*1 COLAW, CIVIL SERVICE Plaintiff-Appellant, v. UNIVERSITY DONALD W. al., SYSTEM et UNIVERSITY CIVIL SERVICE MERIT BOARD OF THE Defendants-Appellees. District No. 12737
Fourth Opinion filed December *2 BARRY, J., dissenting.
Livingston, Brandt, Schroeder, Barger, (Fred & Bloomington Slater B. Moore, counsel), appellant. Costello, Glockner, Timothy Madigan, O. and Warren H. all of James J.
Urbana, appellees. Mr. STENGEL opinion delivered the the court: JUSTICE Plaintiff discharged Donald Colaw was his as from engineer University following broadcast at a hearing of Illinois and University decision sought Civil Service Merit Board. Plaintiff administrative review of the Merit Board decision in the Circuit Court of Champaign County. The court affirmed the decision of the Merit supported findings plaintiff appeals. additional Plaintiff’s discharge from a dispute concerning resulted work assignments of broadcast at WILL engineers a television transmitter Illinois, station located in Piatt County, near Monticello some 30 miles Champaign-Urbana assigned from the campus studios. One operate shift. transmitting equipment station on each union, Workers, engineers’ of Electrical International Brotherhood 702, Local transportation wanted the to furnish from the studio to thé transmitter site. 1, plaintiff February
When assigned to work at the on 1971, reported he instead for work at the studio and insisted on site; being supervisor his furnished to the transmitter refused. Plaintiff a and instructed to given 3-day suspension was then report plaintiff again 4. On that February the transmitter on date reported After again transportation. to the studio and was refused another offering plaintiff switching assignments with alternative of engineer, Plaintiff discharge. sent a notice of the Merit Board requested hearing, Hearing and the Board convened
859 February assigned” “refúsed do work found WILL duty station” at the report assigned “he failed findings of by additional supplemented transmitter. These were as follows: facts years without employee
Plaintiff had been disciplinary given until he was reprimand suspension evidence 1,1971. at for work February appeared Plaintiff days 1971, at studio February February a.m. on 1 and 6:30 both Urbana, he and would work stating ready work County University provided if the him with only transmitter in Piatt. Crowell, plaintiff arid Gene transportation. February On Bensyl steward, Bensyl, R. of William union were offices “Mr. station must at the transmitter that Mr. Colaw either work stated employee in Piatt shifts some other County as directed or switch with Bensyl’s Mr. office discharged. Mr. Colaw Mr. Crowell left be abruptly, claiming switching with another was violation being and intimidated.” they of the contract and threatened 4, 1971, and Plaintiff did Piatt go transmitter on there, 6:30 he transmitter at duty talked with the man on and was 5, 1971, to shut shortly a.m. on thereafter was directed previously given employer down and Plaintiff leave. had not *3 5, the February notice would whether he for work on transmitter. the had been employees The schedule of shifts for television recently that changed working so the selection of hours would not assure concerning place employment. grievance a concurrent of A selection of the was expense and travel for work at time in pending by the Dickens Gene signed the name of local union Joe the Crowell and This had to plaintiff. prior not been decided question. its findings Hearing The Merit Board these of Board confirmed hearing charges found the evidence sustained taken University discharge. against plaintiff just and established decision, judicial
In his Merit complaint review of the Board supported by that the not evidence alleged decision was counsel, circuit hearing arguments asked for reinstatement. After Board, it make directing court to remanded the cause to the Merit The court findings hearing additional of fact additional evidence. without (1) the offer that the Merit whether specified Board should determine: to Bensyl expressly impliedly or by found have been made Mr. 1971; 5, (2) open February remain until 6:30 a.m. for consideration so, officials; if (3) similar any University whether by was made offer any time; such to remain open (4) whether offer was for a similar plaintiff rejected whether such offer or prior February offers 6:30a.m. 5, 1971.
The Merit Board made the following then additional of fact: findings offer,
“A. by Mr. not Bensyl statement did constitute an [T]he express implied, any period or to remain open for of time fact, future Bensyl, and that said statement Mr. not by change offer to alter terms and past or conditions of employment employment agreements prior existed 4, was, Feb. 1971 and a re-statement of the alternatives situated; employees similary available to all and that no offer was made any University of official or expressly Illinois impliedly offered Donald W. of not Colaw alternative reporting 4, his duty February to work at station on 1971.
B. That Bensyl University WilliamR. and the of Illinois make did 4, 1971, February immediately offers to Donald W. Colaw on accept reject employment the conditions and terms of his they 1, prior February existed to the disciplinary 1971 and any Donald W. Colaw expressly impliedly rejected February such offers on 4, 1971,
C. At the the meeting February close of between Colaw, Donald W. Bensyl Gene Crowell and William R. when Donald W. R. Bensyl, Colaw the office existed left of William there express no implied employer offer of from the the employee upon right that was of said conditioned date; and, accept reject at a time or later expressly impliedly offer Illinois made officials at any meeting with W. Colaw on Donald immediately was in rejected by fact W. Colaw Donald 1971.” presented Two issues on appeal: (1) properly are Could the trial court findings hearing remand of fact Board additional without evidence; (2) additional fact of Board Hearing Were and the decision of the Merit that the had cause plaintiff, discharging supported by the record? proper, first
Considering procedure whether the remand argues objecting waived this issue *4 court, question remand order in raise the the trial cannot now appeal. States, first time on v. U.S. In Boston & Main R.R. Co. United 358 68, 34, 3 L. Ed. 2d 107(1958), 79 S. Ct. held that a remand order court nature, interlocutory premature. and that an therefrom was appeal (Gibbs may Since we the record questions presented review all of law
861
Orlandi,
368,
(1963)),
question
v.
of the
27 Ill. 2d
The Administrative Act Rev. Stat. Review 275(b)) deems authorizes the circuit court “to make order amendment, filing of the record of proper completion for the * * is circuit court to remand proceedings power The discretionary. (Sanderson County Zoning Appeals, v. De Kalb Board of 107, App. (2d 1974).) 24 Ill. 3d 54 Dist. Here the circuit court N.E.2d enable it apparently findings required concluded that additional Law to review the Merit Board In 2 Am. 2d Administrative decision. Jur. (1962), it is stated: §765 ” * * in proceedings for further may court or will remand “[T]he by taking may supplied be that some defect the record order evidence, making ambiguous findings, or clarifying further findings.” additional by the approved here was procedure
A remand
similar to the one used
States, 358
R.R.
& Main
v. United
Supreme
United States
Court Boston
34,
(1958).
U.S.
Clearly plaintiff refused assigned to do work February 1 when'he report did not to the WILL required, transmitter as and it is disputed not that his conduct on that day was cause suspension. Whether the February occurrence on to a “recurring” amounted refusal to do work assigned, sufficient discharge, to be is question, the crucial and requires an examination of the evidence concerning the events of February as leading up well as events February employment The contract between plaintifFs union provision contained a for shift by employees beginning selection each semester in the order of their seniority. grievance Earlier proceedings by engineer.employees broadcast in rulings had resulted engineers radio could not select department television shifts and vice versa, worked, and that employees only could select the hours to be not location of their work. Shortly before a list shift February posted selection was management shifts which included two Plaintiff, the 6:30 a.m. p.m. to 2:30 period. time who was second seniority, one, Kolter, selected seniority, who was lower in selected Thereafter, other. assigned County was to the Piatt transmitter, and Kolter assigned was to work at the studio for the period. same time
At that time a pending engineer in which another was contesting assignment during to the Piatt the first Plaintiff, semester under a slightly procedure. different shift selection steward, assistant union co-signed grievance. engineers’ had this The provided contract an travel would be furnished employee “sent out of Champaign-Urbana temporary assignment,” on a and the this employees contending, among things, were plaintiff’s included one-semester at Thus assignments the transmitter. refusal to to the being provided transmitter without dispute engineers related to the unresolved between the and the management broadcasting department. of the television transmitting
Plaintiff’s turning duties at the transmitter involved on the equipment particular sequence, warmup a with a 20-minute broadcasting began. adjustments made actual before which engineer turned on the air until go station could television after refused transmitting equipment. On Inman, sent another supervisor, provide transportation, his own engineer, As late of the transmitter. arrival engineer result the usual day without began broadcasting WILL minutes late warmup time. studio, again Inman sent plaintiff reported
On after transmitter, normal broadcasting began another At about meeting situation. suggested time. Inman then discuss the Bensyl, who was parties 8:30 a.m. concerned met the office Bensyl, charge personnel. Besides of labor relations nonacademic represented by supervisor, Inman Inman’s while management *6 Crowell, persons All plaintiff accompanied by the union stewart. was Bensyl plaintiff that told present hearing, agreed testified at the and all transmitter, a man go at or find that he had two alternatives: to work the he duty; if willing duty happened to switch studio transmitter neither Bensyl no time discharged. be All that mentioned agreed would witnesses his alternative, or did state electing plaintiff deadline for and that meeting was terminated acceptance rejection or of these alternatives. The responded option to switch plaintiff after Crowell on behalf of the contract, Bensyl shifts was in the terms the violation of up threatening intimidating jumped Plaintiff then them. and Crowell that, leaving, plaintiff they and left. Both were Crowell testified Crowell said he wanted to to someone else. talk
Shortly meeting, plaintiff after the and Crowell went to the office labor Faught, negotiated the associate who personnel director for services had University, they meeting contracts where discussed the plaintiff and Faught repeated available to occurred. the alternatives thought permissible stated that shift-switching he alternative that, opinion under earlier under contract. Crowell his reiterated to grievance rulings, employees not allowed select location were assignment. their a.m., office, plaintiff submitted Faught’s
About 10:30 after leaving entitled, Inman days Inman a to which he was but request vacation process then approve discharge papers refused it because aware being plaintiff then he wasn’t prepared. Inman testified that said that when replies limit Inman decision on the alternatives. he had it Inman that plaintiff meeting, walked out of the indicated to no rejected then that there was plaintiff both Inman told alternatives. keys work for him at the Plaintiff was not asked for day. studio transmitter, p.m. 4 and 5 and he went home about noon. Between engineer day, same to the station ask plaintiff went transmitter duty assignment how never had that equipment to start the since he had and then left. He later returned to briefly the studio about 6:30 7 p.m., but did not notify Inman of any decision. On morning plaintiff reported to the at 6:30a.m. began the warming- up procedures. Plaintiff was told by telephone Inman to shut the machinery down and return studio because he had been discharged. Upon studio, his return to the he was asked turn in his keys, which he did. He received a discharge by notice of mail later the same day.
On appeal, plaintiff contends that certain additional findings of fact against Board were weight First, manifest of the evidence. disputes he presented alternatives by Bensyl required an immediate acceptance rejection. Admittedly, there is no evidence that Bensyl expressly stated that one of the alternatives must accepted be the meeting or any specific before deadline. Bensyl testified that “I indicated language words, that was In immediate. it was now.” His recollection of the language used was: “You have two alternatives, that, and barring we have no choice but discharge you.” However, considering work, plaintiffs the nature of we believe the Merit Board could reasonably infer that the offer was one that knew he accept must reject within very short time. Without an physically present a.m., at the transmitter at 6:30 WILL forgo must either part of the warmup late; begin therefore, time or broadcasting must have or should have options known that the proposed by Bensyl could not remain unanswered until 6:30 a.m. the next morning without interfering materially with work of department. the television Plaintiffs work was key operation the entire television day. each
Furthermore, a.m., at 10:30 2 hours meeting, plaintiff after the *7 by informed Inman that discharge papers being prepared. were This constituted actual notice that the two open alternatives were not for an indefinite period. then, gave Even he no indication that he intended to accept alternatives, one of fact, the in and testimony, own he made no attempt notify to any Inman or person authority other that he had made any such facts, decision. Considering all of these we conclude the Merit Board’s finding against was not the manifest weight the evidence.
Second, plaintiff disagrees with the finding Merit Board’s plaintiff expressly impliedly rejected and him. the alternatives offered Although plaintiff state, alternatives,” reject did not “I both Board could take into plaintiffs account At meeting conduct. the with Bensyl, plaintiff did repudiate not switching Crowell’s statement that the contract, alternative would plaintiffs violate employment and he left the first meeting abruptly without indicating approval of either alternative. persisted He in the same conduct the subsequent interview with Furthermore, that, by requesting it vacation Faught. could be inferred not to indicated that he did intend beginning plaintiff solution his a different to accept seeking alternative but instead was either that, by Inman being told upon There is no evidence problem. immediate the rejection a departure Bensyl’s that his officeindicated abrupt from offer, went home plaintiff disputed he that conclusion. Instead denied superior that he to Inman or attempt notify and made no This evidence day. to transmitter the next report intended to the finding rejected both alternatives plaintiff substantiates the February 4. argues Bensyl’s error to find that statement
Plaintiff also that was change past was not the and conditions of an offer to or alter terms was, employment prior that existed to and similarily all situated. employees restatement of alternatives to available record, carefully searching After we can find no direct evidence plaintiff’s support finding. apparently of this The Merit Board construed employment to work locations permit employees contract to switch among subject approval. An earlier themselves to that, contract, decision could not select the employees had held under the hours, to location their work but with the have the only right However, sole did not assign work locations. the contract preclude reassignment University during course employees of a presented semester. Therefore the switch alternative as reassign plaintiff, subject could be construed as an consent offer to of both and employee. some other that, argues supported by
Plaintiff also if even evidence, February 1 4 did report his failure to the transmitter on dismissal, not cause” has been defined “just constitute term courts, “recurring” and the two offenses of incidents were Rules. In v. frequency sufficient within the Civil Service Tudor come 907, 910, 267 Service Ill. N.E.2d App. Civil Merit 2d (4th 1971), discharge Dist. cause for court reiterated means in his shortcoming “some substantial which renders continuance discipline office or way some detrimental to public service which law and a sound efficiency something opinion place.” recognize good occupying as a his not longer with reviewing compliance court work “punctuality considered discharge rules” to of a discipline, accordingly be essential to affirmed janitor during 2-year period unauthorized from work absences and for time. drinking liquor University intoxicating Tudor, critical to the janitor plaintiff’s position
Unlike the efficiency department of his and therefore his failure *8 University. 2 In days transmitter on was much more to the detrimental 866 instances, susceptible differing
some
was
evidence here
inferences.
However,
something
there must be
more than a mere conflict in the
evidence to warrant a
that a
fact is
finding
conclusion
erroneous.
Com.,
115,
v.
Ill.
(1951).
Fischer
Industrial
ALLOY, J.,P. concurs. BARRY, Mr. dissenting: JUSTICE agreement The between Board of Trustees of the 702, I.B.E.W., 1969, 30, period July Illinois and Local for the to June 1971, in respect broadcasting at engineers provision contains article VI, spent section shall with all “employees be credited traveling to and from assignments reporting after for work.” at broadcasting nearby facilities of the were located Illinois, Champaign-Urbana campus Champaign County, except for an ground supporting isolated island of a TV transmitter station some away County. miles in Piatt years, employed broadcasting engineer
For as a petitioner some was 1,1971, February senority Board of Trustees and on was second Champaign County campus meaning at the within the of section 36i of 24/2, (Ill. university system par. act Stat. ch. civil service Rev. 38b8). years his 18 of service Champaign He was a resident of campus studios and broadcasting regularly reported facilities to the history reprimand, performed assigned work without 1, 1971,by being reason of suspension discipline. On allowed, academic seniority, second in was second petitioner semester, shift. with p.m. a 6:30 a.m. to 2:30 Another to select campus for work seniority assigned lesser Petitioner, however, the Piatt assigned shift. studio for the same campus studio reported On he County transmitter site. perform and asked for to the station suspension “for failure 3-day resulted in a assigned request duties. That apparently considered assigned Traveling to Piatt do work.” work,” although University being “assigned of this terms notice same. proposed compensation no an unresolved already pending
At of this there was the time another on behalf of as a union official by petitioner executed from the per miles week traveling 300 whether employee to determine semester, transmitter, part full was a period for the of a compensated for which he should be the “work” of *9 the transportation, or whether paid, including reimbursement for an as a to University, by designating site station which simply work, provide employee the to employee require should could time, foregoing thereby his the transportation his own own avoid VI, 6. the at article section requirements of Union contract 4,1971, petitioner again At the of his expiration to offering in to be taken reported to the studio and addition to work, also, an assigned to his alternative the transmitter do offered to earned alleviating personal predicament, means of take vacation assigned there. whereby engineer temporarily another could be pending expressed expectation offer was made on the the It is of his by expiration would be resolved the time of the vacation. the site were engineers temporarily assigned conceded that was in fact transportation, entided and that such there interval by traveling furnished to those request from 1 through February Petitioner’s vacation served, immediately discharge being it rejected and notice of directly to by reporting asserted of not “one offense” occasions, Piatt County separate “just is cause” for Station on two discharge, statute. according pursuant to Board rules made
We held on a previous interpretations given have occasion that while an administrative its or to agency regulations applicable rules and own consideration, not, in the respectful they statutes are entitled are in manner in properly of of conclusive the courts supported review, any statute administrative and that erroneous construction v. Board regulation by binding. or is not agency adminstrative Heifner Education, (3d 1975). Dist. Ill. 3d 335 N.E.2d App. 24½, “After (Ill. The Act Rev. defines that par. 38bl4) Stat. ch. demoted, completion shall be employee probationary period, no * * section, removed In the same discharged except just cause found, demotion, is discharge it is recited removal “[i]f the service.” immediately separated shall be from Demotion, disjunctive “or” removal are discharge connected phrase refer alternatives. The separate to three distinct and therefore, service,” concept “separation from includes while but phrase synonymous with employment” “termination of is not necessarily implies expresses a A “demotion” meaning. broader a termination. and not capacity continuation of different service some 24/2, par. (ch. 36d(10) Under rule-makings powers of section is made “removal” 38b3(10)), the meaning separate alternative rules publish may plain by provision that the board make merit with execute the and removals” in accordance for “transfers provisions 24½, (ch. par. 38b1l). of section 361 is language There no 24½, 36d(10) (ch. section par. 38b3(10)) expressly purports give which the merit power board the “just discharge, to define cause” for if and such power is any construction implicit, determined to be it would be validly only exercised to the extent that its that subject rule on conforms “ judicial with interpretations of meaning statutory phrase of the cause.”
The courts have “just defined cause” for discharge in the context of the statute under consideration as constituting some shortcoming “substantial which renders employee’s] continuance in office or [an way some discipline detrimental to efficiency of the service and something which the law public opinion and sound recognize good as a longer cause his not occupying place.” (Emphasis added.) Tudor v. University Civil Service Merit 131Ill. 2d App. 267 N.E.2d (4th 1971). Dist. The majority concludes that petitioner’s position as broadcast transmitter site Piatt efficiency was critical to the *10 activities, broadcasting his directly and that failure to there separate on two occasions was detrimental the University and cause for believe, discharge. however, I that for the acts to be “substantial shortcomings” law, within the meaning of the must detriment also be substantial, it patent and that is a exaggeration imply to conclude or petitioner’s acts in reporting to the rather studio than to the transmitter site any constituted substantial respondent’s interference with broadcast ing occasions, activities. On all petitioner offered to execute his duties at transmitter; the sole detriment involved was limited to the issue of transportation time and costs period to the transmitter site for the limited until a pending grievance should be Considering resolved. provide did transportation petitioner’s such replacement, and that the time within which grievance expected to be resolved short, the detriment plainly to the and not trivial substantial.*
Moreover, state, do, as majority petitioner’s acts were discipline efficiency University’s detrimental to the of the service, broadcasting at most satisfied a falls only part legal of the test and short of meeting legal requirements discharge “just all the for a cause” meaning within the be complained the statute. The acts of must also conduct “which public opinion recognize good the law and sound as cause merely for his no It is longer occupying position.” not upon adverse effect the University that is relevant but the entire perspective by in which the acts performed. performed Acts
* pending grievance A determination of the was in March fact determined on misunderstanding simple or invitation provocation here, as perspective cause. The good cannot be circumstance unavoidable labor peaceable fide and admit, of a bona shows the existence parties all VI, the contract. section meaning of article dispute 1 and University on the occasions of The substitute, to furnish refused provided it such to although willingly pending grievance a period petitioner witness, posture its might jeopardize of its such act because the words notwithstanding In grievance. assigning petitioner, pending station, prosecuting at a time when he was Piatt seniority, to the University chose very subject, the pertaining to that pose would ought to have known which knew or create a circumstance I am position. the union’s parallel jeopardizing concern for petitioner public or sound the law wholly on this record either unpersuaded first, in petitioner, acts of opinion recognize separate would the two meaning agreement, raising a law as to the question bona fide second, time until the take vacation offering peaceably earned cause for question pending grievance, good in a “as should be resolved upon the remarks of terminating petitioner’s employment.” Expanding Tudor, public Smith in I that the law sound agree would Justice may opinion regulations accept “repeated disregard will of trivial hills change a “substantial mole to a mountain” and constitute agree I discharge.” do not shortcoming” provides “just which suspension” is the that “two instances of conduct listed as a cause for here is inquiry equivalent automatic of that substantial “mountain.” Board question of whether perfunctory confined to review of the in the context of the proof; required definitions are met we are grounds for entire record to examine also as to whether the asserted justice. my judgment In discharge satisfy requirements all the incidents manufactured complained inspired of were judgment I reverse the petitioner’s response was invited. would petitioner’s affirming discharge, and order Board’s order of *11 reinstatement.