does not lose the protection of the Act unless his misconduct is so violent or of such character as

to render the employee unfit for further service.” Dep’t of Cent. Mgmt. Servs. (State Police), 30

PERI ¶ 70 (IL LRB-SP 2013); Chicago Transit Authority, 30 PERI ¶ 9 (IL LRB-LP 2013); Vill.

of Bensenville, 10 PERI ¶ 2009 (IL SLRB 1993). The Board has further noted that the “rights of

employees to engage in protected activity should prevail unless the employer can demonstrate

special circumstances indicating a restriction on activity is necessary for the maintenance of safety,

efficiency or discipline.” Dep’t of Cent. Mgmt. Servs. (State Police), 30 PERI ¶ 70;

Chicago Transit Authority, 30 PERI ¶ 9; Vill. of Bensenville, 10 PERI ¶ 2009; see also Southwest

Florida PBA v. City of Northport, 15 FPER ¶ 20179 (FL PERC 1989) (employees who sought

redress of working conditions outside chain of command engaged in protected conduct absent

evidence of disruption to city's operations); Suwanee County, 26 FPER ¶ 31165 (FL PERC

2000)(employee who circumvented chain of command to speak with city commissioner about

19

work-related issue did not lose protection of the labor act, even though he did not follow the

contract’s established grievance procedure).

Here, Urbinati’s failure to follow the chain of command did not cause disruption to the Fire

Department’s operations and the Respondent has illustrated no special circumstances to indicate

that a restriction on Urbinati’s protected activity would be necessary for the maintenance of safety,

efficiency, or discipline. The Respondent’s nod to its paramilitary structure is insufficient to basis

on which to find that Urbinati’s grievance lost its protection. Dep’t of Cent. Mgmt. Servs. (State

Police), 30 PERI ¶ 70 (finding for union on Section 10(a)(1) claim despite claim that employee

violated rules of the Illinois State Police); see also Southwest Florida PBA v. City of Northport,

15 FPER ¶ 20179 (rejecting city’s contention that the Florida labor statute “must give way to City's

need to strictly enforce its paramilitary chain of command to prevent disruption to the operations

of its police department”).

The Respondent’s claimed need to assure that employees remain on premises during their

shift also does not constitute a special circumstance that would justify a restriction on Urbinati’s

protected activity. First, the evidence indicates that Urbinati did not in fact leave his shift. Urbinati

credibly testified that he spoke to the Village Manager before his shift, not during it. The

Respondent seeks to impugn the credibility of Urbinati’s claim by placing emphasis on Urbinati’s

misidentification of a document he created in response to the memo and the Village Manager’s

conflicting testimony. Yet, the Respondent’s own claim that Urbinati left during his shift is belied

by the fact that Basek never mentioned it in his warning memo to Urbinati. Surely, had Urbinati

left his shift when making his complaint to the Village Administrator, Basek and the attorneys who

aided him would have referenced that additional misconduct in the memo that cited the separate

yet concurrent violation of the chain of command.

Second, even if the Board determines that Urbinati left the firehouse during his shift, it is

difficult to in this case to find that the Respondent’s interest in ensuring Urbinati’s presence would

justify a restriction on his protected activity where the Respondent itself did not treat it as a breach

of protocol. None of the Respondent’s agents informed Urbinati that he made an unauthorized

departure from his shift or reprimanded him for it, at the time it allegedly occurred. Rather, the

Respondent did not mention the issue until hearing in this case, which suggests that its concern is

not legitimate and therefore does not warrant a restriction on Urbinati’s protected activity. County

of Bureau and Bureau County Sheriff, 29 PERI ¶ 163 (IL LRB-SP 2013) aff’d by unpub. ord. 2014

20

IL App (3d) 130271-U (new reason for adverse action, not previously offered, indicated that

discipline was not imposed for legitimate reasons).

Thus, the Respondent violated Section 10(a)(1) of the Act when Chief Basek threatened

Urbinati with discipline on January 8, 2015.

V. CONCLUSIONS OF LAW

1. The charge is untimely filed with respect to the allegation that the Respondent

violated Section 10(a)(2) and (1) of the Act by failing or refusing to issue unit

employees certificates of appointment.

2. The charge is untimely filed with respect to the allegation that the Respondent

violated Section 10(a)(4) and (1) of the Act by failing or refusing to issue unit

employees certificates of appointment.

3. The charge is untimely filed with respect to the allegation that the Respondent

violated Section 10(a)(1) of the Act by failing or refusing to issue unit employees

certificates of appointment.

4. The Respondent did not violate Sections 10(a)(2) and (1) when Basek issued

Urbinati a memo on January 8, 2015 that threatened future discipline.

5. The Respondent did not violate Section 10(a)(3) and (1) of the Act when Basek

issued Urbinati a memo on January 8, 2015 that threatened future discipline.13

6. The Respondent violated Section 10(a)(1) of the Act when Chief Basek threatened

Urbinati with discipline on January 8, 2015.

VI. RECOMMENDED ORDER

IT IS HEREBY ORDERED that the Respondent, its officers and agents, shall:

1) Cease and desist from:

a. Interfering with, restraining or coercing its employees in the exercise of the rights

guaranteed them in the Act.

2) Take the following affirmative action necessary to effectuate the policies of the Act:

13 The Union failed to make any arguments addressing this allegation in its brief.

21

a. Post, at all places where notices to employees are normally posted, copies of the

Notice attached to this document. Copies of this Notice shall be posted, after being

duly signed, in conspicuous places, and be maintained for a period of 60

consecutive days. The Respondent will take reasonable efforts to ensure that the

notices are not altered, defaced or covered by any other material.

b. Notify the Board in writing, within 20 days from the date of this Decision, of the

steps the Respondent has taken to comply with this order.

VII. EXCEPTIONS

Pursuant to Section 1200.135 of the Board’s Rules, parties may file exceptions to the

Administrative Law Judge’s Recommended Decision and Order and briefs in support of those

exceptions no later than 30 days after service of this Recommendation. Parties may file responses

to exceptions and briefs in support of the responses no later than 15 days after service of the

exceptions. In such responses, parties that have not previously filed exceptions may include cross-

exceptions to any portion of the Administrative Law Judge’s Recommendation. Within seven days

from the filing of cross-exceptions, parties may file cross-responses to the cross-exceptions.

Exceptions, responses, cross-exceptions and cross responses must be filed with the Board’s

General Counsel, at 160 North LaSalle Street, Suite S-400, Chicago, Illinois 60601-3103, or to the

Board's designated email address for electronic filings, at ILRB.Filing@Illinois.gov. All filing

must be served on all other parties. Exceptions, responses, cross-exceptions and cross-responses

will not be accepted at the Board’s Springfield office. The exceptions and/or cross-exceptions

sent to the Board must contain a statement of listing the other parties to the case and verifying that

the exceptions and/or cross-exceptions have been provided to them. The exceptions and/or cross-

exceptions will not be considered without this statement. If no exceptions have been filed within

the 30-day period, the parties will be deemed to have waived their exceptions.

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Issued at Chicago, Illinois this 18th day of April, 2017

STATE OF ILLINOIS

ILLINOIS LABOR RELATIONS BOARD

STATE PANEL

/S/ Anna Hamburg-Gal

Anna Hamburg-Gal

Administrative Law Judge

NOTICE TO EMPLOYEES

FROM THE

ILLINOIS LABOR RELATIONS BOARD

ILLINOIS LABOR RELATIONS BOARD

One Natural Resources Way, First Floor

Springfield, Illinois 62702

(217) 785-3155

160 North LaSalle Street, Suite S-400

Chicago, Illinois 60601-3103

(312) 793-6400

THIS IS AN OFFICIAL GOVERNMENT NOTICE

AND MUST NOT BE DEFACED.

Case No. S-CA-15-124 The Illinois Labor Relations Board, State Panel, has found that the Village of North Riverside has violated the

Illinois Public Labor Relations Act and has ordered us to post this Notice. We hereby notify you that the

Illinois Public Labor Relations Act (Act) gives you, as an employee, these rights:

• To engage in self-organization

• To form, join or assist unions

• To bargain collectively through a representative of your own choosing

• To act together with other employees to bargain collectively or for other mutual aid and protection

• To refrain from these activities

Accordingly, we assure you that:

WE WILL cease and desist from interfering with, restraining or coercing our employees in the exercise of the

rights guaranteed them in the Act.

DATE ____________ _________________________

Village of North Riverside (Employer)