Illinois Village of South Holland: Discriminatory Practices 1st letter

December 2, 2005

Mr. Don DeGraff, Mayor of South Holland
16226 Wausau Ave.
South Holland, Illinois 60473

Re: South Holland’s Harassment, Retaliation, and Discrimination: Here we go again

Mr. DeGraff:

Do you know what your departments are doing? Does the Village of South Holland believe they can keep on harassing, intimidating, and discriminating against my family and me? I will seek legal counsel to sue the Village of South Holland. The Village of South Holland is not demanding every citizen living in South Holland to be subject to this type of madness. This is intentional discrimination, harassment, and intimidation.

On December 2, 2005, I received “a bright red letter” stating, “Water Shut-off Notice” from the Village of South Holland. It reports I have a past due balance of $36.73, and a current balance of $33.68. The notice states, in part, “If the Total Now Due is not paid in full by the 20th of the month, your water service will be automatically suspended within 48 hours without further notice.” Sir, the current balance of $33.68 is not due until December 20, 2005, yet your letter infers we owe this balance now. How can the Village of South Holland make a statement as “Total Now Due” when it is not due until December 20, 2005? The Village of South Holland is bogus.

The Village of South Holland reports my past due balance of $36.73 is from October 21, 2005 to November 20, 2005. The Village of South Holland reports my current balance is $33.68. This $33.68 must cover the period of November 21, 2005 to December 20, 2005. The Village of South Holland has determined my family deserves a “Water Shut-off Notice” because of the above. I am sure everyone living in South Holland with similar water bills has not received a “Water Shut-off Notice.” This “Water Shut-off Notice” is not signed. I guess the same coward who sent the bogus, harassing, and intimidating letter about my car sent this letter. This coward has the same statement, as before, that is “Our records indicate….”

The Village of South Holland has targeted my family for harassment, intimidation, and discrimination. My regular bill issued on November 1, 2005 reports a balance of $53.83 and $36.73 due on November 20, 2005. We sent a check to the Village of South Holland on October 25, 2005 in the amount of $53.83. This left a balance of $36.73. This balance is 12 days late as of the date of this letter. I have not received a “regular” statement of the current amount owed of $33.68, as stated in the “Water Shut-off Notice.” Instead of receiving a “regular” statement with the past due balance and the current balance due, the Village of South Holland decided to punish, discriminate, harass, and intimidate me for publishing and posting my complaints against on my website.

It is real clear what the Village of South Holland has done. They believe if they continue to harass, intimidate, threaten, and discriminate against me I will move. I am not going anywhere.

We will pay $36.73 as we had planned on or about December 3, 2005. We will have a balance of $33.68. We refuse to be harassed, intimidated, and discriminated against by the Village of South Holland. The Village of South Holland’s “Water Shut-off Notice” states, in part, “If a shut-off occurs, to get your water service turned back on you must pay the Total Amount Due shown above, plus the $75 Turn-On Fee.” The Village of South Holland should get ready to shut my water off for the amount due of $33.68 on December 20, 2005.

I have been writing my Illinois State Representatives for months, Mr. James Meeks and Mr. David Miller for years about the issues I face daily with the Village of South Holland. It appears none of my Illinois State Representatives has responded to the Village of South Holland or me. If a constituent cannot get assistance from their State Representatives then someone else needs to have their seat. I am not an isolated incident with the Village of South Holland or of my Illinois State Representatives non-actions. Even Mr. Jesse White, the Illinois Secretary of State (read my letter of November 15, 2005 about the Village of South Holland posted on my website), has not responded to my previous letter faxed to his office, which impacts his office directly.

I will continue to publish and post my complaints against the Village of South Holland alerting my Illinois State Representatives. I will continue to inform the general public of the non-actions of my Illinois State Representatives. Voters need to know how they can be ignored because they attempt to fight for their Constitutional rights and Human Right to be left alone.

This would not be happening if my Illinois State Representatives acted. Their non-actions fuel the fires of ignorance. People, Mississippi is burning.


Respectfully submitted,


Fred L Nance Jr., ABD, MA, CADC, NCRS

cc:

Fax copies sent to the following:

Mr. Don DeGraff, Mayor of South Holland (hard copy mailed)
United States Senator Barack Obama
Illinois State Senator James Meeks
Illinois State Representative David Miller
Illinois Governor Rod Blagojevich
Illinois Secretary of State
http://clickforjusticeandequaltiy.blogspot.com/

P.S.

The Village of South Holland is so petty. This is all they can find on me. There is nothing to find.

This is a breakdown of my “Water” bill. The Village of South Holland bills its residents after usage. The bill will always be for the previous month.

For September 21, 2005 to October 20, 2005: Billing date November 1, 2005

Sewer Flat $ 0.38
Refuse Pickup 15.00
Sewer 3.29
Water 10.06

Total $36.73

For October 21, 2005 to November 20, 2000: Billing date December 1, 2005

· Sewer Flat $ 0.38
· Refuse Pickup 15.00
· Sewer 2.82
· Water 15.48

Total $33.68

The Village of South Holland is outrageous. Future vendors and business people beware. The World should know how they operate.

Justice Center: The Council of State Governments

August 5, 2008

CSG Justice Center Releases Innovative Web-Based Tool to Help State and Local Officials Improve Prisoner/Inmate Reentry.

The Council of State Governments Justice Center unveiled today a first-of-its-kind interactive online tool for state and local government professionals working to make prison and jail reentry safer and more successful. The tool was developed with support from the Bureau of Justice Assistance, U.S. Department of Justice, to familiarize state and local government officials with different assessment instruments used in corrections systems across the nation to gauge the risks and needs of someone admitted to prison or jail.

"The only way we can stop the cycle of recidivism is to start planning for an individual's return to the community from the very first step he or she takes into a prison or jail," said Justin Jones, Director of the Oklahoma Department of Corrections. "Prison and jail officials need the latest thinking on assessment tool options to inform prison and jail programming, as well as decisions about release and community supervision."

According to the Justice Center, such information is typically collected through a series of screenings, assessments, and evaluations conducted before sentencing and immediately after admittance to a correctional institution. This information should be updated periodically throughout the person's incarceration and during any community supervision. The information also should be used to make decisions about how to manage risk, deliver treatment and other services, and allocate resources.

"One reason this tool is so valuable is because it allows staff to search for key information at particular decision points (such as admission to a facility) or to search by topic areas (such as risk and security classifications, mental health, substance abuse, education, employment, housing, family relationships, and financial status)," said AT Wall, Director of the Rhode Island Department of Corrections. "Each of these categories includes descriptions of information to gather, examples of validated assessment instruments, resources and recommendations about prioritization, and suggestions for who should be charged with collecting each kind of data."

The online resource is part of a larger toolkit the Justice Center plans to release in fall 2008 that will include a policy guide and three case studies of the collective experiences of jurisdictions that applied the guide's recommendations to improve their assessment processes. The availability of the complete toolkit will be announced this fall in an upcoming issue of the Reentry Policy Council's newsletter.

Black in America: Illinois Department of Employment Security - The Mentor ABI Group, Center for Comprehensive Services

Update: July 24, 2008

This is what it is like being "Black in America."

America believes Blacks are not supposed to be intelligent. Blacks are not supposed to defend themselves from the onslaught of institutional racism and prejudice. Blacks are supposed to lie down and be walked on. Black truth does not matter, when the "establishment" uses their "unsupported" legal jargon, picking and choosing what language and testimony they want to use, which allows them to justify their indifferent decisions. The claimant is punished for being "Black in America."

On July 24, 2008 I received a copy of the State of Illinois, Department of Employment Security's decision in this matter. A decision made by J. Hunt Bonan, Stanley L. Drassler Jr., William J. Nolan, Constantine M. Zografopoulos, and Elwood Flowers Sr. denies the claimant her right to unemployment compensation. This "partial" panel determined that the claimant was not sick because she did not say she was sick but rather stated she was tired. This "partial" panel also states "...Accordingly, after a review of the record, including the testimony and the evidence presented before the Referee and the records of the Department of Employment Security, and due deliberation having been had thereon, we find that the Referee's decision is supported by the record and the law." This "partial" panel does not cite any case law in its decision, yet they report "...and the law". What law? There's no citation of law.

There was no consideration or mention of the "record" submitted by the claimant. This "partial" panel did make one reference of the claimant's submitted "record" in the beginning of their decision. This "partial" panel states "...We note that on page 24 of the "transcription of shorthand notes" is the notation, "Tape stopped. Did not get the answer." What does this have to do with this matter? If they make this note, why not note the other statements? This statement gives creditability to the transcription of the claimant.

The reason, "Black in America." Blacks will continue to be treated like this if no one objects. Blacks must stand up and fight institutional racism and prejudice. This "partial" panel may attempt to inform us that some of the individuals named here are black. How "black" are they? Are they prepared to lay their careers on the line for being "Black in America." I do not think so. Just because their color is black does not mean they are black.

You, the reader, can write about your "institutional" racism, prejudice and indifferent treatment. Start a "blog." It is easy. It is free. Write about your experiences with institutional racism, prejudice and indifferent treatment. There is power in numbers. Be real. Be "Black in America."

The claimant's statement below was not even considered in this matter. The final statement, in small print, of this "partial" panel's decision states "If you are aggrieved by this decision and want to appeal, you must file a complaint for administrative review and have summons issued in circuit court within 35 days from the above mailing date. You may only file your complaint in the circuit court of the county in which you reside or in which your principal place of business is located...."

Now the State of Illinois, Department of Employment Security wants a person who is seeking unemployment compensation to spend money to litigate in a court of law. Not only is this an outrage, it is a disgrace. If one did litigate, what would they litigate? There was no case law cited by this "partial" panel. This means when one litigates their case, they have no idea what case law they are litigating against.

For example, this "partial" panel speaks about hearsay evidence. They report "...The claimant's representative objects to some heresay testimony offered by the employer at the hearing. Hearsay is defined as a statement, including a document, made outside the hearing, offered to prove the truth of the matter asserted. If objected to, heresay may not be considered by the Referee or the Board of Review unless it falls within a recognized exception to the rule excluding heresay evidence. The fundamental basis for excluding heresay evidence is the lack of an opportunity to test the creditability of the statement through cross-examination. If no objection is made to the statement as being heresay, the statement will be admitted into evidence, however, it will only be given its natural probative value and the fact that it is a heresay statement may effect the weight that may be given to the statement. The claimant's representative made no objection." This is a bold face lie. As can be seen in the body of appeal below, the claimant's representative continually objected to the heresay evidence presented in this matter. Notwithstanding, there is no case law to support this "partial" panel. This is what happens when you are "Black in America."

I will write more on this subject and post their decision on the Internet.

STATE OF ILLINOIS
DEPARTMENT OF EMPLOYMENT SECURITY
APPEALS DIVISION
BOARD OF REVIEW
33 SOUTH STATE STREET, 9TH FLOOR
CHICAGO, ILLINOIS 60603

APPEAL OF DECISION

I, Randi, was an employee of The Mentor ABI Group, Center for Comprehensive Services. I was terminated from my employment on or about March 18, 2008. The employee warning notice, dated March 20, 2008, which determined my termination states in part “…Termination…attendance…staff did not work the second shift of her double that she agreed to work.”

Randi filed a timely unemployment insurance claim. According to the Illinois Department of Employment Security (IDES), “…The claimant was discharged from Center for Comprehensive Svcs because of an unauthorized absence of a scheduled work shift. The claimant had received prior warnings concerning her attendance.”

Randi filed a timely appeal. On May 23, 2008, a telephone hearing was conducted. The following individuals participated in this telephone hearing: Randi (employee), Michael Fowler (employer representative), Bradley Guthrie (employer representative), Ms. Himmel (employer representative) and David Ott (Illinois Department of Employment Security Hearing Referee and Administrative Law Judge). On or about May 28, 2008, Mr. David Ott issued a decision affirming the determination of the local office.

On June 15, 2008, Randi files a timely “Right of Further Appeal” on the decision of David W. Ott.

Randi employs and enjoins C.L.I.C.K. Services, NFP, specifically, Fred L Nance Jr. to advocate and write her appeal/opinion in this matter. This advocacy is part of this case and the appropriate paperwork is on file with the Illinois Department of Employment Security (IDES). I, Randi, also give C.L.I.C.K. Services, NFP, specifically, Fred L Nance Jr. permission to post this appeal/opinion on his website at http://clickforjusticeandequality2.blogspot.com/.

Individuals mentioned in this writing are: Randi is a black female. Mr. David Ott is a white male. Mr. Michael Fowler is a white male. Mr. Bradley Guthrie is a white male. Ms. Himmel is a white female. Rodrick is a black male.

Finding of Fact by IDES

Mr. Ott reports, in part: “The claimant was a life skills therapist from May 16, 2005 to March 18, 2008, her last day of work…The claimant had a history of attendance problems about which the employer warned her…On the final occasion that resulted in her discharge she was scheduled to work a double shift. She first had to drive a resident to a doctor’s appointment in Kentucky. When she returned she had to work at a residential facility 3:00 pm – 10:00 pm. When she did not report for work at the facility her supervisor called her cell phone, reaching her at another employer residential facility. She was cooking dinner for the residents. She said she did not report for work at her scheduled facility because she was tired from having to drive the resident to his doctor’s appointment. The supervisor told her the facility was understaffed so she had to report to the facility right away. When she asked what would happen if she did not report for work he said she would be disciplined. He again told her to report for work. Again she refused. He told her to leave the facility where she was, which she did…Insubordination is the refusal by an employee to comply with a reasonable directive of the employer. The claimant’s actions constituted insubordination. The supervisor’s request that she report for work was reasonable because the residential facility was understaffed. The claimant’s explanation that she was not going to work because she was tired was not a reasonable excuse for failing to follow her supervisor’s directive. She could not have been all that tired because she was helping out at another residential facility by cooking dinner…Another consideration here is that every employee must report to work unless she has permission to be off or if her absence was due to circumstances beyond her control…Therefore, her discharge was for misconduct within the meaning of Section 602A. She is not eligible for unemployment benefits because of the disqualification provision in Section 602A.”

The Testimony

Hearing Officer:

What happened after March 18 was she suspended without pay, what happened? (L. 77-78)

Ms. Kimmel:

When we conduct an investigation, we may pull someone off shift until we complete documentation. (L. 81-82)

Hearing Officer:

Go head Ms. Kimmel, you take them off the schedule during your investigation and then are they, are they, they are not being paid during that time. (L. 89-90)

Ms. Kimmel:

No, if someone is not working they are not paid, unless the investigation is unfounded. (L. 91-92)

Randi was never told she was under investigation before she was terminated. Randi should have been on schedule and being paid.

Ms. Kimmel:

On March 18th Randi was scheduled to work at a Woodlake Residence from the 3:00pm to 10:00pm which is indicated on the Woodlake schedule, Randi had pickup what is known as a Transport that morning to take one of our participants to a doctor’s appointment. Randi was still scheduled to work that evening at Woodlake, and she did not work that second shift. (L. 96-100)

Hearing Officer:

Why didn’t she work, I mean she didn’t show up or she said that she wasn’t going to work? (L. 101-102)

Ms. Kimmel:

Yes, she said that she was too tired to work, Mr. Brad Guthrie, the shift supervisor, contacted her and spoke with her at 7:00pm, on March 18th, and reminded her that she was still on the shift and that they needed her at Woodlake, that there were only two staff members working and that her presence was needed. Randi asked what would happen if she didn’t show up. He stated that it would most likely result in a write up, or some type of disciplinary action. Randi chose to not complete her shift. (L. 103-109)

Mr. Nance:

I just want to note that she said that Randi told her that she was too tired to work and that constitutes sick, and I want that on the record. (L. 112-113)

Ms. Kimmel was not present during the conversation between Mr. Guthrie and Randi. Ms. Kimmel’s testimony here is heresay.

Hearing Officer:

Mr. Nance let me explain something here, you are allowed to ask questions and make objections however, you can not testify because you are not under oath, if you want me to put you under oath, I will be glad to do so. (L. 114-116)

Mr. Nance:

Then put me under oath. (L. 117)

Hearing Officer:

OK, Mr. Nance do you solemnly swear or affirm that any testimony that you may give in this case will be the truth, the whole truth, and nothing but the truth? (L. 118-120)

Mr. Nance:

I do affirm I need to be under oath because I intend to site case law for Illinois. (L. 121)

Mr. Ott should have sworn me in when he swore in the other participants in this
matter.

Hearing Officer:

Now has she ever had any previous problems, meaning refusing to work her scheduled shift? (L. 126-127)

Ms. Kimmel:

Yes sir, she had multiple warnings regarding her attendance since September 12, 2005. (L. 128-128)

Randi has not refused to work. Ms. Kimmel did not answer the question.

Mr. Nance:

Mr. Ott, I want to object, they have a policy which states that the employees are allowed three unexcused absences within the year. (L. 130-131)

Hearing Officer:

Ok, that is between Randi and the employer. I am only determining if Randi will receive Unemployment benefits. (L. 132-133)

This is a biased and prejudicial statement by Mr. Ott. I thought the reason for
having this hearing was to assess the material facts, to get to the conclusion. This is a very important point I make about the employer’s unexcused absence policy.

Hearing Officer:

I see I also have something regarding an order here, on August 25, 2006; did she get a warning at this time? (L. 168-169)

Ms. Kimmel:

Yes, a written warning for not showing up for her 4pm-10:00pm shift on August 18, 2006, the Supervisor contacted her and was told by Ms. Nance that she would be there at 6:00pm, and she later called back and stated that she had a headache and would not be in. (L. 170-173)

Hearing Officer:

We will call it a sick call off. And then I have is February 12, 2008, what was that all about? (L. 174-175)

Ms. Kimmel:

Did not follow protocol when calling off. At that time Randi was what was known as a PRN employee. The attendance policy of PRN employee is responsible for finding coverage when they will not be in to work. Randi failed to find anyone to cover for her absence. (L. 176-179)

Hearing Officer:

How about you Mr. Nance, any questions for Ms. Kimmel. (L. 189)

Mr. Nance:

Yes, Ms. Kimmel do you have a policy that states that an employee are allowed three unexcused absences in a year? (L. 190-191)

Ms. Kimmel:

Yes sir (L. 192)

Mr. Nance:

Do you understand that Department of Labor Law states that a person does not have to produce a reason for being sick unless they are off seventy two (72) hours? (L. 193-195)

Ms. Kimmel:

I know what our attendance policy states. (L. 196)

Hearing Officer:

She is not responsibility for the Department of Labor; she is only responsible for the employer’s policy whether it is right or wrong. (L. 197-198)

This is a ludicrous statement from Mr. Ott. Every employer is responsible for following the laws of the Department of Labor. This is where Mr. Ott is biased and prejudiced toward Randi again. This call off is no different than the absence on March 18, 2008 where Randi stated she was sick from the 10-hour transport of the participant to Kentucky, to which Randi was terminated for being sick. Also, the employer’s policy here fly’s in the face of Labor laws. An employee should not have to find a replacement employee when they call off sick.

Hearing Officer:

Mr. Guthrie lets go to you testimony, what happen on March 18, 2008? (L. 200)

Mr. Guthrie:

Randi was scheduled, I called talked to Randi about seven o’clock to determine if she was coming to work her evening shift. She said that she was tired from doing the transport earlier. I told her that we were understaffed and that we needed her to come in. (L. 201-204)

Hearing Officer:

You just told me that she stated that she didn’t know that she was supposed to work that 3:00pm-11:00pm shift. How did you know that she knew that she was supposed to work that shift? (L. 210-212)

Mr. Guthrie:

We put the schedule out a week in advance. (L. 213)

Hearing Officer:

Then it was on the schedule then? (L. 214)

Randi reports later in this testimony that she did not know she was on the schedule to work this day because Randi did not come to work until March 18, 2008.Reportedly, this schedule did not come out until Friday, March 14, 2008. Randi never saw the schedule. Randi informs Mr. Guthrie she is sick here. An employee does not have the responsibility of caring about whether an employer is
understaffed. Is this supposed to make her not sick anymore?

Hearing Officer:

You said that you called her at 7:00pm which was four hours after her shift started, why did you call her? Because she wasn’t at work? (L. 216-217)

Here, Mr. Ott provides the employer’s representative with the answer.

Mr. Guthrie:

She wasn’t back from her transport yet. (L. 218)

Hearing Officer:

Oh, what made you call her? (L. 219)

Mr. Guthrie:

She was suppose to come in, from what I understood she was suppose to be back around 4:00 or 5:00pm. (L. 220-221)

These are unfair labor practices here. Mr. Guthrie admits Randi had not come back from her transport until 7:00 pm. Randi was required and she reported to the facility to pick up the participant for the transport at 7:00 am. Randi returned from her transport at 6:00 pm. Randi left the facility after dropping off the transport at 7:30 pm. It is understandable that Randi was tired, sick and frustrated from this transport. If you check the weather for this day, it was raining heavily, which made the transport more difficult and frustrating.

Hearing Officer:

I see, she still wasn’t back yet and you were concerned. Where did you call her then at seven pm? Where was she? (L. 222-223)

Mr. Guthrie:

She was at our other residence call Bridge House (L. 224)

Hearing Officer:

Was she working? (L. 225)

Mr. Guthrie:

Yes, she said that she was cooking dinner for the participants. (L. 226)

Hearing Officer:

I am a little confused, where she was supposed to work starting at 3:00pm is that where you called her, or are talking about a different residence? (L. 227-228)

Mr. Guthrie:

She was at a different residence. (L. 229)

Hearing Officer:

How did you know to call her there? (L. 230)

Mr. Guthrie:

Because she did a transport for Bridge House earlier, and I called her on her cell phone and she told me that she was there. (L. 231-232)

Hearing Officer:

Ok, you called her cell phone; I know that you said that she was cooking dinner. Was she actually working and on the clock, a being paid? (L. 233-234)

Mr. Guthrie:

Yes (L. 235)

Hearing Officer:

Did you ask her why she was working at the other location when she was supposed to be at your location. (L. 236-237)

Mr. Guthrie:

Yes, that is when she told me that she was cooking dinner. (L. 238)

Hearing Officer:

That explains why she was cooking at one residence, when she was scheduled to work at your residence? (L. 239-240)

Mr. Guthrie:

I don’t know that is why I asked her to come over. (L. 241)

Randi was not getting paid, as Mr. Guthrie states in L. 235. Randi was volunteering her services to assist the employee who was working because this employee stated to Randi she was alone working in this house, which this is the house where Randi got the transport. Also, Randi informs Mr. Ott later in this testimony that she was not being paid as Mr. Guthrie states. As a matter of fact, Randi did her paperwork regarding the transport, signed out (clocked out) and then started cooking for the participants. Why does Mr. Ott believe he gets an answer to find Randi wrong with the statement in L. 239-240? This does not explain why she was cooking in one residence and not working in another.

Hearing Officer:

She did say that she was not aware that she was scheduled to work at your residence, or that she was tired and didn’t want to work. I am trying to find out what the employer knows. She gave you an explanation as to why she was cooking at one resident when she was schedule to work at another resident? (L. 242-245)

Mr. Guthrie:

No, except that she was tired (L. 246)

Hearing Officer:

but if you are working at one residence, you are still tired see what I’m getting at, why my way of thinking if you are tired why would she be cooking at one residence instead of going home? Did she explain that? (L. 247-249)

Mr. Guthrie:

No (L. 250)

Hearing Officer:

Was she working some kind of a shift there, or did she just stop by to cook dinner for the residents as a favor, did she say what was she doing there? (L. 251-252)

Mr. Guthrie:

No, she returned from the transport and began cooking. (L. 253)

Hearing Officer:

Did she say what time she returned from the transport? (L. 254)

Mr. Guthrie:

No (L. 255)

Why is Mr. Ott leading the witness? It appears Mr. Ott leads the witness to get the witness to change his testimony about Randi’s absence. Mr. Ott’s conversation continues to justify Randi’s inability to perform her work because she is sick, which she claimed from the beginning. Mr. Ott asks Mr. Guthrie again was Randi working. This time Mr. Guthrie admits she was not working at the other site. Randi was merely cooking assisting the other employee. This evidence so far is overwhelmingly in Randi’s favor. How could Mr. Ott miss ruling in Randi favor?

In addition, there is very important information in Lines 255 through 358. It was too wordy to insert here in this document. I will be filing a copy of this transcription from shorthand notes taken on May 23, 2008 along with this appeal writing. You will be able to review the testimony from this copy.

Mr. Nance:

Mr. Guthrie, Is it normal for a person to go on a ten hour transport, a drive to another city, and come back and work another eight hour shift? Is that how you work your employees? (L. 359-361)

Mr. Guthrie:

I wouldn’t say that was normal, however, she was scheduled to work a sixteen hour shift. (L. 362-363)

Randi had no knowledge she was scheduled to work a 16-hour shift, especially after a transport from Illinois to Kentucky in hazardous and rainy weather.

Hearing Officer:

You said that you were on a ten hour trip and that you got back between 6:00 or 6:30pm. (L. 365-366)

Randi:

Yes sir, I got back, there was a flood in Carbondale and when I found out that I was scheduled for a double, most of the employees that were scheduled that night had call off. I was at Bridge House and there was a co-worker, April Heath working by herself. I got a call from Brad telling me that everybody had called off and that he needed me at Woodlake. There was already an employee name Shree and him there, I do not know Shree’s last name working. And April stated that she didn’t want to work by herself, we had some trouble clients at the time that would start fights, even though it was a high functioning house. After I got off the phone the first time, I told him that I was tired, I wasn’t aware that I was working a double. He asked me if I had seen the schedule, I said no I had not seen the schedule because I was out of town the week end when the schedule was put out. I told Brad that I would call him back and let him know if I would come over to Woodlake. I didn’t call him back, he called me. Mean while April asked if I would help fix dinner for the kids, Brad called me in the middle of fixing dinner, I told him that I was too tired to come over to Woodlake, he said OK, I asked him what would be the consequences, he said most likely it would be a write up, I said OK, I’m going to call Sherry, which is the Program Director, and I’m going home. I clocked out and went home. Technically I was not clocked in, we have to fill out a sheet when we do transport and write in the time. (L. 367-385)

Hearing Officer:

Right, did you put in for the time you were at Bridgeview or whatever house you were in? (L. 386-387)

Randi:

No sir, I ended my time at 6:30pm which was the time we got back from the transport. (L. 388-389)

Hearing Officer:

OK, did you call the Director like you said you would? (L. 390)

Randi:

Yes sir I did (L. 391)

Hearing Officer:

What did you say to the Director, and what did she say to you? (L. 392)

Randi:

She did not answer I left her a voice mail, and explain the situation to her and told her I was calling her because I did not want it to result in a write up. I was unaware that I was working a double. (L. 393-395)

Mr. Nance:

I want to make a statement about what the law is Mr. Ott. And what governs 602A can I do that please. (L. 433-434)

Hearing Officer:

I know what 602A is all about, I done probably thousands of cases involving that law. (L. 435-436)

Mr. Nance:

I am talking about the Appellate court case, I have a right to say this don’t I? (L. 437)

Hearing Officer:

If you have an Appellate Court case state it. (L. 438)

Mr. Nance:

602A, a deliberate and willful violation of a reasonable rule or policy of the employee unit, governing an individual behavior and the performance of her work, provided that such violation have harmed the employing unit or other employees or has been repeated by the individual despite a warning of explicit instruction from the employing unit, 820ILCS405/602A, West 1998. This deification of misconduct reflect a legislative intent that a person should receive unemployment benefits even though they were discharged for incapacity, carelessness, inadvertence, negligent, or inability to perform the assigned task. It has been held that the act denies unemployment benefits only if (a)The employee had a reasonable work rule, (b) which the employee deliberately, and willfully violated and (c) the violation either harm the employee or other employees or was repeated despite a warning of instruction to cease the conduct. A single flurry of temper between and employee or supervisor may be enough to warrant discharge in an at-will relationship, but not enough to deny unemployment benefits.

The employer’s policies are very confusing, first, they say that you are allowed three unexcused absences in a year, However, Ms. Kimmel only sites one in 05, two in 06 and one in 08. And all with the exception of the one in 9/12/05, I give her that, all the others were sick call off. Yet they want to use that as a vehicle to terminate Randi. I think we are dealing with mixed questions of law also. Mixed question of law are fact question that requires an examination of legal effect of a given set of facts are reviewed for clear error, a standard in between the manifest weight and de novo standards. (L. 439-460)

Hearing Office:

That is more for the Board of Review or the Circuit Court not so much for me. (L. 461)

Mr. Nance:

Deference to the agency expertise is inappropriate here, where the department is charged with determining whether the employee behavior that led to her termination amounted to misconduct. (L. 462-464)

Hearing Officer:

That is covered when an appeal is given to the Circuit Court. (L. 465)

Mr. Nance:

I have a problem. This company has a policy, that I think flies in the face of the laws for the Department of Labor. When they say that when Randi calls in sick, she is supposed to call around to find someone to take her place? (L. 466-468)

Hearing Officer:

That wasn’t a problem at the end. That was not one of the problems which led to her termination. (L. 469-470)

Mr. Nance:

That is what they site sir. Let me tell you about February 12, 2008 warning. (L. 471)

Hearing Officer:

That was not a reason for her discharge, her failure to secure replacement was not a basic for her discharge, as I understood the testimony today. (L. 472-473)

Mr. Nance:

Ms. Kimmel stated that it was a part of it. (L. 474)

Hearing Officer:

That was prior warnings I just went into the background of the warnings. (L. 475)

Mr. Nance:

OK, the last day of work March 18, 2008, Ms. Kimmel admitted that Randi told her as well as Mr. Guthrie that she was too tired to work, that constitute being sick. (L. 476-478)

Hearing Officer:

But she was cooking dinner. (L. 479)

Mr. Nance:

Yes, she was cooking dinner. However, she was assisting a co-worker, that was having a hard time with a participant. Randi stated that she clocked out at 6:30pm, and that she was not on the clock. I suggest that Randi already knew that she was tired and sick after that twelve hour ride in the storm, and that she had notified the appropriate authority, Brad gave her the choice of coming to Woodlake or going home. I am suggesting what the company did by stating the March 18 incident, that they violated the Department of Labor Law by attempting to force Randi to work after reporting in that she was too tired to work a double shift. It takes seventy- two hours before presenting a doctor’s statement. All the employee is required to do is call in, and state that they will not be coming to work they do not have to give a reason. That is the Department’s Law. All employers must follow the rules/laws established by the Department of Labor, they may write their own policy, however, it must line up with the Department of Labor laws. One more issue. This March 20, 2008, that Mr. Fowler, let me go back to February 12, for this same incident, there was two warnings for the same incident. May I suggest that someone attempted to correct something and that Randi was not present and that she never saw the warning because it states that she refused to sign the warning? Someone signed the warning it looks like Mr. Fowler, one he signed on February 14th and one he signed on February 15th for the February 12th incident. Sir, there is something inappropriate about the documents. And what he puts on the second document February 15th, he states that she did not follow protocol when calling off shift that is all he stated, no facts were mentioned. At the bottom of the warning he stated staff will find courage or follow protocol when calling off shift. Earlier you stated that finding coverage was not part of the discharge, however, it must be a factor in the reasoning for the discharge if they are presenting it as evidence. Even though they didn’t talk about it, it is presented as evidence against Randi. Why did Mr. Fowler have to write? I would like to redirect, May I. (L. 480-508)

Hearing Officer:

After you have finished questioning Randi. (L. 509)

Mr. Nance:

I am finish questioning Randi. (L. 510)

Hearing Officer:

Does anyone else wish to question Randi? (L. 511)

All:

No (L. 512)

Don’t you find it strange that the employer’s representatives did not want to
question Randi? I think it is, even though Mr. Ott is doing very well protecting the
employer.

Hearing Officer:

Mr. Nance you wanted to ask Mr. Fowler some follow up question? (L. 513)

Mr. Nance:

Yes, Mr. Fowler on February 12th you wrote two warnings against Randi the first one dated and signed by you February 14th, stated that staff did not follow protocol when calling off shift, staff had a dispute with supervisor the night before and gave no reason for calling off shift. Mr. Fowler are you saying that your employee has to give you a reason for calling off shift? (L. 514-518)

Mr. Fowler:

Yes (L. 519)

Mr. Nance:

Are you also saying, at the bottom of the warning where it states improvement required staff will find coverage and/or follow protocol when calling off shift. Mr. Fowler, are you saying that when they call off sick they have to find someone to cover for them when calling off sick? (L. 520-523)

Mr. Fowler:

Yes (L. 524)

Mr. Nance:

Mr. Fowler on February 12th you signed another warning against Randi, and dated it February 15th, on which you wrote as fact,” did not follow protocol when calling off shift”. And, improvement required,” staff will find coverage”. Why did you find it necessary to write two warnings? (L. 525-528)

Mr. Fowler:

I actually took that out. The first one I took out of the file. (L. 529)

Mr. Nance:

You took that out; actually you did not take it out of the file because it was given to me and the Judge as evidence. OK, if you took the February 12th out then the one for February 15th the one remaining in the file “states did not follow protocol when calling off shift” what are we suppose to think regarding that statement, there are no facts there? Mr. Fowler did you ever present Randi with the warning? When you wrote employee correction action, do you let the employees know that they are being disciplined? Do you let them see the corrective action? (L. 530-537)

Mr. Fowler:

Yes (L. 538)

Mr. Nance:

Did Randi see the write up for February 15, and/or the write up for February 12th? (L. 539-540)

Mr. Fowler:

No (L. 541)

Mr. Nance:

Don’t you think that it is inappropriate for you to write a warning on an employee and not show them what is written on them? (L. 542-543)

Mr. Fowler:

It is the same warning. (L. 544)

Mr. Nance:

It is not, it can’t be the same warning when I have two different dates. (L. 545)

Mr. Fowler:

I just took out a part. (L. 546)

Mr. Nance:

Is that normal procedure of your company to add and/or remove facts from the warning without letting the employee know anything about it? (L. 547-548)

Mr. Fowler:

No (L. 549)

Mr. Nance:

Then why did you do it? (L. 550)

Mr. Fowler:

I am not sure; I didn’t think that it was needed. (L. 551)

Mr. Nance:

Did you do this just to get rid of Randi (L. 552)

Mr. Fowler:

No (L. 553)

Hearing Officer:

The prior warning in February is not critical to this decision, at least not in the detail that you are going into. There was a warning regarding not calling off on a shift is really all that concern me. (L. 554-556)

Mr. Nance:

Mr. Ott this is for you, how can you say that a prior warning is not material fact? (L. 557)

Hearing Officer:

It is relative (L. 558)

Mr. Nance:

Now, a bogus employee warning is always a material fact, because through this testimony, an employer cannot change a document without letting the employee know it. (L. 559-561)

Hearing Officer:

I know of no ruling like that (L. 562)

Mr. Nance:

The Appellate Court will not allow that, even though we are not sitting in the Appellate Court and I’m trying not to go there. This has got to be a bias hearing you can’t tell me that you are going to reject testimony. (L. 563-565)

Hearing Officer:

I can reject testimony that is not relative to my decision. (L. 566)

Mr. Nance:

Aren’t you also required to accept testimony that refutes the charge against the individual. (L. 567-568)

Hearing Officer:

Yes (L. 569)

Mr. Ott tells us here that he has made a decision before he has heard all the
testimony. Mr. Ott states that prior warnings are not material fact but he will use it in his decision making. (L. 554-556) Mr. Ott is applying a double standard for
Randi. Mr. Ott is making the ceiling is too high for Randi. Randi will not be able to
reach it.

Hearing Officer:

I am going back to Mr. Guthrie, Mr. Guthrie Randi stated that she was unaware that she was to work the second shift the 3-11pm shift on March 18th. Did she tell you that if she know about it. (L. 589-591)

Mr. Guthrie:

She said that she didn’t know about it. (L. 592)

Hearing Officer:

How did you know then that she knew about having to work. (L. 593)

Mr. Guthrie:

Well there is a schedule book at Bridge House and she could have look at it then. (L. 594-595)

Hearing Officer:

Was she working at Bridge House when the schedule was posted. (L. 596)

Mr. Guthrie:

She was cooking there she could have looked at it then. (L. 597)

The employer’s representative here is inconsistent with his testimony. From the testimony here, Mr. Guthrie suggests Randi should have known at this instance she was supposed to work a double shift. Before he talked about how she should have known before her transport, to which Randi had not been to work. The employer’s representatives have suggested from the onset that Randi knew she was supposed to work a double when she asked for the transport, which is not true.

Mr. Nance:

Mr. Guthrie, you stated that the schedules come out in advance? (L. 604)

Mr. Guthrie:

They are general put out a week in advance. (L. 605)

Mr. Nance:

When did this schedule come out? (L. 606)

Mr. Guthrie:

I don’t know, I don’t make up the schedule (L. 607)

Mr. Nance:

All you know is that you probably saw Randi’s name on a schedule for that house? (L. 608-609)

Mr. Guthrie:

Yes (L. 610)

Mr. Nance:

Was Randi scheduled to work Monday night, March 18th was a Tuesday that is the day she went on the transport, she also stated that she did not work the weekend because she was out of town, so her first day back was Tuesday. That was the first day she saw the schedule. What would make you think that she would look at the schedule to check if she was scheduled for a double on March 18th? (L. 611-615)

Mr. Guthrie:

It is the employee responsibility to know when they work and what shift they are working for the week. (L. 616-617)

Hearing Officer:

Mr. Guthrie, Somebody told the local Unemployment Office that Ms. Nance had agreed to work the double shift before March 18th. Do you know anything about that? (L. 618-620)

Mr. Guthrie:

No (L. 621)

Hearing Officer:

What about you Mr. Fowler? (L. 622)

Mr. Fowler:

I spoke to Randi about it, that is the reason that her shift was to end at 10:00pm, otherwise the shift would end at ll:00pm. (L. 623-624)

Hearing Officer:

When did you talk to her about the double? (L. 625)

Mr. Fowler:

It was the week prior when she signed up for the transport. (L. 626)

Hearing Officer:

Was that the time when you talked to her about the 3:00pm-10:00pm shift and she agreed to work the shift? (L. 627-628)

Mr. Fowler:

Yes (L. 629)

The employer’s representatives did not answer Mr. Ott’s question. (L. 618-620)

Hearing Officer:

Randi, Mr. Fowler stated that he talked to you about a week before about working the double shift. Did he do that? (L. 638-639)

Randi:

No sir, he called me Friday morning to confirm the transport. Sherry Dordie had call me and ask if I wanted to do the transport, I said yes that was what I was going to do. He said “OK, I take you off the schedule”; oh I see you are scheduled for a double”. I told him that I would do the transport but I would not work a double. (L. 640-643)

Hearing Officer:

OK, that takes care of that. When you say Friday morning you are talking about March 14th? (L. 644-645)

Randi:

Yes sir. (L. 646)

Hearing Officer:

Any other question for Randi? (L. 647)

Mr. Nance:

Randi, how would you know that you were to work a double if you weren’t there? (L. 648-649)

Randi:

I wouldn’t (L. 650)

Mr. Nance:

You didn’t work Monday? (L. 651)

Randi:

No sir (L. 652)

Mr. Nance:

So you didn’t work March 17th to see the schedule? (L. 653)

Randi:

No, after talking to Mike Fowler he didn’t tell me that I was scheduled to work any other time except to work the transport Tuesday morning. (L. 654-655)

Mr. Nance:

When did that question come out? (L. 656)

Randi:

I will assume Friday afternoon since I talked to Mr. Fowler Friday morning. (L. 657)

Hearing Officer:

Is there anything else Mr. Nance, I am about to close this hearing. (L. 661)

Mr. Nance:

It appears that Mr. Fowler makes arbitrary decisions without informing anyone about the changes. He stated that he changed the time on the schedule; however, he never said that he informed Randi of the change. He changed the notice February 12th he just changes it. How could you believe anything he said because in this hearing he stated that he never informed anyone of changes made in the schedule or warning. It is my contention that Mr. Fowler created all the facts in this matter for the sole purpose of terminating Randi. (L. 662-668)

Hearing Officer:

Why would he want to terminate her? (L. 669)

Mr. Nance:

It is in a letter that I wrote you, regarding another employee. (L. 670)

Hearing Officer:

I am closing this hearing. They employer’s witnesses may now go about their business, Thank You. (L. 671-672)

Randi’s Argument

I, Fred L Nance Jr., advocate for Randi and under the guidance of Randi, presents the following narrative in support of Randi’s claim for unemployment benefits.

The primary purpose of the Act is to provide compensation benefits to unemployed individuals to alleviate their economic distress caused by involuntary unemployment, not to benefit those who are unemployed because of their own misdeeds. Miller v. Department of Employment Security, 245 Ill. App. 3d 520, 522 (1993). Receiving unemployment insurance benefits in this state is a conditional right, and the claimant bears the burden of proving his eligibility for those benefits. Miller, 245 Ill. App. 3d at 522. There was no misdeed committed by Randi. This is clearly an erroneous decision by Mr. David Ott, Administrative Law Judge for the Illinois Department of Employment Security.

Mr. David Ott did not consider any mitigating factors on this issue. Nor did he give any credence to the “entire” testimony given by the parties. This decision by Mr. Ott demonstrates bias and prejudice toward Randi and her claim for unemployment benefits. In addition, Randi provided information and testimony bringing the employer’s supervisor Mr. Michael Fowler’s integrity and honesty in to question. Mr. Fowler wrote the employee warning notice that initiated Randi termination, suggesting misconduct on the part of Randi. There was no misconduct by Randi.

IDES’s local office states “The claimant was discharged from Center for Comprehensive Svcs because of an unauthorized absence of a scheduled work shift….” Mr. Ott turns the determination of the local office upside down when his opening statement of the issue is “Was the claimant discharged for misconduct connected with work as defined in Section 602A of the Illinois Unemployment Insurance Act?” and again when he suggest Randi was terminated because of insubordination. What is Randi defending? Is this a “catch all” tactic of Mr. Ott or IDES? This is a discriminatory practice by IDES or its administrative law judge.

Nevertheless, Section 602A of the Act defines misconduct as: the deliberate and willful violation of a reasonable rule or policy of the employing unit, governing the individual’s behavior in performance of her work, provided that such violation has harmed the employing unit or other employees or has been repeated by the individual despite a warning or other explicit instruction from the employing unit. 820 ILCS 405/602(A) (West 1998)

This definition of misconduct reflects a legislative intent that persons should receive unemployment benefits even though they were discharged for incapacity, carelessness, inadvertence, negligence or inability to perform assigned tasks. Washington v. Board of Review, 211 Ill. App. 3d 663, 667, 570 N.E.2d 566 (1991). It has been held that the Act denies an employee benefits only if (1) the employer had a reasonable work rule (2) which the employee deliberately and willfully violated, and (3) the violation either harmed the employer or other employees, or was repeated by the employee despite a warning or instruction to cease the conduct. DeBois v. Department of Employment Security, 274 Ill. App. 3d 660, 664, 653 N.E.2d 1336 (1995), citing Kiefer v. Department of Employment Security, 266 Ill. App. 3d 1057, 1061, 640 N.E.2d 1252 (1994), and Zuaznabar v. Board of Review of the Department of Employment Security, 257 Ill. App. 3d 354, 356, 628 N.E.2d 986 (1993). Therefore, this three-prong test for misconduct is that the employer meets all 3 standards. Mr. Ott does not include this “entire” definition in his “conclusion.” When Mr. Ott states he is not concerned with prior warnings in making his decisions, he throws these cases out the window.

Mr. Ott reports that Randi had a history of attendance problems about which the employer warned her, even though he was not concerned with prior warnings and they would not be used in his decision. The employer’s “Personnel/Attendance policy regarding unexcused absences is an unreasonable work rule. The policy states “…Employees are allowed three unexcused absences in a year. The year will be defined by the first occurrence of an unexcused absence.” Randi stated in her hearing that this policy is ambiguous due to other language following it, which could be construed as being confusing. According to the employer’s records of Randi’s absences submitted, Randi had unexcused absences on the following dates: 9/12/05, 11/16/05, 3/13/06, 8/25/06/ 9/22/06, 12/17/07, 2/12/08 and 3/18/08. Randi has not violated the employer’s unexcused absence policy. In addition, on March 18, 2008 Randi was not aware she had to work 2 shifts, which is the employer’s basis for Randi’s termination.

In addition to the above unreasonable work rule, the employer has another unreasonable work rule embodied within their Personnel/Attendance policy, which Mr. Ott conveniently left out of his “findings of fact.” The unreasonable work rule of the employer is “…staff are responsible for finding a replacement for their shift and informing their supervisor who will be covering their shift in the event of their absence.” The employer attempts to find Randi liable for not finding this replacement on 2/12/08 when it states in her “employee warning notice”, section “Improvement Required, “…Staff will find coverage…when calling off shift.” Mr. Ott sanctions this “unreasonable work rule” when he states in his “findings of fact” “…The claimant had a history of attendance problems….” What attendance problems? Randi has not violated the employer’s unexcused absence policy, even though Mr. Ott states this will not be considered in his decision making.

Randi did not deliberately and willfully violate the employer’s unexcused absence rule. On March 18, 2008 Randi informed Bradley Guthrie, Shift Supervisor of Woodlake residential, that she was tired from doing the 11 ½ hour transport earlier and didn’t want to work at Woodlake. When Randi stated she was tired from her 11 ½ hour transport, it constituted an illness or being sick. To suggest an employee cannot be sick and refuse to work violates the laws of the Department of Labor. To suggest that an employee calling in sick must find a replacement for her absence is not only an unreasonable work rule but it also violates the laws of the Department of Labor.

In addition, on or about March 14, 2008 Randi had informed Mr. Fowler when she confirmed her scheduled transport to Kentucky for March 18, 2008 that she did not know she was “scheduled” to work a double shift that day, and refused scheduling a double shift with Mr. Fowler. At that time, Mr. Fowler stated he would remove Randi from the double shift. Mr. Ott states, in part, that Randi was scheduled to work a double shift, which the 2nd shift was 3:00 pm to 10:00 pm. Mr. Ott conveniently leaves out of his “findings of fact” that Randi did not return from the transport until 6:30 pm; that Randi stated the transport was 11 ½ hours; that the drive involved being in heavy rain and inclimate weather.

Mr. Ott states in his conclusion “…Insubordination is the refusal by an employee to comply with a reasonable directive of the employer. The claimant’s actions constituted insubordination.” Randi’s actions did not rise to the level of insubordination. Randi merely stated facts when she said she told Mr. Fowler do not put her on the schedule to work a double shift on the day she does the Kentucky transport, which was the day in question here, March 18, 2008. This discussion with Mr. Fowler, at best, could be called constructive argument.

A single flurry of temper between a worker and a supervisor may be enough to warrant discharge in an at-will relationship. But it is not enough to deny unemployment benefits. The courts have held that arguing with a supervisor without using abusive language or threats is not sufficient to establish discharge for misconduct under the Act. Gee v. Board of Review of the Department of Labor, 136 Ill. App. 3d 889, 896, 483 N.E.2d 1025 (1985), citing Sheff v. Board of Review, Illinois Department of Labor, 128 Ill. App. 3d 347, 470 N.E.2d 1044 (1984).

Mr. Ott suggest in his conclusion that the employer’s request that Randi report for work was reasonable because the residential facility was understaffed. If this was a reasonable request for Randi, would it not be a reasonable request to other staff who called off from that facility because of the inclimate weather? In Randi’s testimony she states that most of the staff who called off, called off because of a flood in the Carbondale, Illinois area. This flood also affected Randi, especially during the transport. The employer’s request for Randi to work was not reasonable but discriminatory. Evidently, this request to work was not made to the other employees who called off.

The record (telephone interview conducted by Mr. Ott) will demonstrate the evidence (employee warning notices) sent to Randi, included the schedule for Woodlake residence but not the Bridge house residence. The Woodlake schedule showed 4 staff on shift, yet there were only 2 working. There were only 2 people on the schedule to work at the Bridge house residence, but only 1 employee showed up for the shift. Randi stayed at the Bridge house residence to help out her co-worker April Heath, because she was the only staff on shift and requested Randi’s assistance in cooking dinner for the residents. Randi was not on the employer’s time, she was not clocked in, nor did she record those hours on her transport time sheet for pay, as Mr. Guthrie states in his testimony. Randi was doing the employer a “favor” by assisting her colleague when she was cooking while the colleague attended to a disruptive client.

Therefore, Mr. Ott’s statement “…She could not have been all that tired because she was helping out at another residential facility by cooking dinner…” has no validity to suggest Randi was not tired or sick, but rather, demonstrates Randi’s loyalty to her peers and this employer in times of stress and difficulty. I would like to see Mr. Ott go on a 100 mile/11 ½ -hour transport/trip with a mentally challenged client, and then come back to do an 8-hour shift with similar clients. If he could perform this task, then I guess we could call the employer’s scheduling of Randi for this double shift, on this day, a “reasonable” directive. There is no mention of the employee who went on the transport with Randi. Did this employee have a reasonable directive to work a double shift also? Is the treatment of Randi indifferent or racially motivated?

I believe it would be appropriate to address the 3rd prong of the DeBois test now. Did Randi’s refusal to work harm the employer or other employees, or was it repeated by her despite warnings or instructions to cease this conduct. Randi did not violate this prong of the DeBois test. By Mr. Ott’s stating the employer’s residential facility was understaffed suggests the employer’s residential facility was already compromised. Randi never knew she was supposed to work at Woodlake until Mr. Guthrie called her because she believed she had an agreement with her supervisor Mr. Fowler that he had taken her off the double shift because of the transport, so how could she be aware that she was imposing harm to her employer. Lets not leave out Mr. Ott’s statement that he will not consider “repeated warnings…” in his decision making. Mr. Ott discourages this prong of the test.

In addition, Mr. Ott states in his “conclusion” that “…The claimant’s explanation that she was not going to work because she was tired was not a reasonable excuse for failing to follow her supervisor’s directive. When Randi said she was tired, it is supported by the Washington court when it said the definition of misconduct reflects a legislative intent that persons should receive unemployment benefits even though they were discharged for incapacity, carelessness, inadvertence, negligence or inability to perform assigned tasks. Randi was not terminated because of misconduct or an unauthorized absence. If Randi was terminated for anything justifiable, it may be because of her carelessness, negligence or inability to perform assigned tasks; which the latter may be more appealing in this instant matter.

After the hearing, on or about May 26, 2008 at approximately 8:45 am Fred L Nance Jr. called Mr. Ott leaving a message stating “Rodrick text messaged Randi at 7:25 pm on May 23, 2008 stating, “So why did you pull that card.” Fred requested Mr. Ott give a return call acknowledging receipt of this call. Mr. Ott called Fred on May 26, 2008 acknowledging receipt of this call and its message.

On May 23, 2008, during the telephone hearing, Fred made reference to Mr. Fowler’s indifferent treatment and discrimination against Randi. Fred stated, Randi informed him that Mr. Fowler and Rodrick had a sexual relationship; and that, Rodrick had many more absences than Randi that Mr. Fowler had not reported to their employer as he did against Randi. Fred suggested this indifferent treatment and discrimination was a direct result of the intimate and sexual relationship Mr. Fowler had with Rodrick. Therefore, the call Randi received from Rodrick is construed as harassment and retaliatory for her testimony in this instance. Randi expressed to Fred a fear for her safety.

The house where Randi was cooking the food needed more than one staff person. This house is considered to be a “higher” functioning house by the employer. Nevertheless, the employer has a policy where even though the clients should be able to cook for themselves, there must be a staff person present. This would mean there would have to be at least 2 employees present or working in the house.

In conclusion, Mr. Fowler initiated and promoted this incident leading to Randi’s termination. Mr. Fowler’s integrity, judgment and motives are questionable here. The unexcused absence policies and procedures of the employer are not reasonable. They are subjective. Who was punished or written up when the house where Randi was fixing dinner did not show up? This house was understaffed. This charge against Randi by the employer is discriminatory and has elements of indifferent treatment.

The determination of the Local Office and Mr. Ott’s decision should be set aside. Randi should receive her unemployment benefits. Randi was unemployed from March 18, 2008 to May 12, 2008.

Respectfully submitted,

Randi

AFSCME (the union):Illinois' Sheridan Correctional Center Strike of June 6, 2006

Reference: National Legal and Policy Center "Union Corruption and the Law" by Phillip B. Wilson located on their website at http://www.nlpc.org/

Update: January 2, 2007

While researching my issues for the upcoming litigation in Federal Court against AFSCME, specifically Local 472, I discovered a tactic this union is possibly pursuing with the new vendor. I believe this union is pursuing a “closed shop” with the new vendor instead of an “open shop.”

The term “closed shop” is used to signify an establishment employing only members of a labor union. The union shop, a closely allied term, indicates a company where employees do not have to belong to a labor union when hired but are required to join within a specified period of time in order to keep their jobs. In the alternative, an employment “open shop”, strictly speaking, is one that does not restrict its employees to union members or membership.

I am not sure why the new vendor would subject its employees to the strict standard of a “closed shop”, but it is worth investigating since it will impact my employment and salary. The new vendor taking a position of an “open shop” with AFSCME can be negotiated, especially since AFSCME does not want to adopt the doctrine of cultural diversity in its leadership or Board leading to fairness and equality for the employees (counselors) it plans to represent at Sheridan Correctional Center (Sheridan).

Many states either by legislation or by court decision have banned the “closed shop.” In 1947 the Taft-Hartley Labor Act declared the “closed shop” illegal. Arguments in favor of the “open shop” are that forcing unwilling workers to pay union dues or agency fees is an infringement of their rights; that union membership is sometimes closed to certain workers or the initiation and/or agency fee is so high as to be an effective bar to membership; and that “employers” are deprived of the privilege of hiring competent workers or firing incompetent ones.

Presently, AFSCME does not have enough votes to call a strike against the new vendor if their demands are not met. If the new vendor allows AFSCME to have a “closed shop” it will be able to call a strike if their demands are not met.

In the United States Court of Appeals for the 7th Circuit it suggests a union becomes the exclusive bargaining representative for a group of employees when explicit voluntary recognition occurs by an employer who expressly assents to a union’s representation. See Jefferson Smurfit Corp., 331 N.L.R.B. 809, 809 (2000); or implicit voluntary recognition occurs when an employer’s statements or conduct clearly and unequivocally demonstrate that it has made a commitment to enter into negotiations with a union. See Nantucket Fish Co., 309 N.L.R.B. 794, 795 (1992). The NLRB has consistently held that merely reviewing authorization cards does not count as implicit recognition. See Jefferson Smurfit Corp., 331 N.L.R.B. 809, 809 (2000). Furthermore, the court notes that the NLRB’s decision is consistent with national labor policy, which favors the voluntary recognition of a majority union. See NLRB v. Lyon & Ryan Ford, Inc., 647 F.2d 745, 750 (7th Cir.1981). AFSCME, specifically Local 472, does not have a majority union.

If the new vendor allows this “closed shop”, what is the agency fee? I will research this issue more closely and will provide a follow up report. The follow up report will encompass an analysis of other Illinois State agency contracts where AFSCME represents its employees, specifically, where there are non-union employees, such as the Illinois Department of Employment Security and the Illinois Department of Health and Human Services. There may be mitigating issues here.

The new vendor must acknowledge there is no one advocating for those who oppose this union’s cultural diversity disparity. We are left out of the loop for all practical purposes of negotiating a meaningful contract that includes all the people.

Update: December 30, 2006

As previously reported on this site: On December 20, 2006 Mr. Henry Bayer, Executive Director of AFSCME, responded to a letter I sent to him suggesting his collective bargaining unit for the counselors at Sheridan Correctional Center (Sheridan) is discriminating against others of cultural differences.

This collective bargaining unit has no cultural diversity attached to its board members. There are no latinos or blacks sitting as Board members for AFSCME's collective bargaining unit at Sheridan. There may have been blacks on their Board when they first started the collective bargaining unit at Sheridan, but after this union's strike fiasco on June 6, 2006 the blacks that were apart of the bargaining unit declined their memberships. For this cause, new Board members of latinos and blacks must be present in the collective bargaining practice for it to have meaning of representing all the counselors at Sheridan to the new vendor. Why should the new vendor honor any proposal from AFSMCE's collective bargaining unit if it does not represent all the counselors?

Mr. Rob Fanti believes he does not have to put any "latinos or blacks" on "his" Board. I guess Mr. Bayer and Fanti believe they know how "lationos and blacks" think and what their needs are. The people who are on this Board bring information to their "respective" class members only. By the absence of latinos and blacks on this Board, there is not a dissemination of information about the proposal and any proposed union business. Therefore, we should not have to pay any type of dues to this union.

This union's actions are certainly a norm for that part of our society who oppressed and discriminated against "blacks" for over 400 years. The discrimination continues at Sheridan.

When I, as a black man, requested to be on their Board, Mr. Bayer responds: "If you sign a membership card, then you have the right to vote and to run for elected positions." This is an absurd answer. I do not need a membership card for this collective bargaining unit to represent me at the bargaining table with new vendor at Sheridan. There is something wrong with this picture, and our society who allows this to happen. There needs to be and must be stronger legislation against union activities as suggested in the writing "Union Corruption and the Law" by Phillip B. Wilson. There should be a public outcry about the way unions operate, specifically, outside the legal parameters of the law and common decency.

Mr. Bayer goes on to say "...Some local unions require a member to be in good standing for a year before becoming a candidate for office." I guess this means going along with the agenda of Mr. Fanti, who uses his members as pawns in a chess game. Bargaining unit members, be real clear of his intentions. If Mr. Fanti cared about "all" the counselors at Sheridan he would believe in cultural diversity. The only culture he is interested in is his own culture and their needs.

Mr. Bayer also states "...I'm not familiar with the Addiction Study Program Committee on which you sit, but in AFSCME members attain office by gaining the confidence of their co-workers and getting a majority of the vote." What kind of craziness is this? What Mr. Bayer really means if you have a one-way thought process you can be part of their team. This one-way thinking promotes my original discussion on why this collective bargaining unit at Sheridan does not want any "real" black men or women sitting on its board. This bargaining unit does not want real discussion of the issues. The Boards I sit on are clear of my intentions. My intentions promote fairness and consistency, not an alignment to the values and concerns of a particular agenda.

This bargaining unit believes they can make demands upon an employer to "take care" of them because they are employed by them. This is ludicrous. A person gets what they work for, no more, no less. A certain amount of a discipline's academic and experience gains power in negotiating for or having more or requesting more from an employer. You have to have something tangible to bargain with in these negotiations.

The people who sit on this collective bargaining unit Board have no idea what people of color need or want. These people have no idea what the needs are of social services. They come from their kitchens, Walmart, K-Mart or other disciplines or through nepotism demanding things because they have seniority "counseling" at Sheridan. Just because one has worked at Sheridan for 2 or 3 years as a "counselor" does not mean they know how to apply the techniques and theories of the counseling discipline. One may not learn from their peers who do not know social services, but rather from those who have the real experiences of social services and clinical knowledge of the subject matter. One certainly will not learn or know anything if they have certification credentials which come from falisified clinical supervisions.

One may not learn from peers but rather from those who have the real clinical knowledge of the subject matter. One certainly will not learn or no anything when they have certification credentials which come from falisified clinical supervisions. A company is looking for "good service" meaning accountability. A person should not be paid and receive benefits just because they come to work. If one is not doing their work appropriately, the company should be able to take the appropriate steps to assure that services are being rendered appropriately and effectively.

Mr. Fanti and Mr. Bayer do not want to address this issue. They do not want a person like myself who would make them look at themselves before they construct a package to present to an employer. You cannot or should not tell a client to look at themselves if you are not willing to look at yourself. What Mr. Fanti and Mr. Bayer need to do is read "Union Corruption and the Law" by Phillip B. Wilson.

This is also posted on my other website at: http://click.townhall.com/

Update: December 21, 2006

On or about December 18, 2006 I returned a call and talked to Attorney Charles E. Tucker of the United States Government, National Labor Relations Board about filing a charge against AFSCME in this matter. On December 21, 2006 I received the charge in the mail. The charge, as Attorney Tucker interprets my writing, does not address the issues. When I talked to Attorney Tucker I informed him I probably would not file a charge with his office because I will get better results this time by filing a civil complaint in the United States District Court for the Northern District of Illinois, Eastern Division. This process will work better in addressing the issues. The discovery process will be mandatory.

For example, I can use the Landrum-Griffin Act, which is organized into five titles, that is, Title I contains the Bill of Rights for members of labor organizations; Title II requires reporting by labor organizations, officers and employees of labor organizations and employers; Title III regulates the use of trusteeships and limits the purposes for which a trusteeship may be imposed by a labor organization; Title IV regulates union elections, requiring they be held not less than every five years at the National level; and Title V outlines the fiduciary responsibilities. There are at least four disadvantages to filing an NLRB claim. First, NLRB powers are remedial. Second, the Board's role is to ensure that national labor policy is met, whether or not the union member enjoys an optimal outcome. Third, the findings of the NLRB could be binding in other litigation, and for this reason the plaintiff may want to choose to litigate in a different forum with more formalized discovery; and Fourth and finally, the NLRB is made up of political appointees whose rulings often change with presidential administrations.

Update: December 16, 2006

I faxed a copy of this letter to the United States Government, National Labor Relations Board's Mr. Will Vance, Officer-in-charge. I requested a complaint form for filing a charge in this matter.
December 15, 2006

Mr. Henry Bayer, Executive Director AFSCME Council 31, AFL-CIO
29 N. Wacker Drive, Suite 800
Chicago, Illinois 60606

Re: Local 472 – Board Membership and Equal Representation at Sheridan Correctional Center

Mr. Bayer:

I, Fred L Nance Jr., am requesting action and information about AFCME Board Membership with Local 472, which is representing the employees (counselors) at Sheridan Correctional Center (Sheridan). AFSCME’s Local 472 is the bargaining unit for employees (counselors) of the new vendor at Sheridan. There are no African Americans, males or females, presently sitting on the Board bargaining for a contract with the new vendor, supposedly representing all the employees of the new vendor. I am an African American. Every present sitting Board member is white, yet they are supposed to represent African Americans.

This has the appearance of unfair representation, with racial overtones. I requested Board membership and was told I have to hold a membership card. Why do I have to have a membership card? Local 472 is in the process of bargaining for a contract with the new vendor, representing me as a member of their Local and I do not have a membership card? I do not have to have a membership card for Local 472 to represent me. Local 472 is the bargaining unit for all the Sheridan employees (counselors) of the new vendor, with or without membership cards, white and black.

There are no African American Board members. How can the African Americans who work for the new vendor be properly represented when they have no representation at the table? Why am I being denied the opportunity to be a Board member? Is it because I am black?

I have been told that I have no right to a vote since I do not hold a membership card, yet AFSCME represents me at the bargaining table. This not having a right to vote sounds familiar.

I have been told I have no right to be at a meeting held by AFSCME discussing the bargaining issues that are going to be presented, in my behalf, to the new vendor because I do not have a membership card. I sent an e-mail to Mr. Rob Fanti requesting a copy of the proposed contract. Mr. Fanti has not contacted me, even though he has seen me numerous times at work. I guess I am not entitled to a copy of the proposed contract, even though each present sitting Board member, who is white, has been privy to this proposed contract.

If AFSCME can bargain for me at the table with the new vendor when I do not have a membership card, then I should have all the rights of similarly situated others who do have membership cards who are being represented. The proposal AFSCME is about to present or has presented to the new vendor does not have proper representation of all the employees of the new vendor.

I have heard that AFSCME is getting ready to bargain with the new vendor. AFSCME has withheld information about the bargaining practice from its non-cardholding members whom they purport to bargain in their behalf.

Also, when does voting take place for the Board members? Are the non-cardholding members exempt from the voting process? The last vote for Board members took place in November of 2005.

Therefore, I respectfully request consideration for Board membership with Local 472 as they represent the employees (counselors) at Sheridan. I respectfully request, from AFSCME, equal and fair representation at the bargaining table as a Board member, that is, there should be African Americans sitting on this Board discussing the issues that will impact the employment of African Americans since they are being represented by AFSCME.

I am familiar with Board membership. I presently sit on Kennedy-King College’s Addictions Study Program as a Board member. I have been a Board member with Kennedy-King for 7 years. I am a Board member of the International Institute of Black Addictions Professionals (IIBAP). I sit on IIBAP’s research committee. There is no one sitting on this Board holding academic standing and credentials such as what I have to offer. There should be no reason why I cannot sit on this bargaining unit Board to discuss and articulate the issues of employment. I have extensive knowledge of employment law. I have extensive knowledge of human/social services.

Respectfully submitted,

Fred L Nance Jr., ABD, MA, CADC, NCRS

cc: Mr. Henry Bayer, Executive Director (U.S. mail and fax delivery)
W. James Young, Attorney National Right to Work Legal Defense Foundation
Catherine L. Struzynski, Esq., AFSCME Council 31 (fax delivery only)
Rainbow/Push Coalition
http://click.townhall.com/
http://clickforjusticeandequality.blogspot.com/

Update: October 3, 2006

I talked to Ms. Efia Goosby, Illinois Department of Employment Security (IDES) Supervisor on October 2, 2006 requesting she recuse herself from judging my IDES Appeal. Ms. Goosby refuses to include the Illinois Department of Corrections in my appeal, even though I have persisted in requesting their inclusion because they locked me out from my employment, and that they are the "indirect employer" in this matter. I have also left a message with Ms. Goosby's supervisor Hilda Whittington.

I informed Ms. Goosby one of her line items for discussion in my pre-hearing of September 28, 2006 was "Whether the Administrative Law Judge, Efia Goosby, must disqualify herself from hearing this matter." Ms. Goosby informed me on October 2, 2006 that this issue will be discussed on October 12, 2006 at my "hearing." This is absurd.

AFSCME (the union) employees striking at Illinois' Sheridan Correctional Center (Sheridan) are not entitiled to unemployment benefits because they voluntarily walked off their jobs. Employees who were locked out from their employment by their employer, specifically the State of Illinois/Illinois Department of Corrections as "de facto or indirect employers" because they jointly control the day-to-day operations of the facility and the substance abuse program, are entitled to unemployment benefits.

During a telephone pre-hearing interview on September 28, 2006 between the Illinois Department of Employment Security's (IDES) Administrative Review Board and the participating and non-participating employees of the strike, AFSCME Attorney Scott Miller cited this case to suggest the non-participating employees were not entitled to unemployment benefits. The case cited is AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES (AFSCME), COUNCIL 31, Appellee, v. THE ILLINOIS STATE LABOR RELATIONS BOARD, STATE PANEL, et al. (The Department of Central Management Services et al., Appellants). Opinion filed October 6, 2005.

This case does not apply to the present situation regarding the non-participating employees of this strike. In the first instance, AFSCME is the "bargaining unit" of the striking employees. AFSCME does not have a "contract" with the employer of the employees who were striking, which renders this cited case useless.

Ms. Efia Goosby, Administrative Law Judge, erroneously accepted this cite from Mr. Miller even though it was established during this telephone pre-hearing interview that Mr. Miller would not be allowed to participate in the proceedings of the non-striking employees, nor would Mr. Miller be representing the non-participants of the strike. I strongly objected to the acceptance of this cite. Nevertheless, Ms. Goosby exercised her biased and prejudiced authority to overrule my objection.

I will be posting this case for the viewing public.

On March 7, 2005, Illinois Governor Rod Blagojevich signed into law an act that amended Section 604 of the Illinois Unemployment Insurance Act. As amended, Section 604 now provides unemployment benefits to employees who are locked out by their employer. Effective January 1, 2006, locked out employees will be entitled to receive benefits provided the employees are not otherwise disqualified from receiving benefits under another section of the Illinois Unemployment Compensation Act.

As amended, the law does impose some limits on the entitlement locked-out employees will have to benefits. Specifically, the law states that locked-out employees are not entitled to receive benefits for any week of the lockout during which (1) the union refuses to meet, under reasonable conditions, with the employer to discuss the issues that gave rise to the lockout; (2) the National Labor Relations Board determines that the union has refused to bargain in good faith over the issues that gave rise to the lockout; or (3) the lockout resulted as a direct consequence of the union’s violation of an existing collective bargaining agreement.

Under the Illinois Unemployment Insurance Act, an employer is required to contribute a specified percentage of its employees' salary into an Unemployment Insurance Fund for the payment of benefits. The amount that an employer must pay is determined by the employer's experience rating. The employer's experience rating is determined on the basis of the number of its employees that apply for and receive benefits. The new law is significant because it may increase the pool of employees that may be eligible to receive benefits under the Act. If locked-out employees are eligible for and receive benefits, the employer's experience rating may increase, resulting in additional costs to the employer. Thus, an employer considering a lock out of employees should be aware that such action may impact their experience rating. Employers can work to manage these costs by seeking to meet with the union in order to resolve any contract disputes or otherwise convince the NLRB that the union is not acting in good faith. Employers, however, will have to take a more active role in the lock out process based on this amendment.

(820 ILCS 405/601) (from Ch. 48, par. 431) Sec. 601. Voluntary leaving.

An individual shall be ineligible for benefits for the week in which he has left work voluntarily without good cause attributable to the employing unit and, thereafter, until he has become reemployed and has had earnings equal to or in excess of his current weekly benefit amount in each of four calendar weeks which are either for services in employment, or have been or will be reported pursuant to the provisions of the Federal Insurance Contributions Act by each employing unit for which such services are performed and which submits a statement certifying to that fact.

(820 ILCS 405/604) (from Ch. 48, par. 434) Sec. 604. Labor dispute.

An individual shall be ineligible for benefits for any week with respect to which it is found that his total or partial unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment, or other premises at which he is or was last employed. The term "labor dispute" does not include an individual's refusal to work because of his employer's failure to pay accrued earned wages within 10 working days from the date due, or to pay any other uncontested accrued obligation arising out of his employment within 10 working days from the date due.

For the purpose of disqualification under this Section the term "labor dispute" does not include a lockout by an employer, and no individual shall be denied benefits by reason of a lockout, provided that no individual shall be eligible for benefits during a lockout who is ineligible for benefits under another Section of this Act, and provided further that no individual locked out by an employer shall be eligible for benefits for any week during which (1) the recognized or certified collective bargaining representative of the locked out employees refuses to meet under reasonable conditions with the employer to discuss the issues giving rise to the lockout or (2) there is a final adjudication under the National Labor Relations Act that during the period of the lockout the recognized or certified collective bargaining representative of the locked‑out employees has refused to bargain in good faith with the employer over issues giving rise to the lockout, or (3) the lockout has resulted as a direct consequence of a violation by the recognized or certified collective bargaining representative of the locked out employees of the provisions of an existing collective bargaining agreement. An individual's total or partial unemployment resulting from any reduction in operations or reduction of force or layoff of employees by an employer made in the course of or in anticipation of collective bargaining negotiations between a labor organization and such employer, is not due to a stoppage of work which exists because of a labor dispute until the date of actual commencement of a strike or lockout.

This Section shall not apply if it is shown that (A) the individual is not participating in or financing or directly interested in the labor dispute which caused the stoppage of work and (B) he does not belong to a grade or class of workers of which immediately before the commencement of the stoppage there were members employed at the premises at which the stoppage occurs, any of whom are participating in or financing or directly interested in the dispute; provided, that a lockout by the employer or an individual's failure to cross a picket line at such factory, establishment, or other premises shall not, in itself, be deemed to be participation by him in the labor dispute. If in any case, separate branches of work which are commonly conducted as separate businesses in separate premises are conducted in separate departments of the same premises, each such department shall, for the purpose of this Section, be deemed to be a separate factory, establishment, or other premises.

Whenever any claim involves the provisions of this Section, the claims adjudicator referred to in Section 702 shall make a separate determination as to the eligibility or ineligibility of the claimant with respect to the provisions of this Section. This separate determination may be appealed to the Director in the manner prescribed by Section 800. (Source: P.A. 93‑1088, eff. 1‑1‑06.)

Blagojevich's Illinois Department of Employment Security: Appeal of Determination

Update: October 3, 2006

I talked to Ms. Efia Goosby, Illinois Department of Employment Security (IDES) Supervisor on October 2, 2006 requesting she recuse herself from judging my IDES Appeal. Ms. Goosby refuses to include the Illinois Department of Corrections in my appeal, even though I have persisted in requesting their inclusion because they locked me out from my employment, and that they are the "indirect employer" in this matter. I have also left a message with Ms. Goosby's supervisor Hilda Whittington.

I informed Ms. Goosby one of her line items for discussion in my pre-hearing of September 28, 2006 was "Whether the Administrative Law Judge, Efia Goosby, must disqualify herself from hearing this matter." Ms. Goosby informed me on October 2, 2006 that this issue will be discussed on October 12, 2006 at my "hearing." This is absurd.

STATE OF ILLINOIS
DEPARTMENT OF EMPLOYMENT SECURITY
LABOR DISPUTE DETERMINATION
U.I. PROGRAM SUPPORT DIVISION, LABOR DISPUTE SECTION
33 SOUTH STATE STREET, 9TH FLOOR
CHICAGO, ILLINOIS 60603

APPEAL OF DETERMINATION

I, Fred Nance Jr. (Nance), am an employee of Gateway Foundation (Gateway) working as a Counselor III at Sheridan Correctional Center (Sheridan), a subsidiary of the Illinois Department of Corrections (IDOC). On June 6, 2006 AFSCME (The Union) caused a strike at Sheridan. The Illinois Department of Corrections (IDOC) locked out some Gateway employees, which I am locked out from my employment at Sheridan. Subsequently, I filed for unemployment benefits under the Illinois Unemployment Insurance Act (The Act), Sections 601 and 604. I will address the following to support my eligibility for unemployment benefits.

The Illinois Department of Employment Security (IDES) has decided I am ineligible for unemployment benefits due to a stoppage of work pursuant to Section 604 of The Act. The Act reports, in part, “An individual shall be ineligible for benefits for any week with respect to which it is found that his total or partial unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment, or other premises at which he is or was last employed…For the purpose of disqualification under this Section the term “labor dispute” does not include a lockout by an employer, and no individual shall be denied benefits by reason of a lockout….” I am appealing the decision and/or determination of IDES issued on August 4, 2006.

FINDINGS OF FACT by IDES

1. The COMPANY (Gateway) is engaged in providing substance abuse counseling and treatment services. The COMPANY has a contract with the Illinois Department of Corrections (“IDOC”) to provide substance abuse counseling and treatment services to the inmates of the Sheridan Correctional Center (“SCC”), a facility controlled and operated by IDOC for incarcerating convicted felons.

2. The Union is the recognized collective bargaining representative of counselors employed by the COMPANY to provide substance abuse counseling and treatment services at SCC (“WORKERS”).

3. On June 6, 2006, when negotiations between the COMPANY and the UNION regarding the initial collective bargaining agreement between them ended in an impasse, the WORKERS ceased work and established picket lines at SCC.

4. Some of the workers attempted to cross the picket lines and enter SCC in order to work (“NON-PARTICIPATING WORKERS”), but were refused entry by IDOC. IDOC continues to refuse to let the NON-PARTICIPATING WORKERS into SCC. Some of the NON-PARTICIPATING WORKERS are not members of and do not support the UNION.

5. The COMPANY wants the NON-PARTICIPATING WORKERS to enter SCC and work, but can do nothing about the situation since IDOC has sole and complete authority over who is or is not allowed to enter SCC.

6. IDOC states it refuses to allow entry to SCC to the NON-PARTICIPATING WORKERS because various AFSCME bargaining units are the recognized collective bargaining representatives of correctional officers (i.e., security staff) and other IDOC employees at SCC, and therefore the safety and security at SCC could be disrupted if it allowed the NON-PARTICIPATING WORKERS into SCC in order to work before the differences between the UNION and the COMPANY is resolved.

NANCE’S ARGUMENT

IDES does not address the eligibility requirement of Section 601, therefore, Section 601 is satisfied for Nance. Also, number 2 of IDES’s “Findings of Fact” reports “The Union is the recognized collective bargaining representative of counselors employed by Gateway.” In a newspaper article, The Times, Ottawa, dated July 12, 2006, it reports “ Derek Schnapp, a spokesman for the Illinois Department of Corrections, said he could not discuss the case in detail, as it involves personnel. “All we can say is their case is under review, but they have not yet been cleared to enter the facility,” he said. And AFSCME spokesman Anders Lindall said his union would likely do nothing to help the workers, though Council 31 represents them as the official bargaining unit.” How can AFSCME be my bargaining unit, when their spokesman Anders Lindall reports they will not support or help the “Non-Participating Workers” of Gateway?

The next most compelling issue here in determining eligibility for Nance is Section 604’s “stoppage of work.” IDES reports “There was a stoppage of work because of a labor dispute between the Company (Gateway) and the Workers…”, supporting this statement suggesting the operations of Gateway are not substantially normal since it has not provided any substance abuse counseling and treatment services at Sheridan since The Union ceased work and established picket lines. First, this is not found in IDES’s “Findings of Fact.” Second, this statement supporting IDES’s determination is troubling. The legislature did not include substantially normal in the language of Section 604 to define or described stoppage of work. Also, Gateway has continued providing substance abuse and treatment services pursuant to their contractual agreement with the State of Illinois/IDOC.

In addition, IDES reports “Section 604 of the Illinois Unemployment Insurance Act provides that an individual shall be ineligible for benefits for any week with respect to which it is found that his total or partial unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment or other premises at which he is or was last employed. Case law establishes that for purposes of Section 604, a stoppage of work exists when an employer’s operations are not substantially normal.” Where is the case law cite? This is an arbitrary and biased statement if there is no case law leading to or from the quote of IDES. Additionally, if in the future IDES does provide case law to support this “substantially normal” statement, I should be afforded the right to challenge the “case law” with further research of that case law.

When speaking of their position in this matter, IDES reports on page 4 of their determination “The most straightforward answer requires a reading of Section 604 using the plain and ordinary meaning of the language it contains…Although there do not appear to be any controlling Illinois appellate court or Supreme Court cases….” This is contradictory to their statement of established case law for the language “substantially normal.”

The principles of statutory construction are well established, as the Illinois Supreme Court observed in Bridgestone/Firestone, Inc. v. Aldridge, 179 Ill. 2d 141 (1997): " 'It is a primary rule in the interpretation and construction of statutes that the intention of the legislature should be ascertained and given effect. This is to be done primarily from a consideration of the legislative language itself, which affords the best means of its exposition, and if the legislative intent can be ascertained there from it must prevail and will be given effect without resorting to other aids for construction. There is no rule of construction which authorizes a court to declare that the legislature did not mean what the plain language of the statute imports.’ " Bridgestone/Firestone, 179 Ill. 2d at 149, quoting Illinois Power Co. v. Mahin, 72 Ill. 2d 189, 194 (1978).

IDES does not define “substantially” normal, neither does Section 604. As a matter of “fact” The Act, specifically, Section 604 does use the words “substantially normal.” These words appear to be “created” by IDES. Nevertheless, substantially can be defined as consisting of or relating to substance, not imaginary or illusory, real, true, important, essential; ample to satisfy and nourish, full (a substantial meal); possessed of means (well-to-do), considerable in quantity, significantly great (as a substantial wage), firmly constructed, sturdy (a substantial house), and being largely but not wholly that which is specified (a substantial lie). This is a definition from Merriam-Webster Online, a reference used by IDES to define “due to.” Generally, an issue of this nature is defined by case law or legal reference, which, apparently, IDES does not have to support their claim of denial for a “stoppage of work.”

Gateway has been providing substance abuse counseling and treatment services before and after the strike. For the present argument, pursuant to IDES’s “Findings of Fact” Gateway has a contract with IDOC to provide substance abuse counseling and treatment services. Of course, there are more elements to Gateway’s contractual agreement with IDOC. Illinois Governor Blagojevich spokeswoman Rebecca Rausch reported to the media on Friday, August 4, 2006, that the labor dispute is between Gateway and its employees, so the governor would only step in if the organization's counseling services slipped at Sheridan. Ms. Rausch was quoted as saying “We are monitoring this situation very closely to make sure this vendor is meeting its contractual obligations,” Rausch said. If there was a “stoppage of work” the Governor’s office would have proclaimed it.

On July 26, 2006 the Chicago Tribune headlines “Strike not affecting prison, state says” report, “New inmates are coming in as normal,” said Derek Schnapp, a spokesman for the Illinois Department of Corrections. “It’s been the same business as usual.” In another article by the Chicago Tribune on July 26, 2006 headlined as “Prison Enduring 7th week of strike” it reports, “The Sheridan Correctional Center, one of the nation’s largest drug-treatment prisons, continues to function effectively despite the absence of about 40 striking drug counselors, state officials said Tuesday as the strike entered its seventh week.” Mr. Schnapp made the same statement written above for this article also.

In addition, the article “Prison enduring 7th week of strike” reports “Gateway President Michael Darcy said his company is caring for the prison’s roughly 850 inmates using 22 drug treatment specialist who were previously in supervisory positions and 14 counselors who have crossed the picket line. The people that have crossed the line and our clinical supervisors are able to produce at a higher productivity level than all the striking counselors put together,” Darcy said.”

In the Associated Press release of July 25, 2006 “Prison workers urged to reject union bid” it reports, “Lindall said drug programs for inmates have slipped during the walkout. But prison spokesman Derek Schnapp said Gateway is fulfilling its contract and the state is pleased with services that have been provided since the strike began.”

In addition, the State of Illinois conducted an audit to assure Gateway was in compliance with their contractual agreements. The Governor’s office continuously reports to the media Gateway is living up to its contractual agreements. Therefore, Gateway is “substantially” normal providing substance abuse counseling and treatment services at Sheridan defeating IDES’s claim of “stoppage of work.”

IDES’s heading Determination, states in part, “On the basis of information received, the claims adjudicator determines that the Workers (Gateway employees) in employment with the Company (Gateway) up to June 6, 2006, including the Non-Participating Workers, are ineligible for Unemployment Insurance Benefits under the terms and provisions of Section 604 of the Illinois Unemployment Insurance Act…for as long as their unemployment remains due to a stoppage of work caused by a labor dispute….” There is no stoppage of work by Gateway at Sheridan.

In addition, On August 9, 2006 Gateway called me reporting another counselor has crossed the picket lines and come to work. They report two other counselors have contacted them reporting they will cross the picket lines and come to work later this week or early next week.

If IDOC is allowing striking counselors (“Workers”) to cross the picket lines and go to work the striking “Workers” become “Non-Participating Workers, then the other “Non-Participating Workers” should be allowed to cross the picket lines and come to work. IDES discusses and defines "Workers" and "Non-Participating Workers" in their determination.

IDES's definition of a "Workers", in this matter, is one who works for Gateway at Sheridan; who organized and set up picket lines; and is participating in the strike. IDES's definition of "Non-Participating Workers" is one who works for Gateway and is not participating in the strike.

When the counselors mentioned here for August 9, 2006 cross the picket lines and go to work, they went from "Workers" to "Non-Participating Workers". IDOC is discriminating against Kathy, Lisa, and I. We should be allowed to cross the picket lines and go to work.

To repeat the IDES statement offered by IDOC: "IDOC states it refused to allow entry to Sheridan to the Non-Participating Workers because The Union has various bargaining units that are recognized collective bargaining representatives of correctional officers, i.e., security staff and other IDOC employees at Sheridan, and therefore the safety and security at Sheridan could be disrupted if it allowed the Non-Participating Workers into Sheridan in order to work before the differences between The Union and Gateway is resolved." With the information provided here, I think this just went out the window. IDOC is discriminating against the "original" “Non-Participating Workers” of Gateway.

Next IDES reports “Section 604 provides an exception to the ineligibility for benefits it imposes. Individuals are not ineligible for benefits under Section 604 if they: A) are not participating in, or financing, or directly interested in the labor dispute which caused the stoppage of work; and B) do not belong to the same grade or class of workers of which immediately before the commencement of the stoppage of work there were workers employed at the premises at which the stoppage of work occurs, any of whom are participating in, or financing, or directly interested in the labor dispute.

IDES conveniently leaves out the rest of B, which states, “provided, that a lockout by the employer or an individual’s failure to cross a picket line at such factory, establishment, or other premises shall not, in itself, be deemed to be participation by him in the labor dispute.”

IDES also takes this exception of Section of 604 and reverses it reporting it as positive requirements stating “The Non-Participating Workers are ineligible for benefits under either A or B even if they did not participate in the labor dispute or finance the labor dispute through union dues or other means. First, they clearly have a direct interest in the labor dispute since the terms and conditions of their jobs will be determined by whatever terms and conditions of the Company and Union ultimately agree to.” This is ludicrous.

IDES is putting the cart before the horse. The Non-Participating Workers have no direct interest at the time of filing for unemployment benefits or this appeal determination. IDES cannot predict the future. With this statement, IDES is involved with AFSCME in compulsory unionism.
In addition, IDES states, “Second, they just as clearly belong to a class of workers which immediately before the work stoppage contained members employed at Sheridan….” This is not true in my case. There is no counselor III striking. I am a counselor III. There are numerous civil rights cases, which define and clarify a class of workers. To satisfy the “similarly situated” prong of the prima facie case, an employee must be “directly comparable in all material respects.” Sartor v. Spherion Corp., 388 F.3d 275, 279 (7th Cir. 2004) Being a counselor III is certainly a material aspect of Section 604.

IDES attempts to survive their determination stating the Non-Participating Workers of Gateway are not locked out of Sheridan by their employer because IDOC is not their employer. IDES states in their “Findings of Fact” paragraph 1 “The COMPANY has a contract with the Illinois Department of Corrections (“IDOC”)….” IDOC is there employer!!!

IDES does not discuss the employment relationship as it applies to de facto and/or indirect employer. Gateway is contracted to provide services at Sheridan. This is a given. This contract is provided by IDOC, pursuant to IDES’s statement in their “Findings of Fact.”

Fundamentally in nature, the employer has locked us out of Sheridan. IDOC is not a “third-party” as IDES describes in their determination letter. IDES contradicts itself continuously. IDOC is the “de facto and/or indirect” employer, evidently, with the right to lockout who they please as stated by IDES in their “Findings of Fact” reports “…a facility controlled and operated by IDOC….” IDES presents no precedent law neither cites any legal language to support their position. IDES is clearly misinterpreting their policies promoting the agenda of AFSCME.

Nevertheless, IDES reports IDOC states it refused to allow entry to Sheridan to the Non-Participating Workers because The Union has various bargaining units that are recognized collective bargaining representatives of correctional officers, i.e., security staff and other IDOC employees at Sheridan, and therefore the safety and security at Sheridan could be disrupted if it allowed the Non-Participating Workers into Sheridan in order to work before the differences between The Union and Gateway is resolved.

In General Motors Corp. v. Bowling, 85 Ill. 2d 539, 542 (1981) this court rejected a claim that the members of a union representing the shop clerks at General Motors' plants in Chicago and LaGrange, Illinois, had a direct interest in a labor dispute between General Motors and the members…representing the production workers at the plants. The court recognized that certain parts of the production workers' agreement with General Motors would customarily be copied into the shop clerks' own agreement. The shop clerks, therefore, might anticipate that the strike by the production workers would influence their terms of employment. That, however, was at most an indirect interest. The court explained: "All they had was a hope, not any assurance. A mere expectancy without any legal right, subject to GM's views on the fairness and convenience of adopting parts of another agreement, does not disqualify the shop clerks for unemployment benefits." General Motors Corp., 85 Ill. 2d at 543. This is similar to IDOC’s claim of having a right to lockout Gateway employees because of the expectancy of other union members.

The Illinois Supreme Court in International Union of Operating Engineers, Local 148, AFL-CIO v. Illinios Department of Employment Security et al. (2004) discussed direct interest in a labor dispute under Section 604.

Citing section 604 of the Unemployment Insurance Act (820 ILCS 405/604 (West 1994)), the Department and CIPS maintain that the members of Engineers' Union were not eligible for unemployment compensation benefits because their unemployment was due to a stoppage of work resulting from a labor dispute. Conversely, Engineers' Union maintains that the relieving proviso of section 604 applies, and the members of Engineers' Union were eligible for unemployment compensation benefits.

This Supreme Court stated “Section 604 of the Act provides: "Labor dispute. An individual shall be ineligible for benefits for any week with respect to which it is found that his total or partial unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment, or other premises at which he is or was last employed. This Section shall not apply if it is shown that (A) the individual is not participating in or financing or directly interested in the labor dispute which caused the stoppage of work and (B) he does not belong to a grade or class of workers of which immediately before the commencement of the stoppage there were members employed at the premises at which the stoppage occurs, any of whom are participating in or financing or directly interested in the dispute; provided, that a lockout by the employer or an individual's failure to cross a picket line at such factory, establishment, or other premises shall not, in itself, be deemed to be participation by him in the labor dispute." 820 ILCS 405/604 (West 1994).”

This Supreme Court states, “Where the union has a mere expectancy in the outcome of another union's dispute, such as where the employer historically patterns its collective bargaining agreements with each of its unions after each other, our courts have not found a direct interest.” The court explained: "All they had was a hope, not any assurance. A mere expectancy without any legal right, subject to GM's views on the fairness and convenience of adopting parts of another agreement, does not disqualify the shop clerks for unemployment benefits." General Motors Corp., 85 Ill. 2d at 543.

To be eligible for unemployment insurance benefits under the relieving proviso of section 604, an employee must prove both that he is not directly interested in the labor dispute and that he is not of the same grade or class as employees who are participating in, financing or who hold a direct interest in the labor dispute.

IDES results in looking to the dictionary for definitions to legislative language. Definitions for legislative language are found in the legislature. When discussing stoppage of work with Ms. Cheryl Howard, she reports that supervisors and managers are replacing Non-Participating Workers doing their work, therefore, constituting a stoppage of work. I disagree.
I am a counselor III with Gateway. The Gateway Job Description for Counselor III reports, in part, “completes comprehensive assessments and treatment planning for caseload, and provides counseling services to clients. Develops and implements complex treatment and discharge plans for clients with dual diagnoses, social or mental health issues. Serves as professional resource to other Counselors in resolving complex case problems, and provides clinical supervision and guidance as needed. Develops and conducts in-service and continuing education programs for treatment staff; assumes responsibility for overseeing Counselors in absence of supervisor, and may assume responsibility for supervision of Counselors in absence of supervisor.”

Section 604 of the Act operates to disqualify an employee from receiving unemployment benefits when the employee is voluntarily unemployed because of a labor dispute at the place where he or she was last employed. Section 604 " 'evinces the legislative determination that the State is to remain neutral in labor disputes and collective bargaining, rendering assistance to neither the employer nor labor.' " Bridgestone/Firestone, 179 Ill. 2d at 156, quoting Local 7-641 v. Department of Labor, 96 Ill. 2d 94, 98 (1983). The plain language of section 604 requires an individuals’ unemployment be "due to a stoppage of work which exists because of a labor dispute." (Emphasis added.) 820 ILCS 405/604 (West 1992). Again, there is no stoppage of work.

Section 604, commonly referred to as the "labor dispute disqualification" section, provides in pertinent part: "Labor Dispute. An individual shall be ineligible for benefits for any week with respect to which it is found that his total or partial unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment, or other premises at which he is or was last employed." 820 ILCS 405/604 (West 1992).

The primary purpose of the Unemployment Act is to lessen the burden of unemployment upon unemployed workers. Wadlington v. Mindes, 45 Ill. 2d 447, 452 (1970), quoting Illinois Bell Telephone Co. v. Board of Review of the Department of Labor, 413 Ill. 37, 43 (1952) ("The primary purpose of the Illinois Unemployment Insurance Act is to relieve 'economic distress caused by involuntary unemployment' ").

IDES ends their report stating “Therefore, is their unemployment due to the work stoppage caused by the labor dispute at SCC (Sheridan)? If yes, they are disqualified from benefits under Section 604; if no, they are not disqualified.” IDES continues wondering if the stoppage of work is due to the labor dispute. As discussed earlier in this writing, there is no stoppage of work by Gateway at Sheridan, and therefore, the answer to IDES’s question is no and I am not disqualified from receiving unemployment benefits.

Conclusion

IDES wants us to believe there are no controlling Illinois appellate or Supreme Court cases. In paragraph 5 of IDES’s “Finding of Fact” it reports “…since IDOC has sole and complete authority over who is or is not allowed to enter SCC”; In paragraph 6 of IDES’s “Finding of Fact” it reports “IDOC states it refuses to allow entry to SCC to the Non-Participating Workers…”; and on page 3 of IDES’s report it states “…Section 604 provides that the term “labor dispute” does not include a lockout by an employer, and that no individual shall be denied benefits under Section 604 by reason of a lockout. Therefore, if the Non-Participating Workers had been denied access to SCC by the Company rather than IDOC, there would be clear justification for not finding them ineligible for benefits under Section 604 because they had been “locked out” of SCC by their employer.”

IDOC and Gateway, both entities, usefully could be deemed employers in such a situation as presented here. Gateway has contractual obligations with IDOC as stated in IDES’s “Findings of Fact”, where those contractual obligations are satisfied with IDOC at Sheridan. Therefore, IDOC/Sheridan is the “de facto or indirect” employer in this instance because they are exercising sole and complete authority and control over Gateway employees.

IDOC is the “De facto or Indirect” EMPLOYER. In addition, IDOC has discriminated against the Non-Participating Workers. There is a 'control test' to determine whether an entity is an 'employer'." Russo v. Ryerson, No. 01-CV-4458 2006 U.S. Dist. LEXIS 10447, at (D.N.J. Feb. 27, 2006) (citing Graves, supra, 117 F.3d at 723.2) Other circuits have followed suit. Ass'n of Mexican-American Educators, supra, 231 F.3d at 582-83; Mangram v. General Motors, 108 F.3d 61, 62-63 (4th Cir. 1997); E.E.O.C. v. Illinois, 69 F.3d 167, 169 (7th Cir. 1995).

The control test as it relates to a “de facto” employer "is appropriately used where it is clear that a putative (assumed) defendant does not directly employ the plaintiff, but nevertheless controls the plaintiff's employment to the point that it would contravene the intent of Title VII for the putative defendant to avoid liability for its own discriminatory actions." Kerr v. WGN Cont'l Broad. Co., 229 F. Supp. 2d 880, 886 (N.D. Ill. 2002); see e.g., Conroy v. City of Phila., 421 F. Supp. 2d 879 (E.D. Pa. 2006) (explaining how "City's ability to place its own requirements upon the hiring process," as well as "its control policy is to look to Title VII for guidance when interpreting provisions…and to federal precedent governing Title VII "'as a key source of interpretative authority.'" Pukowsky, supra, 312 N.J. Super. At 178 (quoting Lehmann, supra, 132 N.J. at 600-01).

Indirect liability results when the defendant employer "so far control[s] the plaintiff's employment relationship that it [is] appropriate to regard the defendant as the de facto or indirect employer of the plaintiff . . . ." E.E.O.C., supra, 69 F.3d at 169. In other words, "[d]e facto or indirect employer liability depends on the amount of the control a putative Title VII defendant exerts over the plaintiff's employment." Kerr, supra, 229 F. Supp. 2d at 886. It "addresses the situation where a formal employment relationship may be absent, but the putative defendant is so extensively involved with the plaintiff's day to day employment that the putative defendant is the 'real' employer for all intents and purposes, including Title VII liability." Ibid.; see E.E.O.C., supra, 69 F.3d at 171 (explaining how entities that "pull the strings in the background", and retain employment decision making power, are de facto employers pursuant to Title VII).

In Sibley Mem'l Hosp. v. Wilson, 488 F.2d 1338 (D.C. Cir. 1973) Control over access to the job market may reside, depending upon the circumstances of the case, in a labor organization, an employment agency, or an employer as defined in Title VII; and it would appear that Congress has determined to prohibit each of these from exerting any power it may have to foreclose, on invidious grounds, access by any individual to employment opportunities otherwise available to him. To permit a covered employer to exploit circumstances peculiarly affording it the capability of discriminatorily interfering with an individual's employment opportunities with another employer, while it could not do so with respect to employment in its own service, would be to condone continued use of the very criteria for employment that Congress has prohibited. [Id. at 1341.]

I have proven I deserve unemployment benefits pursuant to Section 604.

Respectfully submitted,

Fred L Nance Jr., ABD, MA, CADC, NCRS

cc: Honorable Rod R. Blagojevich, Governor of Illinois
Ms. Judith Boone, Investigator National Labor Relations Board
Mr. W. James Young, Staff Attorney-National Right To Work Legal Defense Foundation, Inc.
Mr. Gregg Dockins, Director Gateway/Sheridan
http://clickforjusticeandequality.blogspot.com/
C.L.I.C.K. for Justice and Equality

18 Supporting documents attached