dissenting:
The agreement between the Board of Trustees of the University of Illinois and Local 702, I.B.E.W., for the period July 1, 1969, to June 30, 1971, in respect to broadcasting engineers contains a provision at article VI, section 6, that “employees shall be credited with all time spent traveling to and from assignments after reporting for work.” The broadcasting facilities of the University were located at or nearby the Champaign-Urbana campus in Champaign County, Illinois, except for an isolated island of ground supporting a TV transmitter station some 30 miles away in Piatt County.
For some 18 years, petitioner was employed as a broadcasting engineer by the Board of Trustees and on February 1,1971, was second in senority at the Champaign County campus within the meaning of section 36i of the university civil service system act (Ill. Rev. Stat. 1973, ch. 24/2, par. 38b8). He was a resident of Champaign and during his 18 years of service at the broadcasting facilities regularly reported to the campus studios and performed his assigned work without any history of reprimand, suspension or other discipline. On February 1, 1971, by reason of being second in seniority, petitioner was allowed, for the second academic semester, to select a 6:30 a.m. to 2:30 p.m. shift. Another engineer with lesser seniority was assigned by the University for work at the campus studio for the same shift. Petitioner, however, was assigned to the Piatt County transmitter site. On February 1, he reported to the campus studio and asked for transportation to the transmitter station to perform his assigned duties. That request resulted in a 3-day suspension “for failure to do assigned work.” Traveling to Piatt County was apparently considered by terms of this notice as being “assigned work,” although the University proposed no compensation for same.
At the time of this suspension there was already pending an unresolved grievance executed by petitioner as a union official on behalf of another employee to determine whether traveling 300 miles per week from the campus to the transmitter, for the period of a full semester, was a part of the “work” of an employee for which he should be compensated and paid, including reimbursement for transportation, or whether the University, simply by designating that site as a station to which an employee should report for work, could require the employee to provide his own transportation on his own time, and thereby avoid the foregoing requirements of the Union contract at article VI, section 6.
At the expiration of his suspension on February 4,1971, petitioner again reported to the campus studio and in addition to offering to be taken to the transmitter to do his assigned work, offered also, as an alternative means of alleviating his personal predicament, to take earned vacation time whereby another engineer could be temporarily assigned there. The offer was made on the expressed expectation that the pending grievance would be resolved by the time of the expiration of his vacation. It is conceded that engineers temporarily assigned to the transmitter site were entided to transportation, and that such transportation was in fact furnished by the University to those traveling there during the interval from February 1 through February 4. Petitioner’s request for vacation was immediately rejected and notice of discharge was served, it being asserted by the University that “one offense” of not reporting directly to the Piatt County Station on two separate occasions, is “just cause” for discharge, according to Board rules made pursuant to statute.
We have held on a previous occasion that while interpretations given by an administrative agency to its own rules and regulations or to applicable statutes are entitled to respectful consideration, they are not, in the manner of properly supported findings of fact, conclusive in the courts in administrative review, and that any erroneous construction of any statute or regulation by an adminstrative agency is not binding. Heifner v. Board of Education, 32 Ill. App. 3d 83, 335 N.E.2d 600 (3d Dist. 1975).
The Act (Ill. Rev. Stat. 1973, ch. 24½, par. 38bl4) defines that “After completion of his probationary period, no employee shall be demoted, removed or discharged except for just cause * * In the same section, it is recited that “[i]f cause for demotion, removal or discharge is found, the employee shall be immediately separated from the service.” Demotion, removal or discharge are connected by the disjunctive “or” and refer to three distinct and separate alternatives. The phrase “separation from the service,” therefore, while it includes the concept of “termination of employment” is not synonymous with that phrase but expresses a broader meaning. A “demotion” necessarily implies a continuation of service in some different capacity and not a termination. Under the rule-makings powers of section 36d(10) (ch. 24/2, par. 38b3(10)), the meaning of the separate alternative of “removal” is made plain by the provision that the merit board may make and publish rules for “transfers and removals” in accordance with and to execute the provisions of section 361 (ch. 24½, par. 38b1l). There is no language in section 36d(10) (ch. 24½, par. 38b3(10)) which expressly purports to give the merit board the power to define “just cause” for discharge, and if such power is by any construction determined to be implicit, it would be validly exercised only to the extent that its rule on that subject conforms with judicial interpretations of the meaning of the statutory phrase “ just cause.”
The courts have defined “just cause” for discharge in the context of the statute under consideration as constituting some “substantial shortcoming which renders [an employee’s] continuance in office or employment in some way detrimental to discipline and efficiency of the service and something which the law and a sound public opinion recognize as a good cause for his not longer occupying the place.” (Emphasis added.) Tudor v. University Civil Service Merit Board, 131 Ill. App. 2d 907, 267 N.E.2d 341 (4th Dist. 1971).
The majority concludes that petitioner’s position as broadcast engineer at the transmitter site in Piatt County was critical to the efficiency of the campus broadcasting activities, and that his failure to report there directly on two separate occasions was detrimental to the University and cause for discharge. I believe, however, that for the acts to be “substantial shortcomings” within the meaning of the law, the detriment must also be substantial, and that it is a patent exaggeration to conclude or imply that petitioner’s acts in reporting to the studio rather than to the transmitter site constituted any substantial interference with respondent’s broadcasting activities. On all occasions, petitioner offered to execute his duties at the transmitter; the sole detriment involved was limited to the issue of transportation time and costs to the transmitter site for the limited period until a pending grievance should be resolved. Considering that the University did provide such transportation for petitioner’s replacement, and that the time within which the grievance was expected to be resolved was short, the detriment to the University was plainly trivial and not substantial.*
Moreover, to state, as the majority do, that petitioner’s acts were detrimental to the discipline and efficiency of the University’s broadcasting service, at most satisfied only a part of the legal test and falls short of meeting all the legal requirements for a discharge for “just cause” within the meaning of the statute. The acts complained of must also be conduct “which the law and sound public opinion recognize as good cause for his no longer occupying the position.” It is not merely the adverse effect upon the University that is relevant but the entire perspective in which the acts were performed. Acts performed by provocation or invitation or by simple misunderstanding or other unavoidable circumstance cannot be good cause. The perspective here, as all parties admit, shows the existence of a bona fide and peaceable labor dispute as to the meaning of article VI, section 6, of the contract.
The University on the occasions of February 1 and February 4, although it willingly provided such to his substitute, refused to furnish transportation to petitioner during the period of a pending grievance because in the words of its witness, such act might jeopardize its posture in the pending grievance. In assigning petitioner, notwithstanding his seniority, to the Piatt County station, at a time when he was prosecuting the grievance pertaining to that very subject, the University chose to create a circumstance which it knew or ought to have known would pose for petitioner a parallel concern for jeopardizing the union’s position. I am wholly unpersuaded on this record that either the law or sound public opinion would recognize the two separate acts of petitioner, first, in raising a bona fide question of law as to the meaning of the agreement, and second, in offering peaceably to take earned vacation time until the question should be resolved in a pending grievance, “as good cause for terminating petitioner’s employment.” Expanding upon the remarks of Justice Smith in Tudor, I would agree that the law and sound public opinion will accept that “repeated disregard of trivial regulations may change 000 mole hills to a mountain” and constitute a “substantial shortcoming” which provides “just cause for discharge.” I do not agree that “two instances of any conduct listed as a cause for suspension” is the automatic equivalent of that substantial “mountain.” The inquiry here is not confined to a review of the perfunctory question of whether Board definitions are met by the proof; we are required in the context of the entire record to examine also as to whether the asserted grounds for discharge satisfy all the requirements of justice. In my judgment the incidents complained of were inspired or manufactured by the University and petitioner’s response was invited. I would reverse the judgment affirming the Merit Board’s order of discharge, and order petitioner’s reinstatement.
A determination of the pending grievance was in fact determined on March 5, 1971.