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STATE OF ILLINOIS ILLINOIS LABOR RELATIONS BOARD

LOCAL PANEL Al Wagner, ) ) Charging Party ) ) and ) Case No. L-CB-16-036 ) Automobile Mechanics’ Local 701, IAM, ) ) Respondent. )

DECISION AND ORDER OF THE ILLINOIS LABOR RELATIONS BOARD LOCAL PANEL

On June 15, 2018, Administrative Law Judge (ALJ) Deena Sanceda issued a

Recommended Decision and Order (RDO) finding the Charging Party, Al Wagner, failed to

establish that the Respondent, Automobile Mechanics’ Local 701, IAM (Union), violated Sections

10(b)(1) and 10(b)(3) of the Illinois Public Labor Relations Act (Act), 5 ILCS 315 (2016), as

amended, and recommending dismissal of the Complaint for Hearing.

The Charging Party submitted a document entitled “Appeal” challenging the ALJ’s RDO.

The Respondent first filed a Motion to Strike Charging Party’s Appeal and then submitted a

Response to Charging Party’s Exceptions and one cross-exception. Charging Party did not

respond to Respondent’s cross-exception. After reviewing the record, exceptions, and responses,

we find as follows:

RESPONDENT’S MOTION TO STRIKE

In its Motion to Strike, Respondent contends the “Appeal,” which presumably represents

Charging Party’s exceptions and brief in support, fails to comport with Section 1200.135(b)(2)

and (3) of the Board’s rules, 80 Ill. Admin. Code 1200.135(b)(2) and (3), and thus, should be

stricken. Although Respondent correctly notes the requirements for exceptions specified by

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Sections 1200.135(b)(2) and (3), we find its contentions that the Charging Party’s “Appeal” does

not comport with those requirements are without merit.

Section 1200.135(b)(2) provides that exceptions must clearly state the issue to which the

exception is taken, identify the objectionable portion of the RDO, and state the grounds for the

exception along with citations to authorities and the record unless such is included in brief. A

review of the Charging Party’s “Appeal” reveals that these requirements have indeed been

satisfied. Charging Party has clearly stated the issues to which is he takes exception and the

grounds for his exceptions by contending the ALJ overlooked evidence which if were

considered, would have resulted in a different outcome and organizing those issues by subject

area. He identifies the ALJ’s findings to which he objects by listing the page number of the

RDO, and then provides citations to the record in support of his exceptions. Furthermore, even if

Charging Party had not complied with the requirements of Section 1200.135(b)(2), the rule itself

provides that we have discretion to disregard the exception or allow it.

We find Respondent’s contentions regarding Section 1200.135(b)(3) to also be

unavailing. Section 1200.1235(b)(3) pertain to requirements for briefs in support of exceptions

in the event a party files one. It does not, however, require a brief to be filed separately. Indeed,

the language of Section 1200.135(b)(2) contemplates the absence of a brief by requiring

“citations to authority and citations to the record unless set forth in a supporting brief.” Because

Charging Party did not file a separate brief in support of his exceptions, Section 1200.135(b)(3)

is inapplicable.

Although Charging Party’s “Appeal” may not have been drafted in a format in which

Respondent’s counsel would have preferred and was not identified specifically as exceptions, it

accomplishes the same and fully comports with the requirements of Section 1200.135(b)(3).

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Accordingly, we deny Respondent’s Motion to Strike and allow Charging Party’s “Appeal” to be

considered as his exceptions and brief in support to the RDO.

DISCUSSION

Charging Party is currently employed with the Chicago Transit Authority (CTA) as a Bus

and Truck Mechanic and is a member of a bargaining unit represented by the Respondent. The

Complaint for Hearing in this case alleged the Respondent violated Sections 10(b)(1) and (3) by

objecting to the CTA about the January 4, 2016 hiring of Charging Party as a Bus and Truck

Mechanic and then failing to pursue the grievance over his administrative termination from the

January 2016 position, in retaliation for his unsuccessful candidacy in a business representative

election in 2014 at a different employer.

ALJ Sanceda found Respondent’s actions did not constitute violations of either Section

10(b)(1)1 or Section 10(b)(3) 2 because there was insufficient evidence Respondent acted with

the requisite improper motive.

1 To establish a union’s breach of its duty of fair representation under Section 10(b)(1), a charging party must first establish a prima facie case by demonstrating, by a preponderance of the evidence, that: 1) the employee has engaged in activities tending to engender the animosity of union agents or that the employee's mere status, such as race, gender, religion or national origin, may have caused animosity; 2) the union was aware of the employee’s activities and/or status; 3) there was an adverse representation action by the union; and 4) the union took the adverse action against the employee for discriminatory reasons, i.e., because of animus toward the employee’s activities or status. Metro. All. of Police v. State of Ill. Labor Rel. Bd., Local Panel, 345 Ill. App. 3d at 587-588; Am. Fed’n of State, Cnty., and Mun. Empl., Council 31, (Robertson), 18 PERI ¶ 2014 (IL LRB-SP 2002). 2 Section 10(b)(3) of the Act provides that it is an unfair labor practice for a labor organization “to cause, or attempt to cause, an employer to discriminate against an employee in violation of subsection (a)(2).” 5 ILCS 315/10(b)(3). To establish a Section 10(a)(2) violation, a charging party must show, among other things, that an employer’s action was motivated in whole or in part by anti-union animus with the intent to discourage or encourage union membership or support. See Sheriff of Jackson Cnty. v. Ill. State Labor Rel. Bd., 302 Ill. App. 3d 411, 415 (5th Dist. 1999). Even though the alleged adverse action, if taken by the employer alone, would not be a violation because it was not illegally motivated, a violation may occur if the union was illegally motivated to induce the employer to take the adverse action. See Carpenters Local 2205 (Graves Granite), 229 NLRB 56 (1977).

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The ALJ determined Charging Party failed to establish a prima facie case for a Section

10(b)(1) violation regarding both the objections to the January 4, 2016 hiring and refusal to

pursue his discharge grievance, for the record contained insufficient evidence demonstrating

Respondent acted out of animus toward Charging Party because of Charging Party’s

unsuccessful candidacy against Local 701 Directing Business Representative Sam Cicinelli.

Regarding Local 701 Business Representative Mark Utley’s objection to Charging

Party’s January 4, 2016 hire, the ALJ found the time period between Charging Party’s

unsuccessful bid in the August 2014 business representative election and the Respondent’s

actions over a year later, to be too long to raise suspicions. She also found there was insufficient

evidence that either Cicinelli or Utley was hostile or held any animus toward Charging Party and

that Respondent or any of its agents engaged in pattern of disparate treatment of other members.

Finally, the ALJ observed that Respondent did not provide shifting explanations for its objection

to the January 4, 2016 hire, but rather, it merely provided multiple reasons for its conduct.

Similarly, the ALJ found Charging Party failed to demonstrate Respondent refused to

pursue his discharge grievance because of any animus toward Charging Party. She again found

the timing of the adverse action was not suspicious; there was no evidence of hostility on the part

of Armando Arreola, Respondent’s agent who made the decision not to pursue the grievance,

toward Charging Party due to his run for business representative against Cicnelli; and Arreola

did not provide shifting explanations for his decision not to pursue the grievance.

As for the alleged Section 10(b)(3) violations, the ALJ observed that to prevail, Charging

Party must show that Respondent acted with improper motives when it objected to his January 4,

2016 hire and then failed to pursue his discharge grievance. She then determined there was

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again insufficient evidence to conclude that Respondent’s agents acted out of animus or hostility

towards Charging Party in its actions.

In his exceptions, Charging Party contends the ALJ erred by overlooking key evidence

which, had she considered them, would have resulted in a different outcome. To support his

contentions, Charging Party identifies several pieces of evidence that the ALJ either failed to or

considered incorrectly in making her recommendations. We reject Charging Party’s exceptions,

however, for they fail to compel rejection of the ALJ’s recommendations finding the Respondent

violated the Act.

The crux of the ALJ’s findings was insufficient evidence the Respondent or any of its

agents took action with the requisite improper motive. We agree with the ALJ that there was

insufficient evidence that Respondent or any of its agents held any animosity or hostility toward

Charging Party due to his unsuccessful candidacy for business representative, and that there was

scant evidence that Charging Party’s candidacy was the reason for Respondent’s actions. With

the exception of the ALJ’s finding on page 16 of the RDO that “Arreola testified there was

correlation between his decision not to pursue the grievance and Wagner’s running for Business

Representative in 2014” which will be discussed further below, we find that the Charging Party

fails to identify any error in the ALJ’s factual or legal analysis regarding the lack of improper

motive. All the evidence the Charging Party identifies as sufficiently providing such evidence

fails to do so. Indeed, the Charging Party’s exceptions merely attempt to relitigate the evidence

the ALJ considered rather than pointing to any error on her part.

As noted above, Charging Party does identify one issue with the ALJ’s finding regarding

Arreola’s testimony. Respondent filed its sole cross-exception also taking issue with this

finding. Respondent contends the ALJ inadvertently omitted the word “no” and contends the

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sentence should have been written as “Arreola testified there was no correlation between his

decision not to pursue the grievance and Wagner’s running for Business Representative in 2014.”

Respondent cites to page 94 of the transcript of Arreola’s testimony in support. A review of that

page of the transcript confirms Respondent’s contention. Furthermore, the inclusion of the word

“no” in that sentence is consistent with the ALJ’s conclusions whereas its omission does not

make sense considering her analysis. Accordingly, we adopt the ALJ’s finding regarding

Arreola’s testimony on page 16 of the RDO but modify that finding to include the word “no” as

described.

For these reasons, we adopt the ALJ’s recommendations subject to the modification as

described above and dismiss the Complaint for Hearing in its entirety.

BY THE LOCAL PANEL OF THE ILLINOIS LABOR RELATIONS BOARD

/s/ Robert M. Gierut Robert M. Gierut, Chairman /s/ Charles E. Anderson

Charles E. Anderson, Member /s/ Angela C. Thomas

Angela C. Thomas, Member

Decision made at the Local Panel’s public meeting in Chicago, Illinois on September 11, 2018, written decision approved at the Local Panel’s public meeting in Chicago, Illinois on October 16, 2018, and issued on this date.

STATE OF ILLINOIS

ILLINOIS LABOR RELATIONS BOARD

LOCAL PANEL

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Al Wagner, )

)

Charging Party )

)

and ) Case No. L-CB-16-036

)

Automobile Mechanics Union, Local #701, )

)

Respondent )

ADMINISTRATIVE LAW JUDGE’S RECOMMENDED DECISION AND ORDER

On January 15, 2016, Charging Party, Al Wagner, filed an unfair labor practice charge

with the Local Panel of the Illinois Labor Relations Board (“Board”), in the above-captioned

case, alleging that the Respondent, Automobile Mechanics Union, Local 701(“Union”), violated

Section 10(b) of the Illinois Public Labor Relations Act (“Act”), 5 ILCS 315 (2014), as amended.

On May 31, 2016, the Board’s Executive Director dismissed the charges alleged therein.

Charging Party appealed to the Board. In a written decision that issued September 20, 2016, the

Board remanded the case to the Executive Director for further investigation.

After an investigation conducted in accordance with Section 11 of the Act and the Rules

and Regulations of the Board, 80 Ill. Adm. Code §§ 1200-1300 (“Board’s Rules”), the Board’s

Executive Director determined that the charge involved dispositive issues of fact or law.

Accordingly, on January 5, 2017, the Executive Director issued a Complaint for Hearing

(“Complaint”). The case was heard in Chicago, Illinois, on December 15, and December 16,

2017, by the undersigned. At the hearing, the Charging Party presented evidence in support of

his allegations, and both parties were given an opportunity to participate, adduce relevant

evidence, examine witnesses, argue orally, and file written briefs. After full consideration of the

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parties’ stipulations, motions, 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

1. Chicago Transit Authority (“CTA”) is a public employer within the meaning of Section

3(o) of the Illinois Public Labor Relations Act and is a unit of government under the

jurisdiction of the Local Panel of the Board pursuant to Section 5 of the Act.

2. At all times material, Respondent is a labor organization within the meaning of Section

3(i) of the Act.

3. IAM Automobile Mechanics’ Local 701 (“Local 701”) is a labor organization within the

meaning of Section 3(i) of the Act and the exclusive representation of a unit of

employees working at Chicago Transit Authority. Employees in this unit perform heavy

maintenance on CTA buses and other road vehicles, primarily at CTA’s South Shops

facility.

4. At all times material, Local 701 is the certified exclusive representative of a bargaining

unit (“Unit”) comprised of Bus and Truck Mechanics employed at CTA.

5. Included in the Local 701 bargaining unit is the job classification of Bus and Truck

Mechanic.

6. The Local 701 bargaining unit does not include the similarly-titled position “Bus

Mechanic,” which is part of the unit represented for collective bargaining purposes by

Amalgamated Transit Union, Local 241 (“Local 241”), also a labor organization within

1 Stipulations 2, 4, 7, 11, 12, 15, 16, 19, 20, 24, 25, 27, 28 and 32 are incorporated from the Respondent’s

Answer to the Complaint. Stipulations 1, 3, 5, 6, 8-10, 13, 14, 17, 18, 21-23, 26, 29-31, and 33-36 are

incorporated form the parties’ Joint Statement of Uncontested Facts.

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the meaning of Section 3(i) of the Act. Local Bus Mechanics perform day-to-day

preventative maintenance and minor repairs at CTA bus garages.

7. At all times material, the CTA and Respondent are parties to a collective bargaining

agreement (“CBA”) for the Unit.

8. CTA and Local 701 are parties to a series of collective-bargaining agreements, including

an agreement effective January 1, 2010, through December 31, 2011, as modified by a

tentative agreement between the parties effective January 1, 2012, through December 31,

2015. Negotiations have not yet been concluded on a successor to the 2012-15

Agreement, the terms of which remain in effect.

9. The Charging Party, Al Wagner has been a member of Local 701 since June 1999.

10. Wagner was employed for over fifteen years as an automobile mechanic for Oakbrook

Toyota, which is signatory with Local 701.

11. In or about August of 2014, Charging Party worked in the private sector as a full-time

mechanic for Oakbrook Toyota (a Local 701 union shop).

12. In or about August of 2014, Charging Party ran for the position of Business

Representative for Local 701.

13. Business Representative is an elected position with Local 701. Pursuant to the Local 701

By-Laws, should a vacancy occur in the position of Business Representative, the

Directing Representative has authority to appoint a member to fill the vacancy, subject to

the approval of Local 701’s executive Board. This case not involve an appointment to fill

a vacant Business Representative position.

14. Wagner unsuccessfully ran for Business Representative in August of 2014.

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15. At all times material, Mark Utley has been a Business Representative for Respondent

Local 701 and was an agent authorized to act on its behalf.

16. Respondent was aware of Charging Party’s unsuccessful bid to be elected as a Local 701

Business Representative.

17. In about December 2014, Wagner called Mark Utley to inquire how to get a job at CTA.

18. On or about January 28, 2015 while still working for Oakbrook Toyota, Wagner applied

with Chicago Transit Authority for a position as a Bus Mechanic.

19. On or about January 28, 2015, Charging Party applied for a Bus Mechanic position with

the CTA that was represented by Amalgamated Transit Union (“ATU”), Local 24[1].

20. In or about February 2015, Charging Party passed the written portion of the test for the

Bus Mechanic position referenced in [Stipulation 19].

21. As part of his application process for the Bus Mechanic position, Wagner took and

passed both a written exam on February 11, 2015, and a practical skills test on February

18, 2015. On February 25 he interviewed with CTA for the Bus Mechanic position. On

the basis of the interview and test results, CTA placed Wagner in a pool for consideration

when a Local 241 Bus Mechanic position became available Wagner told CTA Talent

Acquisition Associate Jessica Holloway during his February 25 interview that he was not

interested in the Local 241 position and wanted to “stay with Local 701.” Wagner

showed Jessica Holloway his Local 701 book, of which Holloway made and kept a

photocopy, as proof of his membership in Local 701. Wagner expressed to Holloway

during the interview that he thought he had applied for a Local 701 Bus and Truck

Mechanic position.

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22. CTA gave Wagner a written test for a Local 701 Bus and Truck Mechanic position on

March 27, 2015, and a practical skills test on May 7, 2015. Wagner passed both exams.

23. CTA deems Wagner qualified for the Bus and Truck Mechanic position. The parties

dispute whether Local 701 told CTA in January 2016 that Wagner was unqualified for the

position, but for these proceedings Local 701 acknowledges that Wagner is qualified.

24. In or about March 2015, Charging Party took and passed the written test for a Heavy Bus

and Truck Mechanic position represented by Local 701.

25. On or about December 3, 2015, the CTA contacted Charging Party to complete

paperwork for a Heavy Bus and Truck Mechanic position.

26. On December 3, 2015, CTA’s Human Resources Department contacted Wagner to offer

him a position as a Bus & Truck Mechanic in the IAM Local 701 bargaining unit.

Wagner started working at the CTA as a Local 701 Bus and Truck Mechanic on January

4, 2016.

27. On or about January 4, 2016, Respondent hired Charging Party and he began work as a

Heavy Bus and Truck Mechanic, a position represented by Local 701.

28. Beginning in January 2016, Charging Party has been a public employee within the

meaning of Section 3(n) of the Act employed as a Heavy Bus and Truck Mechanic.

29. On January 11, 2016, CTA Human Resources employees Katie Doyle and Therese

Fletcher-Brown met with and interviewed Wagner, who was accompanied by Local 701

Union Stewards Earl Marshall and Steve Burnette.

30. On January 13, 2916, CTA’s Vice President of Human Resources Alex Moreno and

Debra Jackson met with Wagner, who accompanied by Local 701 Union Stewards Earl

Marshall and Steve Burnette, and told Wagner that he had been offered the Local 701

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position in error. During that meeting, Moreno offered to place Wagner in the Local 241

Bus Mechanic position, but Wagner declined. Moreno informed Wagner that if he

refused to accept the Local 241 position, CTA would administratively separate him from

employment. Wagner indicated that he understood, but declined to accept the position.

31. Effective January 13, 2016, CTA administratively separated Wagner from his

employment with CTA. CTA uses the term “administrative separation” to refer to a non-

disciplinary termination of employment; an employee who, like Wagner, is

administratively separated is eligible for future re-hire by CTA.

32. In or about January 2016, Marshall filed a grievance on Charging Party’s behalf, alleging

that he should not have been terminated.

33. On about January 15, 2016, Wagner through Local 701 Union Steward Earl Marshal,

timely submitted a grievance (“the Grievance”) challenging his administrative separation

from CTA.

34. CTA denied the Grievance on the claimed ground that employees in the Local 701

bargaining unit are on a “new probation” for the first ninety days and, as a result, may be

discharged without recourse to the contractual grievance and arbitration procedure.

35. On February 18, 2016, Local 701 declined to pursue the Grievance to arbitration. Local

701 stated its claimed reasons for not pursuing the Grievance in a letter to Wagner dated

February 18, 2016, which is Joint Exhibit 8.

36. Wagner has worked at CTA as a Bus and Truck Mechanic from October 9, 2016, to the

present.

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II. ISSUES AND CONTENTIONS

The Complaint alleges that Respondent violated Section 10(b)(1) of the Act when it’s

agent Mark Utley contacted the CTA and objected to the hiring of Charging Party as a Heavy

Bus and Truck Mechanic, allegedly claiming that Charging Party was: a) not qualified for the

position; b) ineligible to apply for the position because he had not been referred by Local 701;

and c) that the position had not been properly posted to the public; therefore, other applicants

were not afforded an opportunity to apply for the position and when it refused to process the

Charging Party’s grievance. The Complaint also alleges that the Respondent’s actions also

violate Section 10(b)(3) of the Act because it caused the CTA to discriminate against Charging

Party in violation of Section 10(a)(2).

The Charging Party argues that the Respondent breached its fiduciary duty to fairly

represent him through the grievance procedure by siding with the CTA when it refused to

process a grievance on Charging Party’s behalf alleging that he should not have been terminated.

The Respondent argues that it did not object to the Charging Party being hired or attempt

to have him fired. The Respondent also argues that the record does not demonstrate that it or any

of its agents acted with the animus requisite to violate the Act.

III. FINDINGS OF FACT

The CTA hires each employee as a full-time temporary employee for his or her first six

months of employment. At the end of that six months, they employee automatically becomes a

full-time permanent employee with an additional three-month probation as a permanent

employee. The Heavy Bus and Truck Mechanic position Wagner accepted is a full-time

temporary position with a 90-day probationary period pursuant to the CBA between the

Respondent and the CTA.

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Section 2.3 of the operative CBA provides as followed:

2.3 TEMPORARY EMPLOYEES: The Authority will be permitted to hire full-

time temporary employees in accordance with the provisions set forth below.

A. The Authority will provide the Union with notice that temporary help is

required and referrals submitted by the Union will be considered with

applicants from other sources with dues consideration for their qualifications

and abilities and for the Authority’s affirmative action goals.

B. Notwithstanding the foregoing, fifty percent (50%) of open full-time

temporary employee positions will be reserved for Union-referred applicants,

subject to the following conditions:

1. The Union must submit a sufficient number of referred applicants with

required qualifications and abilities and the applicants shall be a mix of

races and genders which allows the Authority to meet its affirmative

action commitments.

2. In making referrals, the Union shall not limit referrals to, or discriminate

in favor of, applicants who are union members. The referral process shall

be open to applicants who are not members of the Union.

3. In making referrals, the Union shall not discriminate against any member

of a protected minority or gender, and shall not reject any applicant for

referral submitted to it by any source if the applicant meets non-

discriminatory Union standards uniformly applied to all applicants.

4. The right of final selection for any full-time temporary position remains

vested in the Authority.

C. Temporary employees will be covered under the sections of the Agreement

dealing with the probationary period, Union membership, Union

representation, grievance procedure, and arbitration.

D. Full-time temporary employees will be subject to a ninety working day

probationary period upon hiring as full-time temporary employees, and will

not be subject to an additional probationary period if hired as full-time

permanent employees.

***

The CTA’s grievance procedures are governed by Article VIII of the operative CBA and

the CTA’s Corrective Action Guidelines. The CBA provides as followed:

8.1 PURPOSE For the purpose of facilitating the peaceful adjustment of

differences that may arise from time to time, and to promote harmony and

efficiency to the end that the Authority, its employees and the general public may

mutually benefit, the Authority and the Union agree to meet and deal with each

other through their duly accredited representative on all differences and

grievances, including the interpretation of this Agreement, and should there be

any differences or grievances that cannot be amicably adjusted between the

respective properly accredited representatives of the Authority and of the Union,

the same shall be submitted to Arbitration.

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8.2 GRIEVANCE A grievance shall be defined as any dispute or difference

between the authority and an employee or group of employees, or between the

Authority and Union with respect to the meaning, interpretation or application of

the terms and provisions of this Agreement.

Recognizing that grievances should be raised and settled promptly,

grievances must be raised and processed within the specified time limits. The

specified time limits may be extended by mutual agreement.

8.3 PROCEDURE Grievances will be processed in the following manner:

Step 1: A grievance shall initially be addressed through informal

discussion between the aggrieved employee and/or a representative of a group of

aggrieved employees with or without their union steward, and the Department

Manager as promptly as possible. If the grievance is not resolved through

informal discussions, the grievances must be submitted in writing by the Union to

the Department Manager or designee by delivering a copy to Employee Relations.

The grievance must be submitted by the Union within fifteen (15) working days

of the occurrence or knowledge of the occurrence giving rise to the grievance.

The Department Manager or designee shall investigate the grievance. The

Department Manager or designee shall provide a written response to the Union

setting forth the basis for the response within fifteen (15) working days of receipt

of the grievance.

Step 2: If the grievance is not resolved at Step 1 and the Union

desires to appeal, it shall be referred by the Union to the Vice President,

Employee Relations, or designee within fifteen (15) working days after receipt of

the Authority’s answer at Step 1.

***

Corrective Action Guidelines provide as followed:

Probationary Period

All new employees of the Authority will be on probationary status for a specified

length of time as follows:

***

• Employees who are represented by unions other than the Amalgamated

Transit Union are on probationary status for their first ninety (90) working

days of employment with the Chicago Transit Authority.

During probationary period, CTA management will consider whether or not

continued employment with the Authority is beneficial to the employee and the

CTA.

Employees will be evaluated on their compliance with the Authority rules,

policies and procedures, and overall job performance. Any of the following

entries during the applicable probationary period will result in termination. The

decision to terminate employment will be based on the employee’s performance

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and will be made without exception and without regard to the reason for the rule

violation or unexcused absence.

• Any suspension of any violation of company rules (for operating personnel,

accidents will be handled on a case by case basis)

• Any three (3) instances of rule violations

• Any instances of absence without leave (A.W.O.L.)

• Any three (3) instances in combination of misses, tardies, or other unexcused

absences.

***

Pursuant to the CBA, when the CTA has vacancies in the Local 701 bargaining unit 50%

of those positions need to be filled with qualified Union referrals, and 50% from CTA referrals.

Those Union referrals submitted in writing from Business Representative Mark Utley. Those

applicants must then apply through the CTA’s online system. Once the online application is

submitted, CTA’s Human Resources Department removes unqualified candidates. Then, the

applicant undergoes the testing process which consists of a practical and written test. After

successful completion of those tests, the applicant is interviewed by a recruiter from CTA’s

Human Resources Department. Finally, the successful applicant is placed in the CTA’s hiring

pool for that position, and when a position is vacant the CTA hires from that pool. Once the pool

has been depleted or is near depletion, CTA’s Human Resources then begins the process again

by posting a vacancy, and obtaining applications. Local 701 Union Steward Earl Marshall

testified that he has seen employees being hired without a position being posted but he has never

filed a grievance over such an issue.

As the parties stipulated, in August 2014, while he was employed at Oakbrook Toyota

and the member of a different 701 bargaining unit, Wagner unsuccessfully ran for Business

Representative. In or around November 2015, Sam Cicinelli and Utley called Marshall and

asked him why he was friends with Wagner on Facebook. Utley also asked Marshall if he knew

that Wagner was the one that ran against Cicinelli for Business Representative.

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In December 2015, Wagner asked Marshall about employment at the CTA. Marshall told

Wagner that the best route would be to talk to Utley, Local 701’s Business Representative for

CTA employees, that Wagner needed to fill out the application online, and submit a resume to

Utley. Wagner then called Utley, identified himself and informed Utley that he believed that

there was an open position for a 701 Bus Mechanic. Utley told Wagner that he should go online

and check for a job posting on the CTA’s website. Utley testified that he could not remember if

he told Wagner to apply, that he does not believe that he did, but that “I guess I could have.” He

further testified that he referred Wagner to CTA’s website but that he did not hear back from

Wagner. Utley testified that the correct procedure was for Wagner to provide Utley with a

resume so that Utley could place Wagner on a referral list, but that he does not solicit people to

submit resumes. The record does not indicate that Utley told Wagner to submit a resume to him.

On or around January 1, 2016, Utley received a text from Unit member Bob Malloy.

Malloy told Utley that there was a rumor that a new mechanic was starting the following week

and was concerned that to test for the open position now filled. Wagner started his position with

the CTA on January 4, 2016. Utley receives a monthly email from the CTA which includes new

hires, active roster identifying hire date, transfers and terminations. When the CTA hires a new

employee, the Union steward completes the application and turn in the paperwork at the Union

meeting. On or around January 8, 2016, Utley reviewed the current roster list and noticed that

Wagner was listed with a start date of January 4, 2016. Utley testified that he recognized

Wagner’s name because he remembers that he ran for Business Representative. Utley then

called CTA’s Labor Relations General Manager Katharine Lunde. Lunde testified that Utley

asked her if Wagner was qualified based on the CTA’s job requirement and how was Wagner

hired when the CTA had not posted for this position in quite some time.

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In response, Lunde went to the CTA’s Human Resources Department and inquired about

the recent hire and how that hiring process had gone. Based on those discussions Lunde testified

that she concluded that Wagner was qualified for the position based on his resume, but that he

had not gone through the proper procedures to be hired. She further concluded that Wagner

originally applied for a position in Local 241, and that in the interview, he had asked the Human

Resources recruiter that since he was already a Local 701 member, could he be considered for

the Local 701 position. Lunde also testified that the recruiter was a “reasonably new” and took a

copy of Wagner’s union card and put him in to the system as somebody who could potentially be

eligible to be hired to a Local 701 position, despite that he had never applied for the Local 701

position, and that the Local 701 position had not been posted for approximately eighteen months.

Lunde testified that at that time the hiring pool for that position was close depletion.

The position description for the 701 Heavy Bus and Truck Mechanic, dated August 2007,

requires the employee:

to have successfully progressed through the Bus & Truck Mechanic Apprentice

program, or have served required tenure in each position of the job family; or

possessed a minimum of five years verifiable work experience in a recognized

heave-duty diesel truck or bus shop(s) or have related work experience and a

certificate/diploma in an automotive repair from an accredited trade school or

college.

The employee must satisfy this requirement before the applicant is allowed to take the written or

practical test. Wagner has the minimum work experience and a certificate from trade school.

Marshall testified that he is aware of at least one 701 heavy bus and truck mechanics that was

hired with only automotive dealership experience.

On January 11, 2016, CTA Human Resources employees Katie Doyle and Therese

Fletcher-Brown met with and interviewed Wagner, who was accompanied by Local 701 Union

13

Stewards Earl Marshall and Steve Burnette. Fletcher-Brown told Wagner that she was looking

into allegations that Wagner was not hired for the position.

January 13, 2016 the CTA held a termination hearing where CTA representatives Alex

Moreno and Debra Jackson met with Wagner, who accompanied by Local 701 Union Stewards

Earl Marshall and Steve Burnette, and told Wagner that he had been offered the Local 701

position in error. Wagner and Marshall testified that the CTA offered several reasons for

separating Wagner, including that he was not qualified and that the assemblers did not get a

chance to take the test, and that he was not referred by the Union, but Marshall insists that he

referred Wagner. Utley testified that as the Business Representative only he could give the CTA

referrals. Burnette testified that a Union representative asked Burnette why he was representing

Wagner regarding his discharge. During that meeting, Moreno offered to place Wagner in the

Local 241 Bus Mechanic position, but Wagner declined. Moreno informed Wagner that if he

refused to accept the Local 241 position, CTA would administratively separate him from

employment. Wagner indicated that he understood, but declined to accept the position.

Isaac Ellis was the foreman in the shop that Wagner worked at in January 2016. On or

around January 13, 2016, the CTA informed Ellis that Wagner was no longer employed at the

CTA. Ellis contacted Utley and Utley told him that Wagner was not qualified for the position,

and that he had to protect the sanctity of the contract between the Union and the CTA. CTA’s

Vice President of Human Resources decided to terminate Wagner. On January 14, 2016,

Fletcher-Brown wrote an IRAC Summary regarding Wagner’s employment, and placed the

summary in Wagner’s personnel file. Lunde testified that she this is the only IRAC Summary

she has ever seen completed.

14

Burnette testified that in his three years as a Steward, has never seen the Union question,

investigate or object to a new hire. Ellis testified that in his twenty-two years with the Union, he

has never seen the Union object to a new hire. Marshall also testified that in his 23 years at the

CTA he has never seen the Union object to a new hire.

In or about January 2016, Marshall filed a grievance on Charging Party’s behalf, alleging

that he should not have been terminated.

On January 29, 2016, Lunde issued a letter in accordance with Step 1 of the grievance

procedure. The letter reads as followed:

Dear Mr. Utley:

Labor Relations is in receipt of Grievance 701-03 dated January 15, 2016

(the “Grievance”), in which Local 701 Steward Earl Marshall grieves the

administrative separation of one Albert Wagner.

Notable, the Grievance does not appear to comport with the Collective

Bargaining Agreement between Local 701 and CTA. Article 8.3 of the CBA

requires that a “grievance must be submitted in writing by the Union to” CTA.

This Grievance was submitted directly by the employee to the work location on

January 15, 2016. This issue was corrected by it being submitted to Labor

Relations on January 18, 2016.

This Grievance is denied as non-grievable. Mr. Wagner was hired on

January 4, 2016 and administratively separated on January 13, 2016. Per both the

Collective Bargaining Agreement between the CTA and Local 701 and the

bargained-for Corrective Action Guidelines, employees are on a new hire

probation for their first 90 days. As Mr. Wagner was only CTA employee for

nine calendar days, he was still on his new hire probation and thus not eligible for

recourse to the grievance and arbitration procedure. This probation cannot be

avoided by filing the grievance through a Steward.

For the reasons listed above, the Grievance is denied.

***

In late January or early February of 2016, Business Representatives Utley, Cicinelli, Bill

Lepinske and Armando Arreola addressed the Unit upstairs in the lunchroom at the CTA South

Shops. Ellis attended the meeting and testified that Unit “members were adamantly saying in

that meeting that Wagner should have [his] job back, and that [Wagner] should not be dismissed

on the grounds of the Union saying to the company that [he wasn't] qualified.” Utley denied that

15

he stated that Wagner was unqualified. Unit members also asked why Wagner had been

terminated, but Union representatives did not answer that question.

Arreola is a Business Representative for 701, but not for CTA employees. Cicinelli

assigned investigating Wagner’s grievance to Arreola. Arreola testified that Cicinelli assigned

him instead of Utley because Wagner’s allegations were related to Utley. Initially, Arreola told

Wagner that based upon his research and the evidence Wagner provided, Arreola concluded that

Wagner had every right to file a grievance. On February 5, 2016, Arreola called Lunde and told

her that he found no evidence that Wagner was not able to go through the grievance procedure.

Either before or after Arreola called Lunde, he asked Wagner if he would drop the instant unfair

labor practice charge against Utley for his job back. At a different meeting involving Arreola,

which took place at the CTA barn, Arreola stated that the Union was open to using one of 701’s

hire positions to have Wagner placed and reinstated.

On February 15, 2016, Arreola, Lunde, two other CTA representatives, Marshall, Wagner

and Burnette attended a meeting regarding Wagner’s grievance. Marshall proposed a settlement

agreement stating that “this can all go away.” The CTA rejected the settlement agreement

stating that Wagner’s grievance was not grievable. Local 701 and the CTA held a grievance

meeting. At the conclusion of the meeting, the Union and the CTA agreed to defer the grievance.

On February 18, 2016, Arreola wrote the following letter to Wagner:

As you know, I have been assigned to investigate your termination

grievance filed on January 15, 2016. Your grievance has been process and

thoroughly investigated encompassing all facets alleged. Your grievance alleges

breach of the agreement between Automobile Mechanics Union Local 701 and

the CTA (the Authority) along with several other claims. During the course of the

investigation I gathered information from multiple sources including yourself.

The information I have received thus far does not support the claims being made

in the grievance.

However, I did discover that when the CTA offered you employment on

December 14, 2015 (Conditional Offer letter), it was in violation of the CBA

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(Article 2 sect. 2.3). Though the CTA has the inherent right to hire employees, it

must do so in accordance with the provisions in the respective Collective

Bargaining Agreement. In your case, the Authority failed to “provide the Union

with notice that temporary held was required.” Additionally, the CTA

disregarded the referral process that is earmarked for Local 701 in the CBA.

In spite of these violations, the parties to this Agreement support the view

that probationary employees cannot avail themselves through the grievance

procedure. Because you were employed for ten calendar days you were

considered a probationary employee. Furthermore, the remedy being sought in

the grievance would perpetuate a violation of the agreement between the parties.

For these reasons your grievance is denied and the CTA’s decision to

administratively separate employment is upheld. In sum, your grievance merits

no further process.

***

Arreola testified that upon review of Section 2.3 of the parties’ CBA, and the Corrective

Action Guidelines, it was within the CTA’s authority to sever Wagner’s employment. He further

testified that, in his opinion, pursuing the grievance to arbitration would have been unsuccessful

based upon the plain language in the Corrective Action Guidelines and the CBA. Arreola

testified that neither Cicinelli nor Utley influenced his decision not to pursue the grievance.

Finally, Arreola testified that there was correlation between his decision not to pursue the

grievance and Wagner’s running for Business Representative in 2014. Utley testified that he did

not take any action to preserve Wagner’s job, nor was he asked to take any action.

Lunde testified that by early January of 2016, the CTA had depleted the hiring pool so it

reopened a posting in early 2016 and reached out to Local 701 for a list of qualified applicants.

Bob Malloy was a CTA employee for less than two years, when he was promoted into

journeyman mechanic. Malloy was an instructor at Lincoln Tech, and he had the experience as

far as the education and diesel experience and automotive experience from teaching, and they

counted that towards his time to take the test. Malloy was promoted into the position that

Wagner was administratively separated from. On February 24, 2016, the CTA posted a vacancy

17

for the 701 Heavy Bus and Truck Mechanic position. On March 11, 2016, Utley submitted a list

of referrals to the CTA. Wagner was not on that list.

On October 18, 2016, at a Step 2 grievance meeting, the Union informed the CTA that

Wagner had been reinstated and believed that Wagner’s grievance should be considered

resolved, and the CTA agreed. CTA Manager of Contract/Labor Relations Elvira Beltran

memorialized this resolution in a letter dated, November 2, 2016, where she wrote that Wagner

was reinstated pursuant to a settlement. Utley testified that on October 18, 2016, he was at a

meeting for an unrelated matter and the CTA representative informed him that it had never

received any official documentation from the Union withdrawing the grievance. Utley testified

that he told the CTA that as far as he knew Arreola had closed the matter. Utley and Lunde

testified that Wagner was not reinstated, but rather he was a new hire. Had Wagner been

reinstated his seniority date would be January 4, 2016, rather than October 9, 2016. Utley further

testified that the Union and the CTA did not settle Wagner’s grievance, but that the Union

withdrew the grievance in February 2016.

Utley testified that the CTA rehired Wagner in October 2016 because after the CTA

administratively separated Wagner, Utley received Wagner’s resume from Union Steward

Burnette, who received it from Earl Marshall, and Utley then placed Wagner on a referral list.

The record includes several referral lists, but does not include a list with Wagner’s name on it.

IV. DISCUSSION AND ANALYSIS

Respondent did not violate Sections 10(b)(1) or 10(b)(3) of the Act when it contacted the

CTA and objected to the hiring of Charging Party as a Heavy Bus and Truck Mechanic or when

it refused to process the Charging Party’s grievance regarding his termination.

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A. 10(b)(1)

Respondent did not violate Section 10(b)(1) of the Act when it objected to the hiring of

Charging Party as a Heavy Bus and Truck Mechanic or when it refused to process the Charging

Party’s grievance.

It is an unfair labor practice under Section 10(b)(1) for a Union “to restrain or coerce

public employees in the exercise of the rights guaranteed in this Act.” 5 ILCS 315/10(b)(1).

Section 10(b)(1) also provides that a labor organization violates its duty of fair representation

only by intentional misconduct in representing employees. 5 ILCS 315/10(b)(1)(ii). To

demonstrate intentional misconduct within the meaning of Section 10(b)(1), a charging party

must prove by a preponderance of the evidence, that: (1) the union’s conduct was

intentional, invidious and directed at him; and (2) the union’s intentional action occurred because

of and in retaliation for some past activity by the employee or because of the employee’s status

(such as race, gender, or national origin), or animosity between the employee and the union’s

representatives (such as that based upon personal conflict or the employee’s dissident union

practices). Metro. All. of Police v. State of Ill. Labor Rel. Bd., Local Panel, 345 Ill. App. 3d 579,

588 (1st Dist. 2003); Murry v. Am. Fed’n of State, Cnty., and Mun. Empl., Local 1111, 305 Ill.

App. 3d 627 (1st Dist. 1999), aff’g Am. Fed’n of State, Cnty., and Mun. Empl. Local 1111

(Murry), 14 PERI ¶ 3009 (IL LLRB 1998); Am. Fed’n of State, Cnty., and Mun. Empl. Local

2912 (McGloin), 17 PERI ¶ 3001 (IL LLRB 2000). To have a viable claim under

Section 10(b)(1) of the Act, a charging party should allege this unlawful motive with a showing

of fraud, deceitful actions or dishonest conduct by the Union. Am. Fed’n of State, Cnty., and

Mun. Empl. Council 31 (Hughes), 20 PERI ¶ 88 (IL LRB-SP 2004); IBEW, Local 134 (Daniels),

7 PERI ¶ 3030 (IL LLRB 1991), citing Hoffman v. Lonza, Inc., 658 F. 2d 519 (7th Cir. 1981).

19

In duty of fair representation cases, the charging party must first; establish a prima facie

case by demonstrating, by a preponderance of the evidence, that 1) the employee has engaged in

activities tending to engender the animosity of union agents or that the employee’s mere status,

such as race, gender, religion or national origin, may have caused animosity; 2) the union was

aware of the employee’s activities and/or status; 3) there was an adverse representation action by

the union; and 4) that the union took the adverse action against the employee for discriminatory

reasons, i.e., because of animus toward the employee’s activities or status. Metro. All. of Police

v. State of Ill. Labor Rel. Bd., Local Panel, 345 Ill. App. 3d at 587-588; Am. Fed’n of State,

Cnty., and Mun. Empl., Council 31, (Robertson), 18 PERI ¶ 2014 (IL LRB-SP 2002).

To prove the requisite causal connection between the employee’s protected activities and

the adverse representation action, the charging party must submit direct or circumstantial

evidence establishing the union’s unlawful motive. Metro. All. of Police v. State of Ill. Labor

Rel. Bd., Local Panel, 345 Ill. App. 3d at 589. Circumstantial evidence is the proof of certain

facts and circumstances from which the fact finder may infer other connected facts that usually

and reasonably follow according to common experience. Id. Such circumstantial evidence

includes the timing of the union’s action in relation to the employees’ activities; expressions of

hostility toward protected activities; disparate treatment of employees or a pattern of conduct

targeting certain employees for adverse action; inconsistencies between the proffered reason for

the adverse action and other actions of the union; and shifting or inconsistent explanations for the

adverse representation action. Id.; citing City of Burbank v. Ill. State Labor Rel. Bd, 128 Ill. 2d

335, 345-346 (1989).

If a charging party establishes a prima facie case, the burden then shifts to the union to

demonstrate that it would have taken the same adverse representational action even absent the

20

charging party’s participation in the protected activity. Metro. All. of Police v. State of Ill. Labor

Rel. Bd., Local Panel, 345 Ill. App. 3d at 589. The union can escape liability if it proffers a

legitimate explanation for its adverse representational actions and the Board ultimately

determines that the explanation is not pretextual. Id.

i. Respondent’s objection to Charging Party’s hire

The Charging Party did not satisfy his prima facie case regarding the Respondent’s

objection to the CTA hiring him because he did not demonstrate that the Respondent’s agent

Mark Utley acted with unlawful animus when he objected to the hiring of Charging Party as a

Heavy Bus and Truck Mechanic.

The parties have stipulated that the Charging Party ran for Business Representative and

that the Respondent was aware of the Charging Party’s candidacy. Additionally, because the

record demonstrates that the Charging Party ran against Cicinelli, Charing Party’s participation

in that election could have caused Cicinelli and Utley to be hostile to the Charging Party.

Utley’s response to being informed of the Charging Party’s hire constitutes an adverse

representation action because it directly resulted in the Charging Party’s termination from the

CTA.

However, there is insufficient circumstantial evidence to conclude that Utley took such

action because of animus toward the Charging Party’s running for Business Representative. The

timing is not suspicious because Wagner ran for Business Representative in August 2014, and

these events took place over one year later. Cicinelli’s and Utley’s questioning Marshall about

being Facebook friends with Wagner, demonstrates that they remembered Wagner from the

election, but is too vague to constitute an “expression of hostility” because without more

information the reason for the statement is subject to many interpretations. There is no evidence

21

of the Respondent or any of its agents engaged in a pattern of disparate treatment of other union

members who ran against Cicinelli in the election. Marshall, Burnette, and Ellis all testified that

the Respondent had never before questioned or objected to a hire, and the record strongly

suggests that the CTA has a habit of hiring for this position without first publishing a posting or

hiring form the list of CTA referrals. However, Utley testified that he cannot specifically

identify an incident where he was aware the CTA hired a Unit employee without posting the

position. Here, he was notified by another Unit member that the CTA hired an employee for a

position without first posting the position.

The Respondent did not provide shifting explanations for its objecting to the Charging

Party’s hiring. The Charging Party contends that the Respondent offered several reasons for

objecting to his hiring, including that he was not qualified, that he should not have been hired for

a position that was not posted because the assemblers did not get a chance to test for the position,

and that he was not referred by the Union. The record indicates that these are not shifting

reasons, but that the Union simply objected for multiple reasons. First, regarding the Charging

Party’s qualification, Utley and Lunde contend that Utley never stated to anyone from the CTA

that the Charging Party was unqualified for the position. The record is clear that prior to

Wagner’s January 11, 2016, meeting with Fletcher-Brown, Fletcher-Brown determined that

someone had made that allegation because that is what she told Wagner in that meeting.

However, without testimony from Fletcher-Brown attributing that allegation to Utley, I cannot

conclude that he made that allegation. The testimony provides that Utley questioned Lunde

about Wagner’s qualifications, and this questioning is consistent with the fact that around that

time the CTA changed the qualifications for the position, and is not sufficient to infer that his

questioning was based upon Utley’s animus for Wagner. Regarding the posting, the Respondent

22

is correct, to hire an employee for a position that is not posted raises a question of whether the

CTA violated the operative CBA. Finally, the Respondent did not refer the Charging Party to the

CTA for hiring. Marshall told the Charging Party to contact Utley regarding referrals, but Utley

never referred Wagner because Wagner did not follow up with Utley after checking the CTA’s

website for a job posting. Furthermore, the Respondent could not have referred Wagner at that

time because the CTA did not have a posting for a 701 position, and Wagner was hired after

applying for a 241 position. Accordingly, The Charging Party has not satisfied his prima facie

case regarding Utley’s objection to the CTA hiring the Charging Party.

ii. Respondent’s refusal to process Charging Party’s grievance

The Charging Party did not satisfy his prima facie case regarding the Respondent’s

refusal to process his grievance because he did not demonstrate that the Respondent’s agent

Arreola acted with unlawful animus when he refused to process the Charing Party’s grievance.

Section 6(d) of the Act provides that “nothing herein shall be construed to limit an

exclusive representative's right to exercise its discretion to refuse to process grievances of

employees that are unmeritorious.” 5 ILCS 315/6(d). However, a union violates Section

10(b)(1) of the Act when it refuses to process a unit member’s grievance because of a

discriminatory motive. See Am. Fed’n of State, Cnty., and Mun. Empl. Council 31 (Hughes), 20

PERI ¶ 88.

As discussed above, the Charging Party must first satisfy his prima facie case. The

parties have stipulated that the Charging Party ran for Business Representative and that the

Respondent was aware of the Charging Party’s candidacy. Additionally, because the record

demonstrates that the Charging Party ran against Cicinelli, the Charging Party’s participation in

23

that election could have caused Arreola’s hostility. Arreola’s refusal to process the Charging

Party’s grievance hire constitutes an adverse representation action.

However, there is insufficient circumstantial evidence to conclude that Arreola took such

action because of animus toward the Charging Party’s running for Business Representative. The

timing is not suspicious because Wagner ran for Business Representative in August 2014, and

Arreola refused to process the grievance in February 2016. The record contains no expressions

of hostility toward protected activities from Arreola. Arreola has not engaged in disparate

treatment of employees or a pattern of refusing to process grievances for employees who ran and

lost the election for business representative. Arreola has not provided shifting or inconsistent

explanations for his refusal to advance the Charging Party’s grievances. The only action that

Arreola took that might contribute to a finding that he was motivated by animus, is that he

initially told the Charging Party that he thought the grievance could be processed but then

subsequently changed his mind. This alone is not sufficient to conclude that he changed his

mind with the intention of discriminating against the Charging party because he ran in the

election. Accordingly, the Charging Party has not satisfied his prima facie case regarding the

Respondent’s refusal to process his grievance.

B. 10(b)(3)

Respondent did not violate Section 10(b)(3) of the Act when it objected to the hiring of

Charging Party as a Heavy Bus and Truck Mechanic or when it refused to process the Charging

Party’s grievance.

Section 10(b)(3) of the Act provides that it is an unfair labor practice for a labor

organization “to cause, or attempt to cause, an employer to discriminate against an employee in

violation of subsection (a)(2).” 5 ILCS 315/10(b)(3). Section 10(a)(2) of the Act provides that it

24

is an unfair labor practice for an employer “to discriminate in regard to hire or tenure of

employment or any term or condition of employment in order to encourage or discourage

membership in or other support for any labor organization.” 5 ILCS 315/10(a)(2).2 The

language in Section 10(b)(3) of the Act is consistent with the language in Section 8(b)(2) of the

National Labor Relations Act (“NLRA”), 29 U.S.C. § 158. Am. Fed’n of State, Cnty., and Mun.

Empl. Local Council 31 (Jones), 33 PERI ¶ 59 (IL LRB-SP 2016). Under Section 8(b)(2) of the

NLRA a union commits an unfair labor practice when it attempts to cause an employer to

discriminate in order to retaliate against an employee for protesting the union’s policies,

questioning the official conduct of union agents, or incurring the personal hostility of a union

official. Radio Officers v. NLRB, 347 U.S. 17 (1954). Even though the alleged adverse action,

if taken by the employer alone, would not be a violation of the NLRA because it was not

illegally motivated, a violation may occur if the union was illegally motivated to induce the

employer to take the adverse action. Carpenters Local 2205 (Graves Granite), 229 NLRB 56

(1977).

Here, the Charging Party argues that the Respondent was motivated by the Charging

Party running in an election against Respondent’s agents and took steps that resulted in the CTA

terminating the Charging Party. As discussed above, there is insufficient evidence to conclude

that Respondent’s agent Utley acted out of unlawful animus for the Charging Party running for

2 To establish a prima facie case of a 10(a)(2) discrimination violation, a charging party must prove by a

preponderance of the evidence, that 1) the employee engaged in protected union activity, 2) the employer

was aware of the employee’s protected activity, 3) the employer took adverse action against the

employee, and 4) the employer’s action was motivated in whole or in part by anti-union animus with the

intent to discourage or encourage union membership or support. See Sheriff of Jackson Cnty. v. Ill. State

Labor Rel. Bd., 302 Ill. App. 3d 411, 415 (5th Dist. 1999); City of Elmhurst, 17 PERI ¶ 2040 (IL LRB-SP

2001). To satisfy the motivation element, a charging party must link the employee’s union activity to the

adverse action, such that the union activity was the employer’s substantial or motivating factor in

deciding to implement the adverse action in question. City of Burbank v. State Labor Rel. Bd., 128 Ill. 2d

335, 346 (1989) (“City of Burbank,”). This is often referred to as discriminatory motive.

25

Business Representative when he objected to the hiring of Charging Party as a Heavy Bus and

Truck Mechanic. Also, as discussed above, there is insufficient evidence to conclude that

Respondent’s agent Arreola acted out of unlawful animus towards the Charging Party for

running for Business Representative when he refused to process the Charging Party’s grievance.

Accordingly, the Charing Party has not proven that Respondent violated Section 10(b)(3) of the

Act when it objected to the hiring of Charging Party as a Heavy Bus and Truck Mechanic or

when it refused to process the Charging Party’s grievance.

V. CONCLUSIONS OF LAW

1. Respondent, Automobile Mechanics Union, Local #701, did not violate Section 10(b)(1) of

the Act when it objected to the hiring of Charging Party, Al Wagner as a Heavy Bus and

Truck Mechanic.

2. The Respondent did not violate Section 10(b)(1) of the Act when it when it refused to

process the Charging Party’s grievance.

3. The Respondent did not violate Section 10(b)(3) of the Act when it objected to the hiring of

Charging Party as a Heavy Bus and Truck Mechanic.

4. The Respondent did not violate Section 10(b)(3) of the Act when it refused to process the

Charging Party’s grievance.

VI. RECOMMENDED ORDER

IT IS HEREBY ORDERED that the Complaint for Hearing shall be dismissed.

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

26

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 crossexceptions 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 crossexceptions 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.

Issued in Chicago, Illinois this 15th day of June, 2018.

STATE OF ILLINOIS

ILLINOIS LABOR RELATIONS BOARD

LOCAL PANEL

/s/ Deena Sanceda

Deena Sanceda

Administrative Law Judge