IL Department of Central Management Services v. IL Labor Relations Board ( 2007 )

NO. 4-06-0083 Filed 5/2/07
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE STATE OF ILLINOIS, DEPARTMENT OF ) Direct Appeal from
CENTRAL MANAGEMENT SERVICES (DEPARTMENT ) Illinois Labor
OF CORRECTIONS), ) Relations Board,
Petitioner-Appellant, ) State Panel
v. )
THE STATE OF ILLINOIS, LABOR RELATIONS )
BOARD, STATE PANEL; JACKIE GALLAGHER, ) No. S-CA-03-002
MICHAEL HADE, CHARLES HERNANDEZ, REX ) S-CA-03-052
PIPER, and LETITIA TAYLOR, the Members ) S-CA-03-054
of Said Board and Panel in Their ) S-CA-03-056
Official Capacity Only; and THE ) S-CA-03-064
AMERICAN FEDERATION OF STATE, COUNTY ) S-CA-03-068
AND MUNICIPAL EMPLOYEES, COUNCIL 31, ) S-CA-03-090
Respondents-Appellees. ) S-CA-03-092
______________________________________________________________
JUSTICE COOK delivered the opinion of the court:
This case arises out of an impasse in negotiations
between petitioner, the State of Illinois Department of Central
Management Services (Department of Corrections) (hereinafter
CMS), and respondent American Federation of State, County, and
Municipal Employees, Council 31 (hereinafter AFSCME). The
negotiations involved the impact on security employees of CMS's
closure of several correctional facilities. AFSCME was the
exclusive representative of the employees at issue. Both parties
agree that the employees in question are "security employees" as
defined by the Illinois Public Labor Relations Act (Act) (5 ILCS
315/3(p) (West 2002)). Because security employees are afforded
access to certain dispute-resolution procedures under section 14
of the Act, both parties often refer to the security employees as
section 14 employees (5 ILCS 315/14 (West 2002)). This case
centers around the scope of section 14 dispute-resolution proce-
dures afforded to section 14 employees, specifically whether
section 14 authorizes "midterm interest arbitration," i.e.,
arbitration in the middle of a contract as opposed to its begin-
ning or end.
On December 21, 2005, respondent Illinois Labor Rela-
tions Board (Board) issued a decision and order finding that (1)
section 14 authorizes "interest arbitration" for disputes involv-
ing section 14 employees in "midterm" disputes and not merely in
"initial" or "successor" disputes; and (2) the collective-bar-
gaining agreement relevant to this case did not contain a waiver
of the statutory right to midterm interest arbitration for
security employees. In keeping with these findings, the Board
held that CMS violated sections 10(a)(1) and 10(a)(4) of the Act
when it refused to proceed to impasse resolution pursuant to
section 14 of the Act (5 ILCS 315/10(a)(1), (a)(4) (West 2002)).
The Board ordered CMS to cease and desist from refusing to
proceed to impasse resolution pursuant to section 14. The Board
did not allow immediate access to interest arbitration but
instead ordered the parties to design a process for the resolu-
tion of the dispute under section 14(p), with any disagreements
subject to the Board's compliance (5 ILCS 315/14(p) (West 2002)).
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CMS appeals the Board's findings. American Federation of State,
County, and Municipal Employees, Council 31, 22 Pub. Employee
Rep. (Ill.) par. 10, Nos. S-CA-03-002, S-CA-03-048, S-CA-03-052,
S-CA-03-054, S-CA-03-056, S-CA-03-064, S-CA-03-068, S-CA-03-090,
S-CA-03-092 (Illinois Labor Relations Board, State Panel, Decem-
ber 21, 2005) (hereinafter 22 Pub. Employee Rep. (Ill.) par. 10).
We affirm.
I. BACKGROUND
At all times relevant, a bargaining agreement between
CMS and AFSCME was in effect. The bargaining agreement was
extensive in nature and was part of a long-standing relationship
of bargaining agreements between the parties. The bargaining
agreement contained a general no-strike provision, which applied
to all employees, both section 14 security employees and nonsec-
tion 14 employees. In contrast, by statute, section 14 employees
are generally prohibited from striking and nonsection 14 employ-
ees generally have the right to strike. 5 ILCS 315/17 (West
2002) (general right-to-strike provision). As is required when a
bargaining agreement contains a no-strike clause, the bargaining
agreement also contained a grievance-arbitration provision, which
applied to all employees in the bargaining unit and provided for
final and binding arbitration of disputes concerning the adminis-
tration or interpretation of the bargaining agreement. See 5
ILCS 315/8 (West 2002) (bargaining agreements that contain no-
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strike clauses must also contain grievance-arbitration provi-
sions). The bargaining agreement also contained a memorandum of
understanding in its appendix, which provided that, within 60
days of the employer's announcement of a correctional-facility
closure, the parties "agree to negotiate over such matters that
may impact upon employees *** on questions of wages, hours[,] and
other conditions of employment." Accordingly, in 2002, CMS and
AFSCME entered into negotiations concerning the impact that the
closure of nine correctional facilities would have on security
employees.
The parties were unable to reach full agreement on
several points concerning the closure of the facilities. The
subjects on which the parties reached impasse included issues
relating to the filling of vacancies and transfer, recall, and
seniority rights of the affected employees. It appears that
these issues were not specifically covered by the bargaining
agreement. AFSCME requested that the parties enter into "inter-
est arbitration" to resolve the remaining issues. AFSCME thought
that it had a statutory right to interest arbitration under
section 14 of the Act, entitled "Security Employee, Peace Offi-
cer[,] and Fire Fighter Disputes," which delineates interest-
arbitration procedures of security employees (5 ILCS 315/14 (West
2002)). CMS refused to enter into interest arbitration, and
implemented its "final offer" as determined by the 2002 negotia-
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tions, including all the terms upon which the parties were unable
to agree.
In the July through October 2002 period, AFSCME filed
nine unfair-labor-practice charges against CMS, each alleging
that CMS violated sections 10(a)(1) and 10(a)(4) of the Act
because CMS refused to proceed to interest arbitration (5 ILCS
315/10(a)(1), (a)(4) (West 2002)). These sections state that an
employer commits unfair labor practice under the Act when it
restrains an employee's ability to exercise the rights guaranteed
by the Act (5 ILCS 315/10(a)(1) (West 2002)) and when it
"refuse[s] to bargain collectively in good faith with a labor
organization which is the exclusive representative of public
employees in an appropriate unit, including, but not limited to,
the discussing of grievances with the exclusive representative"
(5 ILCS 315/10(a)(4) (West 2002)). AFSCME's nine complaints were
ultimately consolidated into one. AFSCME withdrew No. 5-CA-03-
048. In June 2004, the case went before an administrative law
judge (ALJ), who found in favor of AFSCME. The ALJ ordered the
parties to proceed to "interest arbitration" under section 14.
American Federation of State, County, & Municipal Employees,
Council 31, 22 Pub. Employee Rep. (Ill.) par. 10, Nos. S-CA-03-
002, S-CA-03-052, S-CA-03-054, S-CA-03-056, S-CA-03-064, S-CA-03-
068, S-CA-03-090, S-CA-03-092 (Illinois Labor Relations Board,
State Panel, ALJ recommended decision and order, April 25, 2005).
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CMS filed exceptions, and the case then went before the
Board. Both parties stipulated that there was "no issue" as to
whether this dispute should be "deferred" to the grievance-
arbitration procedures contained in the bargaining agreement. By
this, we presume the parties meant that the existence of the
grievance-arbitration provision contained within the bargaining
agreement did not (1) require a finding that the current dispute
should be resolved through the contractual grievance-arbitration
procedures rather than the statutory procedures, or (2) preclude
the Board from addressing whether the Act also authorized midterm
interest arbitration. AFSCME stated in closing that the issue of
whether good-faith bargaining had occurred was a statutory issue
and was not to be determined by the contractual grievance-arbi-
tration procedures. CMS argued that AFSCME did not have a
statutory right to midterm interest arbitration because, accord-
ing to CMS's interpretation of the statute, section 14 gave
security employees the right to interest arbitration only for
disputes arising during the formation of "initial" or "successor"
contracts (i.e., comprehensive bargaining agreements), not for
"midterm" disputes (i.e., an ancillary dispute arising while the
bargaining agreement is still in effect) that were not the
subject of contract "reopeners" (i.e., where the parties agree to
"reopen" the agreement or designated part of the agreement). In
the alternative, CMS argued that AFSCME contractually waived any
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statutory right to midterm interest arbitration.
The Board found that the Act allowed for midterm
interest arbitration and declined to follow CMS's narrow inter-
pretation of section 14. Instead, the Board relied largely on
the general policy language in section 2 of the Act, which states
that all collective-bargaining disputes involving security
employees shall be submitted to impartial arbitrators (5 ILCS
315/2 (West 2002)). The Board also held that AFSCME did not
contractually waive its statutory right to access midterm inter-
est arbitration in this matter. The Board ordered CMS to desist
from "[r]efusing to proceed to impasse resolution, pursuant to
[s]ection 14 of the Act." 22 Pub. Employee Rep. (Ill.) par. 10,
at 28. The Board's decision differs slightly from that of the
ALJ because the ALJ ordered the parties to proceed to interest
arbitration. However, the Board stated that "[s]ection 14 of the
Act does not contemplate immediate access to interest arbitra-
tion, without some sort of mediation attempt, unless the parties
agree to such a process." 22 Pub. Employee Rep. (Ill.) par. 10,
at 29. Therefore, pursuant to section 14(p), the Board ordered
the parties to design a process for the resolution of this
dispute, with any disagreements subject to the Board's compliance
(5 ILCS 315/14(p) (West 2002)). Section 14(p) states that
"[n]otwithstanding the provisions of [section 14] the employer
and exclusive representative may agree to submit unresolved
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disputes concerning wages, hours, terms[,] and conditions of
employment to an alternative form of impasse resolution." 5 ILCS
315/14(p) (West 2002).
CMS filed a petition for judicial review of the Board's
decision, and a question exists as to whether said petition was
timely filed. The Board and AFSCME each filed separate appellate
briefs in support of the Board's decision. Additionally, the
American Federation of Labor and Congress of Industrial Organiza-
tions (AFL-CIO) and the Illinois Fraternal Order of Police Labor
Council (IFO-PLC) each filed separate amicus curiae briefs in
support of the Board's decision.
II. ANALYSIS
A. Timing
The Board argues that, as a threshold issue, this
appeal should be dismissed because CMS's petition for direct
review was not timely filed. Parties proceeding before an
administrative agency shall be barred from obtaining judicial
review of the agency's decision if review is not sought within
the time and in the manner provided by the statute. 735 ILCS
5/3-102 (West 2004); Rodriguez v. Sheriff's Merit Comm'n of Kane
County, 218 Ill. 2d 342, 349-50, 843 N.E.2d 379, 382-83 (2006).
Section 11(e) of the Act states that any direct appeal should be
filed within 35 days from the date that a copy of the decision
sought to be reviewed was served upon the parties. 5 ILCS
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315/11(e) (West 2002). Because the term "service" is not defined
by the Act, we must defer to section 3-113 of the Administrative
Review Law, which provides in relevant part:
"The method of service of the decision shall
be as provided in the Act governing the pro-
cedure before the administrative agency, but
if no method is provided, a decision shall be
deemed to have been served either when a copy
of the decision is personally delivered or
when a copy of the decision is deposited in
the United States mail ***." (Emphasis
added.) 735 ILCS 5/3-113 (West 2002).
Illinois precedent is clear that date of "service" means the date
that the decision was mailed, not the date it was received.
Rodriguez, 218 Ill. 2d at 351, 843 N.E.2d at 383.
Here, the Board issued its decision on December 21,
2005, and asserts that it mailed out its decision on the same
day. CMS received the decision on December 23, 2005. CMS filed
its petition on Friday, January 27, 2006, 37 days after the
decision was mailed, but only 35 days after the date the decision
was received.
CMS requests, however, that we find exception to the
definition of service contained in section 3-113 because the
Board's own regulations concerning the time limits set forth in
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the Act deem that "[s]ervice of a document upon a party by mail
shall be presumed complete three days after mailing, if proof of
service shows the document was properly addressed." 80 Ill. Adm.
Code §1200.30(c) (Conway Green CD-ROM June 2003); see also 145
Ill. 2d R. 12 (also declining to label date of service as the
date the document was mailed, stating that service by mail is
complete four days after mailing). Case law supports CMS's
request, and we agree.
Section 1200.30 was explicit in providing that its
provisions applied "in computing any period of time prescribed by
the Act." 80 Ill. Adm. Code §1200.30(a) (Conway Green CD-ROM
June 2003). The Board concedes that case law has found that an
administrative agency may, under its general authority to inter-
pret its governing statutes, define "service" as occurring
sometime after mailing, and that section 1200.30 was intended to
change the statutory service provisions of section 3-113 of the
Administrative Review Law. Moren v. Department of Human Rights,
338 Ill. App. 3d 906, 909, 790 N.E.2d 86, 88-89 (2003); Board of
Education of Plainfield Community Consolidated School District
No. 202 v. Illinois Educational Labor Relations Board, 143 Ill.
App. 3d 898, 903, 493 N.E.2d 1130, 1133-34 (1986) (Fourth Dis-
trict); Water Pipe Extension, Bureau of Engineering, Laborers
Local 1092 v. City of Chicago, 195 Ill. App. 3d 50, 56, 551
N.E.2d 1324, 1326 (1990).
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However, the Board contends that section 1200.30
applies only to in-Board proceedings, not to petitions for
judicial review, and therefore is not applicable to the instant
case. The Board argues that its 2004 amendment to the regula-
tions, which added section 1200.3 (80 Ill. Adm. Code §1200.3
(added by emergency rulemaking at 28 Ill. Reg. 7529, eff. May 12,
2004)), now prohibits section 1200.30's application to external
procedures, such as a petition for judicial review and that
Moren, School District 202, and Local 1092 no longer apply. We
disagree.
The amendment inserted a general policy statement,
section 1200.3, preceding section 1200.30. 80 Ill. Adm. Code
§1200.3 (added at 28 Ill. Reg. 15154, eff. November 1, 2004)).
The general policy statement provided:
"The regulations contained in this Part
detail the procedures that employers, employ-
ees[,] and labor organizations should use
when filing petitions pursuant to parts 1210
[representation proceedings], 1220 [unfair
labor charges,] and 1230 [impasse resolu-
tion], which implement the provisions of the
Illinois Public Labor Relations Act ***."
(Emphases added.) 80 Ill. Adm. Code §1200.3
(added at 28 Ill. Reg. 15154, 15160 (eff.
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November 1, 2004)).
The Board asserts that the regulations contained in this part
only apply to internal procedures following the amendment because
section 1200.3 refers only to petitions filed under sections
1210, 1220, and 1230, which are all, according to the Board,
internal procedures.
However, section 1200.30 is also contained in the
"Part" to which section 1200.3 refers. Moreover, section
1200.30, the specific regulation concerning timing of service,
remains unchanged and still explicitly states that the timing
provision applies "any period of time prescribed by the Act or
this Part." (Emphases added.) 80 Ill. Adm. Code §1200.30
(Conway Green CD-Rom June 2003). The timing of a petition for
judicial review is a "period of time prescribed by the Act." As
such, section 1200.30 should continue to apply to external
procedures as dictated by case-law precedent. As stated in
Moren, it would be "fundamentally unfair to penalize [the]
petitioner for relying on procedural rules promulgated by the
very agency from which [it] seeks judicial review." Moren, 338
Ill. App. 3d at 910, 790 N.E.2d at 89.
B. Standard of Review
The Board concedes that this court should apply a de
novo standard of review in evaluating the Board's determination
that the Act authorized midterm interest arbitration. See Wilson
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v. Department of Professional Regulation, 344 Ill. App. 3d 897,
907, 801 N.E.2d 36, 44 (2003) (de novo review of an administra-
tive agency's decision is limited to matters involving statutory
interpretation). However, the Board argues, and we agree, that,
to the extent that there are any ambiguities, this court should
give deference to the administrative agency's interpretation of
the Act it was created to enforce. County of Will v. Illinois
State Labor Relations Board, 219 Ill. App. 3d 183, 185, 580
N.E.2d 884, 885 (1991), citing City of Decatur v. American
Federation of State, County, & Municipal Employees Local 268, 122
Ill. 2d 353, 361, 522 N.E.2d 1219, 1222 (1988). It is reasonable
to defer to an agency's interpretation of its enabling statute
because the agency presumably makes informed decisions based on
its experience and expertise. County of Will, 219 Ill. App. 3d
at 185, 580 N.E.2d at 885. Other courts have characterized this
form of deference to the agency's interpretation as "relevant but
not binding," stressing that de novo review still applies.
Branson v. Department of Revenue, 168 Ill. 2d 247, 254, 659
N.E.2d 961, 965 (1995).
The issue of waiver turns on an application of the
relevant law to the particular facts of the case. Specifically,
we must ask whether the language in the bargaining agreement
meets the "clear and unmistakable" standard for a party to a
labor agreement's waiver of a statutory right. See American
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Federation of State, County & Municipal Employees v. Illinois
State Labor Relations Board, 274 Ill. App. 3d 327, 334, 653
N.E.2d 1357, 1362 (1995) (regarding "clear and unmistakable"
standard). Where the Board's determination is best considered a
mixed question of law and fact, the "clearly erroneous" standard
of review is appropriate. City of Belvidere v. Illinois State
Labor Relations Board, 181 Ill. 2d 191, 205, 692 N.E.2d 295, 302
(1998).
C. Statutory Right to Interest Arbitration
The crux of CMS's argument on appeal is that the plain
language of section 14, entitled "Security Employee, Peace
Officer[,] and Fire Fighter Disputes," simply does not grant
security employees the statutory right to the interest arbitra-
tion in order to resolve midterm interest disputes. Before we go
any further in discussing CMS's argument, we clarify that the
Board did not hold that section 14 guaranteed security employees
a right to immediate access to interest arbitration. Rather, the
Board held that section 14 authorizes midterm interest arbitra-
tion for security employees.
In applying provisions of a statute, our primary goal
is to ascertain and give effect to the intent of the legislature,
and the language of the statute itself is the best indicator of
the legislature's intent. See Price v. Philip Morris, Inc., 219
Ill. 2d 182, 242, 848 N.E.2d 1, 37 (2005). CMS contends that
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section 14's specific reference to initial and successor con-
tracts without referencing midterm disputes means that section 14
does not cover midterm disputes. The portions of section 14 to
which CMS points in support of its argument state:
"(a) In the case of collective[-]bargaining
agreements involving units of security em-
ployees of a public employer, *** and in the
case of disputes under [s]ection 18, unless
the parties mutually agree to some other time
limit, mediation shall commence 30 days prior
to the expiration date of such agreement ***.
In the case of negotiations for an initial
collective[-]bargaining agreement, mediation
shall commence upon 15 days notice from
either party ***. If any dispute has not
been resolved within 15 days after the first
meeting of the parties and the mediator, or
within some other time limit as may be
mutually agreed upon by the parties, either
[party] may request *** arbitration, and shall
submit a copy of the request to the Board."
(Emphases added.) 5 ILCS 315/14(a) (West
2002).
And:
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"(h) Where there is no agreement between
the parties, or where there is an agreement
but the parties have begun negotiations ***
looking into a new agreement or amendment
of the existing agreement, and the wage rates
or other conditions of employment under the
proposed new or amended agreement are in dis-
pute, the arbitration panel shall base its
findings, opinions and order upon the follow-
ing factors, as applicable: ***." (Emphasis
added.) 5 ILCS 315/14(h) (West 2002)
("agreement" means a collective-bargaining
agreement, not a settlement of terms).
(Also, it appears to be CMS's position that the term "amended
agreement" refers to a "reopened" contract term, and not a
midterm dispute.) Contrary to CMS's assertion, the plain lan-
guage of section 14 does not omit all references to midterm
disputes. Though section 14's references to midterm disputes are
not as obvious as its references to initial and successor con-
tracts or even to contract "reopeners," they are subtly present.
For example, subsection 14(a) specifies that the dispute-resolu-
tion procedures delineated in section 14 (i.e., including inter-
est arbitration) are available to section 18 disputes. 5 ILCS
315/14(a) (West 2002) ("In the case of collective[-]bargaining
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[disputes] involving *** security employees *** and in the case
of disputes under [s]ection 18"). Section 18 authorizes the
courts to relegate employees who have the right to strike to
resolve their disputes under section 14 procedure when the act of
striking might present a clear and present danger to the public.
5 ILCS 315/18 (West 2002). Because there is no statutory dis-
tinction between an employee's right to strike midterm and an
employee's right to strike in support of its position regarding
an initial or successor contract, section 14 authorizes the use
of its procedures to employees who are potentially involved in a
midterm dispute.
CMS supplements its "plain-language" argument with the
contention that the interest-arbitration timetables set forth in
section 14 are unworkable for resolution of midterm disputes.
CMS notes that it could take over 170 days to resolve an ancil-
lary issue, during which time the employer would be prohibited
from changing any existing wages, hours, or other conditions of
employment during the pendency of the arbitration proceeding. 5
ILCS 315/14(l) (West 2002). This argument is ultimately uncon-
vincing. The timetable set forth in section 14 is directory, not
mandatory. See City of Seattle, Wash. Public Employment Rela-
tions Comm'n Decision, No. 1667-A (February 28, 1984) (recogniz-
ing the directory/mandatory distinction), available at
http://www.perc.wa.gov/databases/ulp/1677-a.htm (last visited
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April 13, 2007). In fact, the Act specifically states that the
parties may mutually agree to "some other time limit." 5 ILCS
315/14(a) (West 2002). Also, it is important to remember that
the Board's actual order in this case required the parties to
design their own process for the resolution of the dispute, with
any disagreements subject to the Board's compliance process. 5
ILCS 315/14(p) (West 2002). Hence, the parties here were not
bound by particular statutory time constraints.
State of Connecticut Office of Labor Relations v.
Connecticut State Employees Ass'n, Connecticut State Board of
Labor Relations Decision No. 2860 (October 30, 1990), which CMS
cites, most plainly illustrates CMS's argument that the specific
provisions of section 14 preclude midterm interest arbitration.
The Connecticut labor board held that because the arbitration
provision at issue specifically referenced initial and successor
contracts, as well as contract "reopeners," but did not reference
midterm disputes, the arbitration provision could not be inter-
preted to cover midterm disputes. Connecticut, slip order at 6.
Interestingly, shortly after the board came out with its decision
in Connecticut, the Connecticut legislature added a clause to the
arbitration provision that expressly provided for midterm inter-
est arbitration. See Conn. Pub. Act 91-290, eff. October 1, 1991
(adding section 5-276a(c) to the statute (see Conn. Gen. Stat.
§5-276a(c) (1998)); State of Connecticut v. Connecticut Employees
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Union Independent, Inc., No. CV93-0704068 (October 22, 1993)
(unreported decision by Connecticut Superior Court judge implic-
itly affirming the board's determination that section 5-276a(c)
applied to certain midterm bargaining negotiations) (1993 Conn.
Super. LEXIS 2726). Additionally, we note that the labor board
in Connecticut failed to consider policy arguments that the
instant Act, as will be discussed below, requires us to consider.
Most basically, the Connecticut board did not consider the
specific arbitration provision in conjunction with a more general
policy clause.
Looking to the language of section 14 is not enough;
this court must evaluate the statute as a whole and, if possible,
construe it so that no term is rendered superfluous or meaning-
less. Texaco-Cities Service Pipeline Co. v. McGaw, 182 Ill. 2d
262, 270, 695 N.E.2d 481, 485 (1998). Section 2 of the Act,
entitled "Policy," also makes specific reference as to how
disputes involving security employees are to be resolved:
"[A]ll collective[-]bargaining disputes in-
volving persons *** defined herein as secu-
rity employees shall be submitted to impar-
tial arbitrators, who shall be authorized to
issue awards in order to resolve such dis-
putes. It is the public policy of the State
of Illinois that where the right of employees
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to strike is prohibited by law, it is neces-
sary to afford an alternate, expeditious,
equitable[,] and effective procedure for the
resolution of labor disputes subject to ap-
proval procedures mandated by this Act. To
that end, the provisions for such awards
shall be liberally construed." (Emphases
added.) 5 ILCS 315/2 (West 2002).
CMS argues that the general policy provisions of
section 2, indicating that "all" collective-bargaining disputes
should be resolved through arbitration, is in conflict with the
more specific provisions of section 14. When interpreting
legislative intent, specific provisions control over the more
general provisions. Knolls Condominium Ass'n v. Harms, 202 Ill.
2d 450, 459, 781 N.E.2d 261, 267 (2002). However, the statutes
should be construed in harmony with each other if at all possible
so that no provisions are rendered inoperative. Knolls, 202 Ill.
2d at 458-59, 781 N.E.2d at 267.
The key to harmonizing the two sections is that section
2 mandates "alternate, expeditious, equitable[,] and effective
procedure" for labor disputes where the employees who are prohib-
ited from striking "by law." (Emphasis added.) 5 ILCS 315/2
(West 2002). The phrase "alternate, expeditious, equitable[,]
and effective" is a statutorily mandated right. Section 2 makes
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clear the legislature's intent that the statutory dispute-resolu-
tion rights of employees who do not have the statutory right to
strike be commensurate with the right to strike.
In reaching impasse in a typical negotiation, an
employer has the right to unilaterally implement its final offer
and an employee has the right to strike in support of its bar-
gaining demands. Local Union No. 47 v. National Labor Relations
Board, 927 F.2d 635, 640 (D.C. Cir. 1991); Hydrologics, Inc., 293
N.L.R.B. 1060, 1062 n.13, 131 L.R.R.M. (BNA) 1350, 1353 n.10, citing
Speedrack, Inc., 293 N.L.R.B. 1054, 1055-56, 131 L.R.R.M. (BNA) 1347
(1989). Providing each party with an economic weapon puts the
parties on more equal footing. Local Union No. 47, 927 F.2d at
643, citing National Labor Relations Board v. Lion Oil Co., 352
U.S. 282, 290-91, 1 L. Ed. 2d 331, 338-39, 77 S. Ct. 330, 335
(1957). However, employees who do not have the statutory right
to strike, such as the security employees in the instant case,
would not be on equal footing with the employer were the employer
to implement its final offer upon reaching impasse. Such a
result is not in line with the plain language of section 2, which
states that it is necessary to provide employees who are statuto-
rily prohibited from striking with an alternate and equitable
means of resolving their disputes. The Act itself grants a
general right to strike to non-section 14 employees and makes no
distinction as to whether that right applies only to initial-
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successor disputes or whether that right applies to midterm
disputes. See 5 ILCS 315/17 (West 2002) (granting nonsection 14
employees a general right to strike). As such, the statutory
dispute-resolution procedures of section 14, the only section
detailing dispute-resolution procedures for section 14 employees,
must cover midterm disputes as well as initial-successor disputes
if said dispute-resolution procedures are to be alternate and
equitable to the right to strike. See Seattle, Wash. Public
Employment Relations Comm'n Decision No. 1667-A (using similar
reasoning to determine that despite the statute's specific
reference to initial and successor contracts only, the union was
entitled to interest arbitration under the statute, if necessary,
to resolve a midterm dispute upon reaching impasse in bargain-
ing). As stated by the commission in Seattle, "[t]he balance of
power would be tipped in favor of the employer by the [statutory
provisions prohibiting striking], which clearly preclude the
alternative of economic action [that] would have been available
to [those employees with the right to strike]." Seattle, Wash.
Public Employment Relations Comm'n Decision No. 1667-A (1984),
slip order at 4. We will hereinafter call the argument that
section 2 favors a statutory right to midterm interest arbitra-
tion in exchange for a statutory right to strike as the "right to
strike" argument.
The only other case to consider the "right to strike"
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argument, Dane County, Wis. Employment Relations Comm'n Decision
No. 17400 (November 2, 1979), affm'd sub nom. Dane County Special
Education Ass'n v. Wisconsin Employment Relations Comm'n, No. 80-
CV-0097 (Wis. Cir. Ct. of Dane County, June 9, 1980), is distin-
guishable. The Dane County labor board found the "right to
strike" policy argument (slip order at 9) "compelling," (slip
order at 11) but stated that it would not even consider the
policy argument where it found the statutory language to be clear
(slip order at 11-12). The interest-arbitration provision in
Dane County, as in the instant case, made express reference to
initial and successor contracts only (slip order at 11).
However, the statutory language in Dane County more
specifically excluded midterm interest arbitration. The Dane
County statute contained parallel provisions, one concerning
fact-finding procedures and one concerning interest-arbitration
procedures. The fact-finding language encompassed midterm
disputes and the interest-arbitration procedure did not mention
midterm disputes. The Wisconsin labor board reasoned that where
a section of a statute contains a particular provision, omission
of the same provision in a similar section is significant to show
different legislative intent for the two sections. Dane County,
slip order at 11-12; see also for example, Hamilton v. Conley,
356 Ill. App. 3d 1048, 1056, 827 N.E.2d 949, 957 (2005). The
instant statute contains no such parallel provisions.
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Even more important, Dane County is not persuasive
because, unlike the general policy statement in Dane County,
which also promoted the peaceful resolution of labor disputes,
the policy statement in the present case makes express reference
to the potential imbalance between employees who do not have the
right to strike and the employers with whom they are negotiating,
stating that it is "necessary" to afford security employees
access to an economic bargaining weapon that is qualitatively
similar to the right to strike. See 5 ILCS 315/2 (West 2002).
This express language is indication enough that we, unlike the
Board in Dane County, must consider the "compelling" "right to
strike" policy argument.
CMS argues that the "right-to-strike" argument must
fail here because finding that section 14 employees have a
statutory right to midterm interest arbitration would afford
section 14 employees greater rights than their nonsection 14
counterparts in this case. This is a result that CMS deems
contrary to the policy statement contained within section 2,
mandating that section 14 employees receive alternate and equita-
ble procedure for dispute resolution. A careful reading of
section 2, however, shows that section 2 states that the statu-
tory dispute-resolution rights to be granted to security employ-
ees are to be alternate to the right to strike itself, not
necessarily alternate to the rights afforded to other employees.
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See 5 ILCS 315/2 (West 2002). As discussed in Local Union No.
47, the rationale behind the right to strike is to put employees
on equal footing with employers, and it is therefore logical to
infer that any statutory alternative to the right to strike is
also meant to facilitate good-faith negotiations between employ-
ers and employees. Local Union No. 47, 927 F.2d 635, 642-43.
We nevertheless address CMS's argument that allowing
security employees midterm interest arbitration under the Act
would improperly give security employees greater rights than non-
section 14 employees. CMS notes that the bargaining agreement
relevant here contains a general no-strike provision that is
applicable to all employees, both security employees that are
statutorily prohibited from striking and nonsection 14 employees.
CMS seems to imply that, in this case, nonsection 14 employees
are also statutorily prohibited from striking. See 5 ILCS 315/17
(West 2002). Section 17, entitled "Right to Strike," states that
nonsection 14 employees generally have a statutory right to
strike so long as the existing bargaining agreement does not
prohibit the strike and so long as the existing bargaining
agreement does not contain a final and binding arbitration
provision. 5 ILCS 315/17 (West 2002). Admittedly, the bargain-
ing agreement here contains both a no-strike clause and a
grievance-arbitration provision. As such, CMS argues that
finding security employees have the right to midterm interest
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arbitration in certain situations, while simultaneously finding
that nonsection 14 employees do not have the right to strike,
affords security employees greater rights than nonsection 14
employees.
However, whether the nonsection 14 employees covered by
the bargaining agreement may be statutorily prohibited from
striking in this case is of no import. As will be discussed
further in the waiver section of this analysis, the no-strike
contractual clause was not statutorily mandated. See 5 ILCS
315/8 (West 2002) (stating the parties have an option, upon
mutual agreement, to forgo a no-strike clause in the bargaining
agreement). The fact that security employees maintain a statu-
tory right to access midterm interest arbitration while nonsec-
tion 14 employees lose the statutory right to strike that
prompted the legislature to give security employees the right to
interest arbitration in the first place results from the inter-
play between section 17 of the statute and the unique terms of
the particular contract at issue here. This interplay between
statute and a specific contract should not negate a general
statutory right; rather, said interplay between contract and
statute is a question more appropriate for a waiver analysis.
D. Waiver of Statutory Right to Interest Arbitration
CMS next contends that even if section 14 security
employees have the statutory right to demand midterm interest
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arbitration, then the security employees have waived those rights
in the bargaining agreement. The contractual waiver of a statu-
tory right in a labor agreement must be "clear and unmistakable."
American, 274 Ill. App. 3d at 334, 653 N.E.2d at 1362. The
language of the contract must evince an "unequivocal intent" to
relinquish the relevant statutory right; waiver is never presumed
and the language sustaining the waiver must be specific. Ameri-
can, 274 Ill. App. 3d at 334, 653 N.E.2d at 1362. In support of
its waiver argument, CMS points to the bargaining agreement's no-
strike clause and its facilities-closure clause.
As stated above, the bargaining agreement contained a
no-strike clause, which prohibited all employees, both section 14
and nonsection 14, from striking. As a statutorily mandated
tradeoff to the no-strike clause, the bargaining agreement also
contained a grievance-arbitration provision. See 5 ILCS 315/8
(West 2002). Section 8 of the Act states that, unless mutually
agreed otherwise, the bargaining agreement shall contain a
grievance resolution procedure that shall apply to all employees
in the bargaining unit and shall provide for final and binding
arbitration of disputes concerning the administration or inter-
pretation of the bargaining agreement. Section 8 also provides
that whenever a bargaining agreement contains a final and binding
arbitration provision, it shall also contain a provision prohib-
iting strikes for the duration of the agreement. 5 ILCS 315/8
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(West 2002); City of Decatur, 5 Pub. Employee Rep. (Ill.) par
2008, No. S-CA-88-92, at X-87 (Illinois State Labor Relations
Board 1989). The rationale behind this tradeoff is to ensure
that negotiations proceed in good faith by keeping the parties on
even footing in the face of impasse. In other words, where the
contract takes away a party's right to strike in support of its
bargaining position, the contract also provides that party with
an alternative means of resolution, preventing the employer from
unilaterally implementing its final offer before utilizing
mediation and arbitration procedures.
Contrary to CMS's assertion, the coterminous no-strike
clause and grievance-arbitration clause do not require this court
to find that the security employees have waived their statutory
right to interest arbitration, nor do they require that this
issue be resolved through contractually authorized grievance-
arbitration procedures. Such a result would only be tenable if a
security employee's statutory right to interest arbitration was
somehow inversely dependent upon a nonsection 14 employee's
contractual waiver of the statutory right to strike. We have
already held this is not the case. The mere fact that there was
a relationship between the legislature's intent in enacting two
different statutory rights (here the right to interest arbitra-
tion and the right to strike), for two different groups of
employees (here security employees and nonsection 14 employees),
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does not mean that one group's contractual waiver of its respec-
tive statutory right results in the other group's contractual
waiver of its statutory right. The fact that nonsection 14
employees have given up their right to strike in exchange for
grievance-arbitration procedures does not mean that security
employees have waived their statutory right to interest arbitra-
tion.
The bargaining agreement also contained a facilities-
closure clause, contained in a memorandum of understanding in the
bargaining agreement's appendix, which stated as follows:
"It is understood by the parties that within
sixty (60) days of the [e]mployer's announce-
ment of the closure or conversion of a facil-
ity ***, the parties agree to negotiate over
such matters that may impact upon employees
covered by this agreement on questions of
wages, hours[,] and other conditions of em-
ployment." (Emphasis added.)
According to CMS, the significance of this clause is that it
gives the state a right to close a facility and obligates CMS to
bargain over the impact of such closures but is silent as to how
the parties would resolve impact bargaining if a voluntary
agreement was not reached. CMS notes that, as evidenced by
article XXXIV, section 4, in the bargaining agreement, entitled
- 29 -
"Waiver," AFSCME had unlimited right and opportunity to make
demands and proposals on any subject of collective bargaining.
One of those demands and proposals was the memorandum of under-
standing concerning facility closures quoted above. CMS notes
that AFSCME had the opportunity to reference statutory interest
arbitration in that memorandum and it did not. CMS argues that
by agreeing to impact bargaining on facility closures, without
more, the parties have agreed to apply the normal procedures with
respect to impact bargaining--that when the parties reach im-
passe, the employer may unilaterally implement its final offer.
CMS argues that because the collective-bargaining agreement did
not specifically include a clause stating that the parties had a
right to go to interest arbitration under the statute, the
dispute could only be covered under the jurisdiction of the
contract's grievance-arbitration procedure.
There are three problems with this argument. First,
there is no rule that a party has to affirmatively name a statu-
tory right in a contract in order to preserve that statutory
right. See American, 274 Ill. App. 3d at 334, 653 N.E.2d at
1362. Second, CMS's two conclusions, that CMS has a right to
implement its final offer upon reaching impasse and that the
dispute at issue here could only be covered under the contract's
grievance-arbitration procedure, are inconsistent with one
another. The contractual grievance-arbitration procedure does
- 30 -
not provide for implementation of a final offer upon impasse.
Rather the grievance-arbitration procedure dictates that parties
resolve disputes through the lowest level of grievance procedure
possible, advancing up "steps" of grievance procedure upon
failing to come to a resolution, ultimately allowing for binding
arbitration procedures if the parties complete the requisite
steps. Third, while the dispute at issue may very well have been
resolved under the contractual grievance-arbitration procedures,
the parties in this case have stipulated that there was no issue
of deferral to the grievance-arbitration procedures. In Spokane
County, No. 12105-U-95-2853 Wash. Public Employment Relations
Comm'n Decision No. 5698 (October 9, 1996) (deferral does not
mean loss or surrender of jurisdiction) (1996 WL 686780, at *5),
the Commission stated that even where a dispute involving unilat-
eral change is arguably covered by the grievance-arbitration
procedure in the existing bargaining agreement, and therefore may
be most rightfully be deferred to the grievance-arbitration
procedures, a commission still has jurisdiction over such mat-
ters.
Even if CMS's argument were meritorious as to an
implicit waiver of the statutory right to interest arbitration,
CMS is still unable to meet the applicable waiver standard in
Illinois. The employees at issue here have not "clearly and
unmistakably" waived their right to interest arbitration. As
- 31 -
stated by the Board, the no-strike clause does not even reference
interest arbitration, let alone a waiver of interest arbitration.
Nothing in the bargaining agreement explicitly states that
section 14 employees, or any employees for that matter, waive
their statutory right to interest arbitration.
Accordingly, the security employees have not contractu-
ally waived their statutory right to access midterm interest-
arbitration procedures authorized by the Act.
III. CONCLUSION
For the aforementioned reasons, we affirm the Board's
decision and order.
Affirmed.
KNECHT and TURNER, JJ., concur.
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