NOTICE FILED This order was filed under Supreme 2020 IL App (4th) 180754-U March 10, 2020 Court Rule 23 and may not be cited as precedent by any party except in Carla Bender the limited circumstances allowed NO. 4-18-0754 4th District Appellate under Rule 23(e)(1). Court, IL IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
TRAVIS KOESTER, ) Direct Administrative Review Petitioner, ) of Illinois Labor Relations v. ) Board, State Panel THE ILLINOIS LABOR RELATIONS BOARD, STATE) No. S-CA-16-133 PANEL; SANGAMON COUNTY; and SANGAMON ) COUNTY SHERIFF’S OFFICE, ) Respondents. ) ______________________________________________________________________________
JUSTICE HARRIS delivered the judgment of the court. Justices Knecht and DeArmond concurred in the judgment.
ORDER
¶1 Held: The Illinois Labor Relations Board did not err by rejecting petitioner’s unfair-labor- practice claim.
¶2 Petitioner, Travis Koester, seeks direct administrative review of a decision of the
Illinois Labor Relations Board, State Panel (Board), rejecting his unfair-labor-practice claim
against respondents, Sangamon County and the Sangamon County Sheriff’s Office (Sheriff’s Of-
fice). We affirm.
¶3 I. BACKGROUND
¶4 Petitioner worked as a deputy sheriff for respondents and was a member of the
Illinois Fraternal Order of Police Labor Council (FOP), the exclusive bargaining representative of
respondents’ tenured deputies. Beginning in November 2009, he was also a member of the Tactical
Response Unit (TRU), a specially trained law enforcement “support resource” within the Sheriff’s Office. The TRU was comprised of deputies and officers from both the Sheriff’s Office and other
law enforcement agencies and was used to respond to situations of “demonstrated or potential
violence [and] force,” including, for example, those involving hostages, barricaded gunmen, riots,
high-risk warrants, manmade or natural disasters, and terrorist events. TRU membership was vol-
untary and members could be removed from the TRU at any time. Respondents employed Lieu-
tenant John Hayes as the commander of the TRU. Captain Cheryllynn Williams oversaw the TRU
and was Hayes’s direct supervisor.
¶5 On March 22, 2016, petitioner was removed from the TRU. On May 25, 2016, he
filed an unfair-labor-practice charge with the Board, alleging his removal was improper because it
was done in retaliation for his filing of a union grievance. He sought reinstatement to the TRU,
compensation for lost income, expenses, and attorney fees. On October 21, 2016, the Board issued
a complaint for hearing in the matter.
¶6 On May 15, 2017, the parties submitted a joint pre-hearing memorandum, identify-
ing the issues of law in the case as (1) whether respondents interfered with, restrained, or coerced
public employees in the exercise of their rights in violation of section 10(a)(1) of the Illinois Public
Labor Relations Act (Act) (5 ILCS 315/10(a)(1) (West 2014)) and (2) whether respondents re-
moved petitioner from the TRU in retaliation for filing grievances. They identified contested facts
in the case as whether petitioner’s removal from the TRU (1) was because he filed a union griev-
ance, alleging he had been improperly passed over for promotion and (2) constituted retaliation
and caused petitioner to sustain lost wages and lost opportunities.
¶7 The parties’ memorandum also contained a statement of uncontested facts, and the
record reflects no dispute between the parties as to the following events. On June 2, 2014, and
-2- February 17, 2016, petitioner filed grievances challenging the promotional process in the Sheriff’s
Office. On February 18, 2016, TRU members approached Hayes about concerns the TRU team
had about petitioner and asked to convene a “team meeting,” without the presence of the TRU
leadership, to address those concerns. On February 23, 2016, prior to a previously scheduled TRU
training session, TRU members held a meeting.
¶8 On March 10, 2016, Deputy Derric Miller prepared a memo addressed to Hayes
that summarized the meeting. The memo was also signed by Deputy Travis Dalby. In the memo,
Miller identified the purpose of the February 23 meeting as being to “communicate some con-
cerns” the team had with petitioner with the “goal” of letting petitioner know how the TRU mem-
bers felt “in regards to his consistency in filing grievances against fellow deputies and his con-
sistency in utilizing [the Freedom of Information Act (FOIA)] to benefit his cause, whatever that
may be.”
¶9 In his memo, Miller reported that, prior to the February 23 meeting, he and Dalby
had been contacted by “numerous [TRU] teammates” who “expressed huge concern over a recent
grievance [petitioner] filed against a fellow teammate and an assistant team leader.” According to
Miller, TRU members felt petitioner was only looking out for his own best interest without con-
sideration for others, they reported having “no trust” in petitioner as a teammate, and they ex-
pressed that the lack of trust was a safety concern for the TRU. He stated that after receiving
numerous complaints about petitioner, “it was decided the best course of action was to let [peti-
tioner] know how each [team member] felt.”
¶ 10 Miller asserted that during the February 23 meeting, TRU members identified “sev-
eral reasons” why they had no trust in petitioner. He specifically noted that TRU members were
-3- concerned that petitioner had filed grievances against team members and without regard to the
effect his grievances could potentially have on others. They were also concerned with petitioner’s
“use of FOIA for his own personal gain” and that he had acted deceitfully by using his fiancée to
make a FOIA request. Finally, Miller stated TRU members were concerned about the way in which
petitioner exercised “discretion.” Specifically, he stated as follows:
“Teammates feel [petitioner] has absolutely no discretion when he is working
which poses a big problem when much of our job relies on a solid use of discretion.
Teammates feel that if policy says [petitioner] can do something[,] then [petitioner]
will do it without utilizing discretion on a case by case basis.”
¶ 11 Miller reported petitioner appeared “totally blindsided” by the criticism he received
and that he became angry and defensive. He further noted as follows:
“At the conclusion of the meeting, [petitioner] was asked: If you knew then (prior
to filing any grievance or submit[ting] any FOIA request) what you know now on
how the entire team feels [in] reference [to] your actions, would you still do it
again? [Petitioner], without hesitation, replied that yes he would because he has to
look out for himself no matter what.”
Miller concluded his memo by describing petitioner’s actions as selfish and asserting that “[l]ack
of trust in an incredibly reactive and dynamic environment [was] extremely dangerous for anyone
involved.”
¶ 12 On March 18, 2016, Hayes forwarded a memo he prepared to his supervisor, Wil-
liams, recommending petitioner’s removal from the TRU. He described how the February 23 meet-
ing came about, asserting he had been approached by three deputies about having a TRU peer
-4- meeting to discuss “issues with the actions of [petitioner].” Hayes further asserted as follows:
“In the time following the meeting, I have met and spoke with every mem-
ber of the [TRU]. The Deputies I spoke with feel [petitioner] should be removed
from the team. The team members believe they can no longer trust [petitioner] in
his capacity as a teammate. In short, their perception is [petitioner] will manipulate
situations for his own personal gain or agenda regardless of the consequences.”
Hayes stated he was attaching a summary of the February 23 meeting prepared by Miller. Addi-
tionally, his memo contained the signatures of 16 TRU members, each of whom agreed with the
recommendation for petitioner’s removal. As stated, on March 22, 2016, petitioner was removed
from the TRU.
¶ 13 On May 22, September 14, and October 2, 2017, hearings were held before an Ad-
ministrative Law Judge (ALJ). The parties presented evidence that included testimony from peti-
tioner; Hayes; Williams; Joseph Roesch, the chief deputy for the Sheriff’s Office; and 15 TRU
members, including Miller and Dalby.
¶ 14 Witnesses described the TRU as a “close-knit group,” and like a “brotherhood” or
“family.” The team’s motto was “Often Tested, Brothers Forever,” which some members had tat-
tooed on their body. Testimony established that trust was very important among TRU members
because of the dangerous and intense situations the team members often faced. A lack of trust
would create safety issues for the team.
¶ 15 Petitioner testified on his own behalf, stating his June 2014 and February 2016
grievances were filed based on his belief that the Sheriff’s Office was not complying with its own
internal rules regarding promotions, impacting his opportunity for advancement. He admitted that
-5- had he won his grievances, members of the TRU who were promoted could have been adversely
affected.
¶ 16 At the February 23 meeting, petitioner learned that TRU members were upset by
his most recent grievance. Petitioner estimated that there were 20 TRU members and that 12 mem-
bers attended the meeting. Hayes was not present at the meeting when TRU members were voicing
their concerns to petitioner. Petitioner recalled that Miller and Dalby led the meeting and that
Miller expressed that he was upset because petitioner “had filed grievances.” According to peti-
tioner, Miller felt petitioner should not “take action against another member of the team that could
hurt [the team member]” and that petitioner was “looking out for [himself].” Petitioner stated that
Dalby reiterated Miller’s concerns about the grievances and referenced petitioner’s filing of FOIA
requests. Petitioner acknowledged that he had filed several FOIA requests. In connection with
those requests, he sought the internal affairs files of other deputies and documents that named one
particular deputy in a lawsuit. Petitioner agreed he had once asked his fiancée to file a FOIA re-
quest for an internal affairs file on another deputy.
¶ 17 Petitioner testified that at the February 23 meeting, a few other TRU members also
spoke up. One member expressed how he would personally be affected by petitioner’s recent griev-
ance if it was successful. Petitioner stated the remaining TRU members who voiced complaints
reiterated the same points—that they were upset by the grievances and did not know if they could
trust petitioner as a result. Petitioner asserted one member questioned why the discussion was
being had as it seemed to be “based on an administrative issue and had nothing to do with opera-
tional abilities.” Petitioner agreed that at the conclusion of the meeting, he maintained he would
make the same choice to file a grievance again “because it would benefit [his] family.” He stated
-6- he explained to his TRU teammates that he filed grievances because he believed “the contract had
been violated” and such violations were harmful to his future. Petitioner also testified that the TRU
members did not challenge his job abilities and, instead, expressed that he “was actually very safe
and very good *** and very skilled.”
¶ 18 On March 21, 2016, petitioner was called into a meeting with Williams and Hayes
and told he was being removed from the TRU. On March 25, 2016, he wrote his own memo to
clarify for Williams what occurred at the meeting and to express his belief that his removal from
the TRU was “direct retaliation for filing a grievance as it was the only point made to [him] for
[his] removal from the team and a lack of trust.” Petitioner’s March 2016 memo was entered into
evidence before the ALJ and contained a description of the February 23 meeting that was similar
to petitioner’s hearing testimony.
¶ 19 As stated, Miller was among the 15 TRU members to testify at the hearings. He
stated his “sense” of the TRU members’ concerns about petitioner was that the grievances were “a
symptom of other things” and petitioner was exhibiting “selfishness.” Miller “felt that [petitioner]
was utilizing grievances for personal gain, to help himself out, and with total disregard for anybody
else that was in his way.” In general, the TRU members “were having issues with trusting [peti-
tioner].” The point of the February 23 meeting was to let petitioner know how the team felt and
“if he would do anything different that would make [the team] feel different” and regain trust. At
the time of the meeting, the TRU members had not decided that they wanted petitioner off the
team.
¶ 20 Miller testified that besides the grievances filed by petitioner, other issues discussed
at the February 23 meeting included the FOIA request by petitioner’s fiancée, and a TRU “call-
-7- out” involving a firearm in an oven. Regarding the latter incident, Miller explained that prior to a
raid on a residence, the TRU team was given information that a confidential informant reported a
gun was kept in the oven. The TRU members were not supposed to retrieve the gun because it
could compromise the identity of the confidential source. However, during the raid, petitioner or-
dered another deputy, Dave Drabing, to retrieve the gun. Later, when Hayes confronted the team
about the mistake in retrieving the gun, Drabing “owned” his part in the mistake but petitioner did
not speak up.
¶ 21 Miller testified that at the time of the February 23 meeting, he had also been aware
of “numerous lawsuits” involving petitioner and issues involving his excessive use of force. Those
situations affected his trust in petitioner and caused him to question whether petitioner properly
exercised his “discretion.” Miller stated he did not trust petitioner due to his “use of the grievances
as a mechanism for self-benefit.” He agreed that petitioner was entitled to file grievances and as-
serted that the grievances in this instance were “an underlying symptom of the overall [trust] prob-
lem.”
¶ 22 According to Miller, almost everyone at the meeting spoke. After the meeting, the
team decided they no longer wanted petitioner on the TRU. Miller believed that the February 23
meeting would have occurred whether or not petitioner had filed his February 2016 grievance. He
asserted that the grievance “was the straw that broke the camel’s back with the team.”
¶ 23 The remaining 14 TRU members also testified they lacked trust in petitioner. They
gave reasons for their lack of trust and their desire for petitioner’s removal from the TRU team,
including (1) the filing of a FOIA request by petitioner’s fiancée; (2) petitioner failing to own up
to his mistake after the firearm in the oven incident; (3) questions regarding the manner in which
-8- petitioner exercised his discretion as a deputy, which one member who had previously supervised
petitioner described as “troubling”; (4) petitioner’s responses to his teammates at the February 23
meeting; (5) petitioner’s veracity being called into question by others, including the state’s attor-
ney’s office and a circuit court judge; (6) petitioner’s action of documenting his exchanges with
others in notebooks; (7) “shady” behavior exhibited by petitioner during the consent search of a
residence and when evaluating a suspected impaired driver; (8) petitioner’s use of a Taser against
a noncombative female subject, resulting in the entry of a summary judgment against him in a
federal lawsuit for the excessive use of force; (9) petitioner including false or inaccurate infor-
mation in police reports; and (10) petitioner ignoring requests from other law enforcement officers.
¶ 24 Most TRU members were explicitly asked whether petitioner’s action in filing
grievances served as the basis for their lack of trust. One team member, whose promotion was the
subject of petitioner’s June 2014 grievance, acknowledged that petitioner’s grievance affected his
trust in petitioner; however, he also cited several other factors that made him question petitioner’s
integrity and honesty, including incidents when petitioner’s veracity was questioned by judges, the
firearm in the oven incident, the Taser incident, and an incident when petitioner included false
information in a police report. The remaining team members who were specifically asked whether
their trust issues with petitioner were based on his grievances denied that the grievances caused
their mistrust or that petitioner’s filing of grievances was the reason they supported his removal
from the team.
¶ 25 Hayes testified that, prior to the February 23 meeting, he “didn’t really know” what
specific issues the TRU members had with petitioner and, when the meeting was requested, he was
not told exactly what the team members intended to discuss. After the meeting, Hayes received
-9- Miller’s memo and prepared one of his own directed to Williams. He testified he individually met
and spoke with each TRU member, except for two members who were paramedics. He asked each
member he spoke with to read his memo and sign their name to the memo if they agreed with its
contents. Only one TRU member that Hayes spoke with opted not to sign the memo. The remaining
TRU members each told Hayes “it was an issue of trust or veracity and that’s why they signed it.”
¶ 26 Hayes stated he was aware that petitioner’s grievances were mentioned in Miller’s
post-meeting memo. However, he asserted that “the fact that [petitioner] had filed a grievance had
absolutely nothing to do with [his] recommendation” for petitioner’s removal from the TRU.
Hayes also denied that the reason TRU members lacked trust in petitioner was because he pursued
grievances. He testified that the trust issues stemmed from petitioner’s cumulative behavior over
the years. He stated as follows: “[Petitioner] sees things in a very black-and-white shade. Okay?
And that the area that he misses is the gray. Just because you have the ability to do something
doesn’t mean you should. And that has been taken to the nth degree on a variety of things.” Hayes
testified petitioner conveyed an attitude of always being right and over the years “created a dis-
trustful relationship[,] socially[,] at work with his co-workers.”
¶ 27 Hayes identified the reasons for the TRU team’s trust issues that he was aware of
when he made his recommendation. Specifically, he noted the firearm in the oven incident, peti-
tioner’s FOIA requests, and feelings that petitioner “was not doing what he should on calls” and
“taking notes on things [other deputies] did or didn’t do.” Hayes testified he did not “document”
every issue with petitioner in his memo because he did not want “to put dirty laundry on paper
when [he could] just go in and talk about it.” As examples of undocumented issues, he noted that
the state’s attorney’s office felt petitioner had “serious veracity issues,” the summary judgment
- 10 - entered against petitioner in connection with his use of a Taser, and newspaper articles concerning
petitioner.
¶ 28 Hayes also found it significant that each TRU member he spoke with, except for
one, signed his memo recommending petitioner’s removal without hesitation. He testified that he
was also a union member and had filed a grievance in the past. He denied suffering any adverse
consequences as a result of his grievance. Ultimately, he recommended petitioner’s removal from
the TRU because petitioner’s “presence on the team was detrimental to the point where it might
inhibit [the team’s] ability to function” and Hayes did not want “to take that chance.”
¶ 29 Williams testified that sometime in February 2016, Hayes reported the TRU mem-
bers were having “trust issues” with petitioner. Later, Hayes gave her a memo and recommended
petitioner’s removal from the TRU, an action that required her approval. According to Williams,
Hayes said that the TRU members “felt that they couldn’t trust [petitioner].” Regarding the reasons
for the trust issues, she recalled Hayes describing the incident involving the firearm in the oven.
She stated they did not talk about grievances or FOIA requests, but she did read Miller’s memo,
which contained information about those subjects. Ultimately, Williams agreed with Hayes’s rec-
ommendation because the TRU had to be a close-knit group and a lack of trust with one person
could cause “dissension among ranks.” She believed the trust issues were detrimental to the overall
functioning of the TRU. Williams testified that petitioner’s filing of grievances was not the reason
she approved of his removal from the TRU, stating as follows: “It was trust issues. Grievances had
no bearing on my decision.”
¶ 30 Roesch testified he was the chief deputy with the Sheriff’s Office. In the chain of
command, he was under the Sheriff, Wes Barr, and above Williams. The ultimate decision to
- 11 - remove petitioner from the TRU team was his with the advice and consent of the Sheriff. Roesch
was aware that there were trust issues with petitioner. He discussed the matter with Williams but
did not read the memos prepared by Hayes and Miller. When explaining the situation to the Sheriff,
he relayed that almost the entire TRU team expressed that they did not trust petitioner and did not
want him on the team. Roesch recommended petitioner’s removal from the team to the Sheriff,
stating he was also “familiar with a lot of the things that were going on prior.” Roesch noted he
had personally referred petitioner for disciplinary action in the past. The Sheriff supported the
decision for removal.
¶ 31 Roesch testified he determined petitioner had to be removed from the TRU because
the team did not trust him and asserted if the “trust isn’t there, the team can’t function.” Roesch
was familiar with petitioner’s grievances because he dealt with labor issues for the Sheriff’s Office.
However, he and Williams never discussed the issue of grievances in the context of petitioner’s
removal from the TRU. Roesch denied that he would have removed petitioner from the TRU for
filing grievances, noting that others on the team had also filed grievances.
¶ 32 Roesch believed many of the trust issues with petitioner stemmed from the Taser
incident. He testified petitioner’s focus was on whether he could do something and not whether he
should do something. Roesch identified one of the more serious incidents involving petitioner as
when he “made a material misrepresentation” in a police report. He asserted as follows:
“[Petitioner] did a consent search of a house and he did it, based on his [police]
report, based on a Crime Stopper tip. There was no Crime Stopper tip. Because the
state’s attorney’s office was gearing up for trial or charges and they wanted the
Crime Stopper tip and there was none.”
- 12 - Roesch believed the incident spoke to petitioner’s truthfulness. He stated he “referred” petitioner
for discipline based on that incident under the previous administration in the Sheriff’s Office. He
stated he would have recommended petitioner’s termination.
¶ 33 Ultimately, Roesch believed the trust issues with petitioner resulted from behaviors
that raised questions regarding petitioner’s judgment. Roesch believed there was an erosion of trust
with the TRU members over time.
¶ 34 On April 19, 2018, the ALJ issued his recommended decision and order. Travis
Koester, Charging Party, and County of Sangamon and Sheriff of Sangamon County, Respondents,
35 PERI ¶ 70 (Administrative Law Judge’s Recommended Decision and Order, April 19, 2018).
He found respondents violated section 10(a)(1) of the Act by removing petitioner from the TRU
in retaliation for his grievance filings. Id. On May 18, 2018, respondents filed exceptions to the
ALJ’s decision.
¶ 35 On October 17, 2018, the Board issued its decision, rejecting the ALJ’s recommen-
dations and dismissing the complaint for hearing. Travis Koester, Charging Party, and County of
Sangamon and Sheriff of Sangamon County, Respondents, 35 PERI ¶ 70 (ILRB State Panel, Oc-
tober 17, 2018) (hereinafter 35 PERI ¶ 70). It determined petitioner “failed to establish the requi-
site causation, i.e., that his filing of the 2014 and 2016 grievances was the substantial or motivating
factor in [r]espondents’ decision to remove him from the TRU.” Id. The Board stated as follows:
“We *** find that both the Miller Memo and Hayes Memo show the reason for
[petitioner’s] removal from the TRU was the TRU members’ lack of trust in [peti-
tioner]. Although the filing of grievances was mentioned, the Miller Memo clearly
indicates the TRU members were not upset because [petitioner] filed grievances,
- 13 - rather, they were upset that the subject and nature of those grievances demonstrated
[petitioner] would only look out for himself at the expense of fellow team members,
which they felt was antithetical to the TRU.” (Emphasis in original.) Id.
¶ 36 This appeal follows.
¶ 37 II. ANALYSIS
¶ 38 On appeal, petitioner argues the Board erred in rejecting his claim that respondents
committed an unfair labor practice. He contends the record shows his removal from the TRU im-
properly resulted from his filing of a grievance, a protected activity under the Act. Petitioner fur-
ther asserts the Board’s finding that TRU members were upset about “the subject and nature” of
his grievances rather than the filing of grievances themselves, was “a semantic distinction of no
legal consequence.”
¶ 39 A. Petitioner’s Compliance with Illinois Supreme Court Rule 341
¶ 40 On appeal, the Board and respondents initially contend petitioner’s appellant’s brief
failed to comply with Illinois Supreme Court Rule 341 (eff. May 25, 2018), warranting forfeiture
of his arguments or dismissal of his petition for direct administrative review. They assert petitioner
improperly provided an excessively lengthy and argumentative introductory section, made factual
assertions with no citation to the appellate record, failed to describe all of the facts necessary to an
understanding of the case, and referenced facts for the first time in his argument.
¶ 41 Rule 341 sets forth requirements for the form and content of appellate court briefs.
Pursuant to Rule 341(h)(2), an appellant’s brief must contain an “introductory paragraph” that
generally sets forth the nature of the action and of the judgment appealed from. It should also have
a “Statement of Facts,” containing “the facts necessary to an understanding of the case, stated
- 14 - accurately and fairly without argument or comment, and with appropriate reference to the pages
of the record on appeal ***.” Ill. S. Ct. R. 341(h)(6) (eff. May 25, 2018). Further, an appellant’s
brief must provide an “Argument” section, which sets forth “the contentions of the appellant and
the reasons therefor, with citation of the authorities and the pages of the record relied on.” Ill. S.
Ct. R. 341(h)(7) (eff. May 25, 2018). “The rules of procedure concerning appellate briefs are not
mere suggestions, and it is within this court’s discretion to strike [a] brief for failing to comply
with Supreme Court Rule 341.” Crull v. Sriratana, 388 Ill. App. 3d 1036, 1045, 904 N.E.2d 1183,
1190 (2009).
¶ 42 Here, as argued by the Board and respondents, petitioner’s brief fails to comply
with Rule 341. Rather than an “introductory paragraph” describing the nature of the case, peti-
tioner’s brief contains a “Statement of the Case” that is in excess of three pages. It sets forth factual
information more appropriately reserved for a “Statement of Facts” and improperly contains argu-
ment. Petitioner’s “Statement of Facts” is deficient in that it provides no factual information about
the three-day hearing before the ALJ at which 20 witnesses testified and upon which the Board’s
ultimate decision was based. It also improperly contains argument and states facts with no citation
to the appellate record. Petitioner’s “Argument” section is similarly flawed as it also fails to con-
tain appropriate citations to “the pages of the record relied on.”
¶ 43 Nevertheless, despite the deficiencies in petitioner’s appellant’s brief, we decline
to find his arguments have been forfeited or to dismiss his petition for administrative review. Pe-
titioner’s failure to abide by the requirements of Rule 341 was not so great that our review of the
case is unduly hindered, nor is the appellate record especially complex. Accordingly, we elect to
address the merits of his claim.
- 15 - ¶ 44 B. Unfair-Labor-Practice Claim
¶ 45 As stated, petitioner challenges the Board’s rejection of his unfair-labor-practice
claim. He argues he was removed from the TRU in retaliation for filing grievances.
¶ 46 1. Standard of Review
¶ 47 On appeal, the parties first disagree on the applicable standard of review. Petitioner
asks this court to apply a de novo standard, arguing he is not challenging one of the Board’s factual
determinations but, rather, its application of “the facts to the law.” Conversely, the Board and
respondents argue that petitioner’s appeal does present a challenge to one of the Board’s factual
findings and, as a result, the manifest-weight-of-the-evidence standard should apply. We agree
with the Board and respondents.
¶ 48 Here, the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2014)) ap-
plies to our review of the Board’s final decision. See 5 ILCS 315/11(e) (West 2014). In an admin-
istrative review proceeding, we review the agency’s, i.e., the Board’s, final decision, not the find-
ings of the ALJ. Parikh v. Division of Professional Regulation of the Department of Financial &
Professional Regulation, 2012 IL App (1st) 121226, ¶ 31, 977 N.E.2d 1173. Under the Adminis-
trative Review Law, judicial review extends “to all questions of law and fact presented by the
entire record before the court.” 735 ILCS 5/3-110 (West 2014). “The proper standard of review in
cases involving administrative review depends upon whether the question presented is one of fact,
one of law, or a mixed question of fact and law.” Beggs v. Board of Education of Murphysboro
Community Unit School District No. 186, 2016 IL 120236, ¶ 50, 72 N.E.3d 288.
¶ 49 “An administrative agency’s findings and conclusions on questions of fact are
deemed to be prima facie true and correct.” City of Belvidere v. Illinois State Labor Relations
- 16 - Board, 181 Ill. 2d 191, 204, 692 N.E.2d 295, 302 (1998). When examining the Board’s factual
findings, we consider whether they are against the manifest weight of the evidence. Id. A factual
finding is “contrary to the manifest weight of the evidence where the opposite conclusion is clearly
evident.” Id. The Board’s “findings on a question of law *** are reviewed with less deference”
and are subject to a de novo standard of review. Id. at 205. Finally, where a “case involves an
examination of the legal effect of a given set of facts, it involves a mixed question of fact and law”
and is subject to a clearly erroneous standard. Id.
¶ 50 When an employer is alleged to have committed an unfair labor practice, the em-
ployer’s motivation for taking a particular action presents a question of fact. City of Burbank v.
Illinois State Labor Relations Board, 128 Ill. 2d 335, 345, 538 N.E.2d 1146, 1149-50 (1989) (stat-
ing that “because motive involves a factual determination, the Board’s finding must be accepted if
supported by substantial evidence”). In this case, petitioner asserts that “the only question that is
pending is whether [his] grievances were a ‘motivating’ factor in the decision to remove him from
the TRU.” Further, he challenges the Board’s ultimate finding that it was the TRU members’ lack
of trust—rather than his filing of grievances—that was the basis, i.e., motivating factor, for his
removal. Accordingly, the question on review is one of fact and we apply a manifest-weight-of-
the-evidence standard of review.
¶ 51 2. The Board’s Decision
¶ 52 Under section 10(a)(1) of the Act (5 ILCS 315/10(a)(1) (West 2014)), it is an unfair
labor practice for an employer or its agents “to interfere with, restrain[,] or coerce public employ-
ees in the exercise of the rights guaranteed in th[e] Act.” An employee may establish a prima facie
case of a section 10(a)(1) violation, by showing that (1) he was engaged in a statutorily protected
- 17 - activity, (2) the employer was aware of the nature of his conduct, and (3) the employer took ad-
verse action against him for discriminatory reasons. Pace Suburban Bus Division of the Regional
Transportation Authority v. Illinois Labor Relations Board, 406 Ill. App. 3d 484, 494-95, 942
N.E.2d 652, 661-62 (2010). Regarding the third basis for establishing a prima facie case, the em-
ployee must “show, by a preponderance of the evidence, that the adverse employment action was
based in whole or in part on antiunion animus—or *** that the employee’s protected conduct was
a substantial or motivating factor in the adverse action.” (Internal quotation marks omitted.) City
of Burbank, 128 Ill. 2d at 345.
¶ 53 As stated, an employer’s motive is a question of fact. Id. The Board may infer a
discriminatory motive “from either direct or circumstantial evidence.” Id. Factors from which an-
tiunion motive may be inferred include (1) expressions of hostility toward union activity along
with knowledge of the employee’s union activities, (2) proximity in time between the union activ-
ities and the adverse action, (3) disparate treatment of employees or a pattern of conduct targeting
union supporters for adverse action, (4) inconsistencies between the employer’s proffered reason
for the adverse action and other employer actions, and (5) shifting explanations for the adverse
action. Id. at 345-46. Once an employee has established that the adverse action was based in part
on antiunion animus, the employer can avoid a finding that it violated the Act by demonstrating
that the employee would have been subject to the adverse action for a legitimate business reason
notwithstanding the employer’s antiunion animus. Id. at 346.
¶ 54 Here, the Board determined petitioner failed to establish a prima facie case of a
section 10(a)(1) violation. We note there appears to be no dispute between the parties that peti-
tioner’s filing of grievances was a statutorily protected activity or that respondents knew of the
- 18 - nature of that conduct. Instead, the parties dispute whether petitioner’s removal from the TRU was
for discriminatory reasons, i.e., retaliation for his filing of grievances. Ultimately, the Board found
petitioner failed to show that his filing of grievances “was the substantial or motivating factor in
[r]espondents’ decision to remove him from the TRU.” Instead, it determined that “both the Miller
Memo and Hayes Memo show[ed] the reason for [petitioner’s] removal from the TRU was the
TRU members’ lack of trust in [petitioner].” 35 PERI ¶ 70. After reviewing the record, we find the
Board’s determination as to respondents’ motivation was not against the manifest weight of the
evidence.
¶ 55 As argued by the Board on appeal, evidence showed that trust among the TRU
members was essential to the TRU’s safe and effective operation. Those individuals with decision-
making authority over the TRU—Hayes, Williams, and Roesch—each denied that petitioner’s
pursuit of grievances was the reason he was removed from the team. Each identified trust issues
as the basis of his or her decision. Both Hayes and Roesch testified they were aware of reasons
unrelated to the filing of grievances that affected the TRU members ability to trust petitioner and
provided specific examples of those reasons. Further, both believed it was evidence of petitioner’s
behavior over time that cumulatively caused the trust issues with his teammates.
¶ 56 Additionally, as noted, 15 TRU members testified at the hearing before the ALJ.
Each member testified he lacked trust in petitioner and agreed with the recommendation for his
removal from the team. The vast majority of TRU members were questioned explicitly regarding
the issue of grievances and denied that petitioner’s filing of grievances was the cause of their trust
issues or their desire for his removal from the team. Testimony from the TRU members established
that the teams’ “trust issues” resulted primarily from decisions petitioner made or behaviors he
- 19 - exhibited, rather than the pursuit of grievances. The TRU members felt these decisions and behav-
iors, several of which were supported by specific examples, showed a lack of honesty and integrity.
¶ 57 Petitioner’s argument on appeal does not address the specific testimony and evi-
dence presented at the hearing before the ALJ. Rather, he challenges a particular statement the
Board made in its decision regarding Miller’s memo and the subject of grievances. Specifically,
petitioner notes the following statement from the Board’s decision:
“Although the filing of the grievances was mentioned, the Miller Memo clearly
indicates the TRU members were not upset because [petitioner] filed grievances,
rather, they were upset that the subject and nature of those grievances demonstrated
[petitioner] would only look out for himself at the expense of fellow team members,
which they felt was antithetical to the TRU.” (Emphasis in original.) 35 PERI ¶ 70.
Petitioner argues this statement indicates the Board determined “he was retaliated against because
of the relief he sought” in filing a grievance, which he maintains is the equivalent of retaliation for
filing a grievance and should have the same consequences under the Act.
¶ 58 We disagree with petitioner’s characterization of the Board’s findings. The Board’s
decision does not reflect a determination that petitioner was “retaliated against based on the relief
sought” in his grievances. Instead, in explaining its decision, the Board drew a distinction between
(1) the TRU members being upset with petitioner because he filed grievances and (2) the TRU
members being upset with petitioner because of what they believed the “subject and nature” of the
grievances demonstrated about petitioner. It was the latter that the board considered along with
other evidence reflecting the TRU members’ distrust of petitioner in arriving at its decision.
¶ 59 Additionally, while there is some evidence that petitioner’s fellow TRU members
- 20 - were upset by his grievances, the record does not support a finding that the grievances were the
sole, or even the most significant, issue affecting the TRU members’ trust. Aside from petitioner’s
grievances, Miller’s memo also documented issues with petitioner’s FOIA requests and the man-
ner in which petitioner exercised his “discretion when *** working.” As discussed, the TRU mem-
bers who testified at the hearing asserted multiple reasons for their lack of trust in petitioner that
were unrelated to the issue of grievances.
¶ 60 After reviewing the record, we find it contains sufficient support for the Board’s
finding that respondents were motivated by the TRU members’ lack of trust in petitioner, rather
than his filing of grievances, when deciding to remove him from the TRU. An opposite conclusion
from that reached by the Board was not clearly evident.
¶ 61 III. CONCLUSION
¶ 62 For the reasons stated, we affirm the Board’s decision.
¶ 63 Affirmed.
- 21 -