State appellate court reverses Board's decision, finds district did not commit unfair labor practice by giving 12-month position to less senior employee  

An Illinois appellate court held the district did not commit an unfair labor practice by denying a 12-month position to its most senior secretary, since the evidence was insufficient to establish a "status quo" of assigning schedules based on seniority.  

In Thornton Fractional High School District No. 215 v. Illinois Educational Labor Relations Board, 2010 WL 3834467 (1st Dist. 2010), the union brought an unfair labor practice complaint against the district after it reduced its secretaries from 12 to 10.5 months and subsequently refused to assign a vacant 12-month position to Carmen Mureiko, its most senior secretary.

The union alleged the district discriminated against Mureiko in regard to the terms and conditions of employment and discouraged union membership, in violation of Sections 14(a)(3) and 14(a)(1) of the Illinois Educational Labor Relations Act. The union also alleged the district had a status quo of assigning 12-month schedules by seniority and that the district failed to bargain collectively and in good faith before refusing to assign the 12-month schedule to Mureiko, in violation of Section 14(a)(5) of the Act.

At the start of the 2005-2006 school year, most of the 12-month building secretaries were reduced to 10.5 months in an attempt to reduce a major budget deficit. Shortly thereafter, in spring 2006, Mureiko applied for a vacant 12-month position, but was not selected. She was not involved in union activities at that time.

Mureiko later became the union's vice president and grievance officer in February 2006. She also served on the union's negotiation team.

During one negotiations session in February 2007, Mureiko addressed the need to increase work hours for the clerical staff and cited examples of problems she believed stemmed from the hours reduction, to which the district's board president told Mureiko to be "careful what she wished for." The district's superintendent testified that he told Mureiko to be careful about the allegations she was making because they needed to have substantiation for those allegations.

In May 2007, Mureiko applied for another vacant position. The vacancy posting did not specify whether the position was 10.5 or 12 months. The district assigned the position to a less senior secretary, who was subsequently employed on a 12-month basis.

The union president, after learning the less senior employee would be assigned the 12-month position, voiced her objection during a bargaining session. However, the district's representatives did not offer an explanation other than stating they were not obligated to assign Mureiko to the position.

The Administrative Law Judge issued her recommended decision and order, finding that the district committed unfair labor practices by violating Sections 14(a)(1), (a)(3) and (a)(5) of the Act.

The Board affirmed the ALJ's decision. The Board found the evidence established a "status quo" of assigning 12-month schedules in the guidance department based on seniority and that the district violated section 14(a)(5) of the Act when it denied Mureiko the 12-month schedule.

The Board also held that the district violated sections 14(a)(3) and 14(a)(1) of the Act based on the timing circumstances and comments of the district's representatives – especially the comments made by the board president and superintendent -  and the district's failure to provide a reason for denying a 12-month schedule.

The appellate court reversed, finding the district did not commit an unfair labor practice charge.

In making it's finding, the court noted that an employer's unilateral alteration of the prevailing terms and conditions of employment under negotiation during the course of bargaining constitutes an unlawful refusal to bargain, in violation of Section 14(a)(5) of the Act. Citing Vienna School District No. 55 v. IELRB, 162 Ill.App.3d 503 (4th Dist. 1987). However, a term of condition must be an established practice to constitute a status quo. Id.

The court found that the evidence was insufficient to support a status quo finding. Only two secretaries were appointed to 12-month positions based on seniority. Furthermore, the union made no proposal to bargain over the issue of Mureiko receiving the 12-month position even though it was notified of the schedule reductions. Therefore, the district did not refuse to bargain in good faith.

The court also held the district did not violate Sections 14(a)(3) and (a)(1) of the Act, finding the evidence was insufficient to show that antiunion animus was a substantial or motivating factor in the district's decision to deny Mureiko the 12-month position. Referring to statements made by the district's board president and superintendent, the court noted that the Board had "chosen to invest certain remarks with motives of antiunion animus when it was just as likely that the remarks were motivated by the reasons (and only the reasons) given on the record."