STATE OF ILLINOIS LABOR RELATIONS BOARD STATE PANEL ) ) ) ) ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER

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1 STATE OF ILLINOIS LABOR RELATIONS BOARD STATE PANEL Metropolitan Alliance of Police, Agency Police, Chapter #6, Charging Party, and Village of Romeoville Respondent (Police Department, Case No. S-CA ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER On November 2, , the Metropolitan Alliance of Police, Agency Police, Chapter #6 (Charging Party or MAP or Union filed an unfair labor practice charge against the Village of Romeoville (Village or Employer or Respondent, alleging that the Employer committed unfair labor practices within the meaning of Section 1O(a(1 of the Illinois Public Labor Relations Act '-- ---' (Act, 5 ILCS 315 (2009, as amended. Following an investigation, the Illinois Labor Relations Board's (Board Executive Director issued a Complaint for Hearing. The parties appeared for a hearing on December 7, During the hearing, both parties were represented by counsel. Both parties had the opportunity to call, examine, and cross-examine witnesses, introduce documentary evidence, and present arguments. Both parties filed post-hearing briefs. After full consideration of the parties' stipulations, evidence, arguments and briefs, and upon the entire record of the case, I recommend the following. 1 All dates are presumed to have occurred within 2006, unless otherwise indicated. 2 Administrative Law Judge Philip M. Kazanjian conducted the hearing. Subsequently, the Board's Executive r>. Director administratively transferred this matter to the undersigned to render a decision.

2 I. PRELIMINARY FINDINGS The parties stipulate and I find as follows: 1. Respondent is a public employer within the meaning of Section 3(0 of the Act. 2. Respondent is subject to the jurisdiction of the Board's State Panel pursuant to Section 5(a and 20(b of the Act. 3. Charging Party is a labor organization within the meaning of Section 3(i of the Act and the exclusive representative of a bargaining unit composed of Respondent's sworn police officers in the rank of sergeant and below (unit. 4. At all times material herein, Charging Party and Respondent have been parties to a collective bargaining agreement (agreement for the unit which contains a grievance procedure culminating in final and binding arbitration. 5. At all times material herein, Daniel Zakula, Christopher Burne, and Michael Ramaglia have been public employees within the meaning of Section 3(n of the Act and members of the unit. 6. At all times material herein, Marian Gibson, Steve Gulden, Andrew J. Barto, and Mark Turvey have been agents of Respondent authorized to act on its behalf. II. ISSUES AND CONTENTIONS The issue in this matter is whether the Employer violated Section lo(a(l of the Act by making threats of reprisal to unit members if they engaged in protected activity and by more stringently enforcing workplace rules in response to unit members engaging in protected.. 3 activity. 3 The Complaint does not allege that the Employer violated Section 10(a(l by issuing a memo on October 4, 2006, that amounted to stricter enforcement of workplace rules in response to the Union filing a grievance. Section ll(a of the Act allows me to amend the Complaint. Additionally, Section of the Board's Rules and Regulations, 80 Ill. Admin. Code , allows me to amend a complaint to conform to the evidence 2

3 '. The Union argues that the Employer violated Section 10(a(1 of the Act when it threatened to take away officers' rechargeable flashlights if the Union pursued a grievance and took them away after they pursued the grievance. The Employer argues that the Union failed to meet its burden to establish a violation of Section 1O(a(1 of the Act. The Employer asserts that the evidence offered at the hearing does not demonstrate that the Employer took adverse action, nor does it establish anti-union animus. For these reasons, contends the Employer, the Complaint should be dismissed. III. FINDINGS OF FACT During the hearing on this matter, three witnesses testified on behalf to the Union: Village Patrol Officer and Union board member Ramaglia, Village Police Sergeant Burne, and Village Police Sergeant and Union Vice-President John Ferdinardo. Three witnesses testified on behalf of the Employer: Village Manager Gulden, Village Police Lieutenant Turvey, and Village Police Chief Barto. On August 22, the Union filed a grievance at step one of the grievance procedure alleging that the Employer violated the agreement when it refused to reimburse Officer Zakula $50 for damage to his own personal earpiece during the course of his duties as a police officer (Zakula grievance. On September 5, Turvey denied the grievance. Ramaglia approached Turvey the following day to try to informally resolve the grievance. A few minutes after the gentlemen began to discuss the Zakula grievance, Chief Barto joined the conversation. Ramaglia testified that Chief Barto said that if the Union continued to push the grievance with the earpiece that the Streamlight flashlights were going to be taken off the officers' duty belts. The Department's General Orders provide that the Mini Maglite flashlight is the approved flashlight that officers presented during a hearing. I hereby amend, on my own motion, the Complaint to contain such an allegation so that the Complaint will conform to the evidence presented during the hearing. 3

4 should wear on their duty belt. However, at that time most officers carried the Streamlight flashlight on their duty belt. Chief Barto testified that he said that if the grievance went across the street to the Village Manager, he was going to be put in a position where he was going remove the flashlight and come into compliance. Chief Barto testified that during that conversation, he stated once it got across the street he would be forced to do it, but told Ramaglia to file any grievance he wanted and take any steps he wanted. he did not threaten to take flashlights away from the officers. Chief Barto further testified that Turvey testified that Chief Barto said that if the grievance continued through the steps, at some point he was going to be placed in the position where he was going to have to require the Department and all the officers to come into compliance with the General Order on uniform specifications regarding the duty belt. On September 6, the Union advanced the Zakula grievance to step two of the grievance procedure. That same day, Chief Barto denied the grievance at step two. The Union advanced the grievance to step three, a hearing before the Village Manager. The hearing occurred on or before October 4. At that time, Gibson was the Village Manager and Gulden was transitioning into the Village Manager position. Gulden sat in on the grievance hearing and handled the grievance at step three for the Village. After the step three hearing, Gulden suggested to Chief Barto that he follow the policy that employees use standard-issue equipment in order to avoid these types of grievances. Gulden testified that they may have specifically talked about flashlights. Gulden explained that he directed Chief Barto to follow the Village's General Orders and polices to avoid these types of grievances, rather than to retaliate against the Union for filing the Zakula grievance. On October 4, the Employer denied the Zakula grievance at step three. 4

5 After the Employer denied the Zakula grievance at step three, Ramaglia met with Turvey in Turvey's office. Ramaglia testified that Turvey asked that they not push the issue of the earpiece because Chief Barto was going to take the flashlights away. Ramaglia responded that the Union would go as far as they could go with the issue. Turvey testified that he did not believe he stated that the Union should back off the Zakula grievance or else Chief Barto would take away the Streamlights. Yet Turvey admitted that he said that he felt the Union was wrong for pressing the grievance, and that if they continued through the steps that at some point Chief Barto was going to be placed in a position were he was going to have to enforce the General Order regarding uniform specification. Turvey testified that he told Ramaglia that this meant that officers would have to come into compliance duty belt and removing their personal rechargeable as far as returning the Mini Maglite to their flashlight. On October 4, Chief Barto issued a memo instructing all personnel to come into compliance with the current Department policy regarding equipment, noting that sergeants would conduct frequent inspections to ensure officers were in proper uniform and wearing the uniform properly, and stating that appropriate corrective action would be taken when violations were observed. During the hearing, Chief Barto indicated that the memo caused officers to have to take their rechargeable flashlights off their duty belts and return their Mini Maglites to their duty belts. On or about October 5, Burne told Turvey that he was not clear on the intention of Chief Barto's October 4 memo. Turvey indicated that the memo affected the earpieces and the flashlights. Chief Barto issued a memo dated November 6 that allowed officers to replace the Mini Maglite on their duty belts with an officer-purchased flashlight. Chief Barto stated in the second memo that the Department was in the process of reviewing several models of rechargeable flashlights to replace the Mini Maglite as the Department issued flashlight and that 5

6 the Department would not be liable for the cost of repairing or replacing any officer-purchased duty belt flashlight that was lost, damaged, or destroyed. As of the date of the hearing, the Department had not decided upon a flashlight to replace the Mini Maglite as the Department issued flashlight. IV. DISCUSSION AND ANALYSIS The issue in this case is whether the Employer violated Section 1O(a(1 of the Act by making threats of reprisal to unit members if they engaged in protected activity and by more stringently enforcing workplace rules in response to unit members engaging in protected.. 4 activity. As a general rule,a public employer violates Section 10(a(1 of the Act if it engages in conduct that reasonably tends to interfere with, restrain or coerce employees in the exercise of rights protected by the Act. County of Woodford, 14 PERI ~20 17 (IL SLRB 1998; Village of Elk Grove Village, 10 PERI ~2001 (IL SLRB 1993; Clerk of Circuit Court of Cook County, 7 PERI ~2019 (IL SLRB 1991; State of Illinois, Department of Central Management Services (Department of Conservation, 2 PERI ~2032 (IL SLRB The applicable test in determining whether a violation has occurred is whether the employer's conduct, when viewed objectively from the standpoint of an employee, had a reasonable tendency to interfere with, restrain or coerce employees in the exercise of the rights guaranteed by the Act. County of Woodford, 14 PERI ~2017. There is no requirement of proof that the employees were actually coerced or that the employer intended to coerce the employees. Village of Calumet Park, 23 PERI ~108 (IL SLRB Employer statements to employees that contain threats of reprisal have been found to violate Section lo(a(1. Village of Calumet Park, 22 PERI ~23 (IL SLRB 4 Section lo(a(l of the Act prohibits public employers and their agents from interfering with, restraining or coercing public employees in the exercise of their rights under the Act. 6

7 2005; City of Highland Park, 18 PERI ~20 12 (IL SLRB 2002; City of Chicago (Mulligan, 11 PERI ~3008 (IL LLRB 1995; City of Chicago (Chicago Police Department, 3 PERI ~3028 (IL LLRB A threat need not be direct: indirect or implied threats have been found unlawful. Calumet Park, 22 PERI ~23; NLRB v. Gissel Packing Co., 395 U.S. 575 (1969. Additionally, the National Labor Relations Board (NLRB has found that employers violate Section 8(a(1 of the National Labor Relations Act (NLRA, 29 U.S.C. 151 et seq., by threatening or enacting stricter workplace rules in response to protected activities and by more stringently enforcing workplace rules in response to protected activity. 5 Schrock Cabinet Co., 339 NLRB 182 (2003; Performance Friction Corp., 319 NLRB 859 (1995, rev'd in part on other grounds, 117 F.3d 763 (4th Cir. 1997; Dilling Mechanical Contractors, 318 NLRB 1140 (1995, enforced, 107 F. 3d 521 (7th Cir. 1997; Fieldcrest Cannon, 318 NLRB 470 (1995, enforced, 97 F.3d 65 (4th Cir. 1996; Schaumburg Hyundai, 318 NLRB 449 (1995; Ramada Inn, 268 NLRB 287 (1983. There is no question but that the Union engaged in protected activity by filing a grievance. It is well settled that the filing of grievances is protected concerted activity. State of Illinois (Department of Human Services, 20 PERI ~73 (IL SLRB 2004; Village of Franklin Park, 16 PERI ~2015 (IL SLRB 2000; NLRB v. City Disposal Systems Inc., 465 U.S. 822 (1984. The evidence demonstrates that the Employer threatened the employees about that activity. Although Chief Barto denied threatening to take flashlights away from the officers, he admitted that he told Ramaglia that if the grievance went across the street he would be put in a position that he was going to remove the flashlight. Thus, if the Union advanced the grievance, a benefit would be removed as a consequence. Chief Barto's statement amounted to a threat 5 Section 8(a(l of the NLRA is analogous to Section 10(a(I of the Act. While not binding on this Board, decisions of the NLRB and federal courts interpreting similar statutory provisions are persuasive authority. County of Menard v. Illinois State Labor Relations Board, 177 Ill. App. 3d 139, 531 N.E.2d 1080 (

8 because a reasonable inference can be drawn from it that if the Union pursued its grievance, a benefit would be removed. I find that such a statement constituted a threat within the meaning of Section lo(a(l of the Act. In the same way, Turvey's statement to Ramaglia following the step three hearing constituted a threat in violation of Section 1O(a(1 of the Act. While Turvey testified that he did not believe he told Ramaglia that the Union should back off of Zakula's grievance or Chief Barto would take away the Streamlights, Turvey admitted he said that if the Union continued through the steps of the grievance that Chief Barto was going to have to enforce the General Order regarding uniform specification and explained to Ramaglia that this meant that officers will have to come into compliance as far as returning the Mini Maglite to their duty belt and removing their personal rechargeable flashlight. Again, a reasonable inference can be drawn from Turvey's remarks that ifthe Union pursued its grievance, a benefit would be removed. It is irrelevant that Chief Barto and Turvey's statements did not prevent the Union from pursuing the grievance because, as stated above, there is no requirement of proof that the employees were actually coerced. It was reasonable for Ramaglia to believe that the Employer would remove the Streamlight flashlights if the Union continued to push the grievance. I conclude that a reasonable employee in Ramaglia's position, and in the position of the other members of the bargaining unit, would feel coerced by the Employer's action. Finally, I must consider whether the Employer violated Section 10(a(1 by issuing the first memo, instructing employees to comply with the Department policy regarding equipment in order to avoid corrective action. In effect, the memo no longer allowed officers to wear rechargeable flashlights on their duty belts. As discussed above, the NLRB has found that employers violate Section 8(a(1 of the NLRA by more stringently enforcing workplace rules in 8

9 .- response to protected activity. See cases cited supra. Similarly, I find that the Employer violated Section 10(a(1 of the Act by more stringently enforcing workplace rules in response to the Zakula grievance. The Employer's subsequent repudiation of its threat does not require a contrary result. The Employer's more stringent enforcement of its policy regarding department-issued equipment lasted a little over a month, until Chief Barto issued the second memo on November 6, allowing officers to replace the Mini Maglite on their duty belt with an officer-purchased flashlight. In order for an employer to avoid liability for unlawful conduct by repudiating that conduct, the repudiation must be timely, unambiguous, specific in nature to the unlawful conduct, and free from other proscribed conduct. State of Illinois, Department of Central Management Services (Corrections, 25 PERI ~12 (IL SLRB 2009; United States Service Industries, 324 NLRB 834, (1997; Passavant Memorial Area Hospital, 237 NLRB 138 (1978. In addition, there must be adequate publication of the repudiation to the employees involved, and the employer must not have engaged in any proscribed conduct after the publication. Corrections, supra; United States Service Industries, supra; Passavant, supra. Finally, the repudiation must assure employees that the employer will not interfere with the exercise of their rights under the Act. Corrections, supra; United States Service Industries, supra; Passavant, supra. In this case, even assuming, arguendo, that the second memo met the rest of the requirements for a repudiation discussed above, the Employer falls notably short with regard to the requirement that the repudiation must assure employees that the Employer would not interfere with the exercise of their rights under the Act. The second memo made no mention whatsoever of the Act or the effected employees' rights under the Act. Consequently, despite the effect of the second memo, 9

10 I still find that the Employer violated Section 1O(a(I of the Act by more stringently enforcing workplace rules in response to the Zakula grievance." V. CONCLUSIONS OF LAW The Village of Romeoville violated Section 1O(a(1 of the Act: 1 by Chief Barto's statement to Ramaglia that if the Zakula grievance advanced, the Employer would remove the flashlights; 2 by Turvey's statement to Ramaglia that if the Union continued through the steps of the Zakula grievance, the Employer would make officers remove their personal rechargeable flashlights from their duty belts; and 3 by issuing a memo on October 4 instructing employees that corrective action would take place if officers were not in proper uniform. VI. RECOMMENDED ORDER The Respondent, the Village of Romeoville, its officers and agents shall: 1. Cease and desist from: (a Threatening their employees, or otherwise interfering with their employees' rights to file grievances over their terms and conditions of employment. (b More stringently enforcing its policies, general orders, or other work rules because employees have exercised their rights under the Act. (c In any like or related manner interfering with, restraining or coercmg their employees in the exercise of the rights guaranteed them in the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a Post, for 60 consecutive days, at all places where notices to employees are normally posted,signed copies of the attached notice. The Respondent shall take 6 When an employer commits an unfair labor practice and subsequently corrects itself, while the employer's ensuing actions do not eliminate the violation, they may affect the remedy. County of Cook, 14 PERl ~3004 (IL LLRB AU 1997; Princeville Community Unit School District No. 326, 13 PERl ~115 (IELRB Opinion and Order, August 22, Accordingly, I have considered the effect of the Employer's second memo in determining the remedy in the instant matter. 10

11 reasonable efforts to ensure that the notices are not altered, defaced or covered by any other material. (b Notify the Board in writing, within 20 days of the date of this decision of the steps Respondent has taken to comply herewith. VII. EXCEPTIONS Pursuant to Section of the Board's Rules and Regulations (Rules, 80 Ill. Admin. Code , the parties may file exceptions to this recommendation and briefs in support of those exceptions no later than 30 days after service of this recommendation. Parties may file responses to any exceptions, and briefs in support of those responses, within 15 days of service of the exceptions. In such responses, parties that have not previously filed exceptions may include cross-exceptions to any portion of the recommendation. Within 7 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, if at all, with the Board's General Counsel, Jerald Post, 160 North LaSalle Street, Suite S-400, Chicago, Illinois Exceptions, responses, cross-exceptions, and cross-responses will not be accepted in the Board's Springfield office. Exceptions and/or cross-exceptions sent to the Board must contain a statement listing the other parties to the case and verifying that the exceptions and/or crossexceptions have been provided to them. 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 zs" day of January

12 STATE OF ILLINOIS ILLINOIS LABOR RELATIONS BOARD Metropolitan Alliance of Police, Agency Police, Chapter #6, Charging Party And Case No. S-CA Village of Romeoville (Police Department, Respondent DATE OF MAILING: January 28, 2010 ADMISTRA TIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER I, the undersigned employee of the Illinois Labor Relations Board, certify that on the date indicated above I served the above-entitled document(s by post-paid certified service upon the following person, addressed to them at the following addresses: Mr. Ronald Cicinelli Law Offices of Ronald Cicinelli The Apollo Building 100 South York Road Suite 200 Elmhurst, Illinois Mr. Keith Carlson Richard J. Reimer & Associates 15 Spinning Wheel Road Suite 310 Hinsdale, Illinois Mr. Christopher Ward McKeown, Fitzgerald, Zollner, Buck, Hutchinson & Rottle McKeown Law Building 2455 Glenwood Avenue Joliet, Illinois Melissa L. McDenTIott, Illinois Labor Relations Board

13 NOTICE TO EMPLOYEE FROM THE ILLINOIS LABOR RELATIONS BOARD After a hearing in which all parties had the opportunity to present their evidence, the Illinois Labor Relations Board has found that the Village of Romeoville has violated the Illinois Public Labor Relations Act and has ordered us to post this notice. We hereby notify you that: The Illinois Public Labor Relations Act (Act gives you, as an employee, these rights: To engage in self-organization To form, join or assist unions To bargain collectively through a representative of your own choosing To act together with other employees to bargain collectively or for other mutual aid or protection To refrain from these activities Accordingly, we assure you that: WE WILL NO]' threaten our employees, or otherwise interfere with our employees' rights to file grievances over their terms and conditions of employment. WE WILL NOT more stringently enforce our policies, general orders, or other work rules because employees have exercised their rights under the Act. WE WILL NOT in any like or related manner, interfere with, restrain or coerce our employees in the exercise of their rights under the Act. This notice shall remain posted for 60 consecutive employees are regularly posted. days at all places where notices to Date of Posting Village of Romeoville (Employer Representative (Title ILLINOIS LABOR RELATIONS BOARD One Natural Resources Way, First Floor Springfield, Illinois ( m North LaSalle Street, Suite Chicago, illinois D3103 ( THIS IS AN OFFICIAL GOVERNMENT NOTICE AND MUST NOT BE DEFACEDm