State v. State

NOS. 4-05-0276, 4-05-0277 cons. Filed: 4/12/06
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE STATE OF ILLINOIS, DEPARTMENT OF ) Direct Review of the
CENTRAL MANAGEMENT SERVICES (DEPART- ) Illinois Labor Rela-
MENT OF CORRECTIONS) ) tions Board, State
Petitioner-Appellant, ) Panel
v. (No. 4-05-0276) ) No. S-UC-S-04-038
THE STATE OF ILLINOIS, ILLINOIS LABOR )
RELATIONS BOARD, STATE PANEL; JACKIE )
GALLAGHER, MICHAEL HADE, CHARLES )
HERNANDEZ, REX PIPER, and LETITIA )
TAYLOR, the Members of Said Board and )
Panel in Their Official Capacity )
Only; THE AMERICAN FEDERATION OF )
STATE, COUNTY AND MUNICIPAL )
EMPLOYEES, COUNCIL 31; and DAVID R. )
SUAREZ, )
Respondents-Appellees. )
------------------------------------- )
- ) No. S-UC-S-05-002
)
THE STATE OF ILLINOIS, DEPARTMENT OF )
CENTRAL MANAGEMENT SERVICES (DEPART- )
MENT OF CORRECTIONS), )
Petitioner-Appellant, )
v. (No. 4-05-0277) )
THE STATE OF ILLINOIS, ILLINOIS LABOR )
RELATIONS BOARD, STATE PANEL; JACKIE )
GALLAGHER, MICHAEL HADE, CHARLES )
HERNANDEZ, REX PIPER, and LETITIA )
TAYLOR, the Members of Said Board and )
Panel in Their Official Capacity )
Only; THE AMERICAN FEDERATION OF )
STATE, COUNTY AND MUNICIPAL )
EMPLOYEES, COUNCIL 31; JENNIFER )
RONZONE; KAREN DOWNEY; and SHARI
MOOS-MCBRIDE,
Respondents-Appellees.
_________________________________________________________________
JUSTICE STEIGMANN delivered the opinion of the court:
In February 2005, the Illinois Labor Relations Board,
State Panel (Board), dismissed the jointly stipulated bargaining-
unit-clarification petitions of the Illinois Department of
Central Management Services (CMS) and the American Federation of
State, County, and Municipal Employees (AFSCME), which sought to
exclude (1) David Suarez from the office of collective bargaining
(OCB) RC-063 bargaining unit (case No. 4-05-0276) and (2)
Jennifer Ronzone, Karen Downey, and Sharin Moos-McBride from the
OCB RC-028 bargaining unit (case No. 4-05-0277).
CMS appeals, arguing that the Board erred by dismissing
the clarification petitions in both cases. We have consolidated
these cases for purposes of this appeal. We reverse and remand.
I. BACKGROUND
A. Case No. 4-05-0276
In March 2004, CMS and AFSCME filed a stipulated
bargaining-unit-clarification petition with the Board, seeking to
exclude David Suarez, an information systems analyst II, from the
OCB RC-063 bargaining unit on the ground that Suarez was a
"confidential employee." In April 2004, Suarez filed an objec-
tion to the clarification petition with the Board, arguing that
(1) his position had been represented by the OCB RC-063 bargain-
ing unit since its January 2001 creation; (2) his previous
position, information systems analyst I, was covered by the same
bargaining unit; and (3) the petition was motivated by "political
retribution."
In October 2004, the Board's acting director granted
CMS and AFSCME's stipulated petition, upon finding that Suarez
was a "confidential employee" under section 3(c) of the Illinois
Public Labor Relations Act (Act) (5 ILCS 315/3(c) (West 2004)).
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That same month, Suarez appealed the decision of the Board's
acting director.
In February 2005, the Board reversed the acting direc-
tor's order and dismissed the stipulated petition. The Board did
not reach the issue of whether Suarez was a confidential em-
ployee. Instead, the Board dismissed the petition, upon finding
that CMS and AFSCME's petitions did not fall under any of the
four situations in which a bargaining-unit-clarification petition
is permitted. The Board also stated, in part, as follows:
"The State and AFSCME's assertion that they
mistakenly included Suarez in RC-63 is par-
ticularly untenable in view of the fact that
he has been included in the unit for eight
years, the last four in his current title,
and has been covered by numerous AFSCME/State
collective[-]bargaining agreements during
that time."
B. Case No. 4-05-0277
In July 2004, CMS and AFSCME filed a stipulated
bargaining-unit-clarification petition with the Board, seeking
the removal of Jennifer Ronzone, Sharin Moss-McBride, and Karen
Downey from the OCB RC-028 bargaining unit on the ground that
they were confidential employees. All three of the employees
worked as drug screeners for the Department of Corrections.
Their positions had only been included in the bargaining unit
since April 2004. Later in July 2004, Moss-McBride and Downey
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objected to the petition.
In October 2004, the Board's acting executive director
granted the stipulated petition, upon finding that Ronzone, Moss-
McBride, and Downey were confidential employees. In so finding,
the acting executive director stated as follows:
"The rights of parties to a stable labor[-]
relations environment outweighs the rights of
employees in this case. The confidential
exclusion sought in this matter is designed
to protect the integrity of the employer's
labor[-]relation policies. It is never ap-
propriate to include statutorily excluded
positions in a bargaining unit. A unit clar-
ification petition is appropriate any time
that a party seeks to remove a statutory
exclusion."
In February 2005, the Board reversed the decision of
its acting executive director and dismissed the stipulated
petition for clarification, upon concluding that "there clearly
was no basis for the filing of the instant unit[-]clarification
petition." According to the Board, the bargaining-unit-clarifi-
cation procedure can only properly be utilized in "four extremely
limited circumstances," none of which existed in this case.
These appeals followed.
II. ANALYSIS
A. Bargaining-Unit-Clarification Petitions
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A bargaining-unit-clarification petition is a procedure created by the
Board's regulations and case law. American Federation of State, County & Municipal
Employees v. Illinois State Labor Relations Board, 333 Ill. App. 3d 177, 181, 775 N.E.2d
1029, 1032 (2002). The purpose of such a petition is to provide an official determination
of a bargaining unit's composition. Sedol Teachers Union v. Illinois Educational Labor
Relations Board, 276 Ill. App. 3d 872, 878, 658 N.E.2d 1364, 1368 (1995). A party may
appropriately file a unit-clarification petition only under limited circumstances. American
Federation of State, County & Municipal Employees, 333 Ill. App. 3d at 181-82, 775
N.E.2d at 1032.
Sections 1210.170(a)(1), (a)(2), and (a)(3) of the Illinois Administrative
Code (Code) provide as follows:
"(a) An exclusive representative or an
employer may file a unit[-]clarification
petition to clarify or amend an existing
bargaining unit when:
(1) substantial changes occur in the
duties and functions of an existing title,
raising an issue as to the title's unit
placement;
(2) an existing job title that is logi-
cally encompassed within the existing unit
was inadvertently excluded by the parties at
the time the unit was established; and
(3) a significant change takes place in
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statutory or case law that affects the bar-
gaining rights of employees." 80 Ill. Adm.
Code ''1210.170(a)(1), (a)(2), (a)(3), as
amended by 27 Ill. Reg. 7393 (amended May 1,
2003).
In addition, under Illinois case law, a party may file a unit-
clarification petition when a newly created job classification
has job functions similar to functions already covered in the
bargaining unit. American Federation of State, County & Municipal Employees,
333 Ill. App. 3d at 182, 775 N.E.2d at 1032.
B. CMS and AFSCME's Joint Request for Clarification
CMS first argues that the Board should have affirmed
the executive director's decision because CMS and AFSCME had
jointly requested the removal of the "confidential employees"
from the respective bargaining units. We disagree.
According to the Code, after the posting period for a
stipulated unit-clarification petition ends, the Board can
"approve or disapprove the unit clarification depending upon
whether the amendment or clarification is consistent with the
Act. If objections have been filed, the Board shall proceed in
accordance with [s]ection 1210.170(e)." 80 Ill. Adm. Code '
1210.175(c), as amended by 27 Ill. Reg. 7393 (amended May 1,
2003). Because the affected employees in this case filed objec-
tions to the unit-clarification petitions, the Board could not
have merely deferred to the parties' stipulated petitions.
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C. The Board's Decisions To Reverse the Executive Director's
Dismissal of the Unit-Clarification Petitions
CMS argues that the Board erred by reversing the
decisions of the acting executive director and dismissing their
unit-clarification petitions. The Board responds that this court
should affirm its decisions because (1) the unit-clarification
petitions did not arise out of any of the four circumstances that
justify the filing of such petitions; and (2) once CMS has
intentionally included certain employees within a bargaining
unit, it should be estopped from later seeking to remove those
employees from the unit.
1. Whether a Unit-Clarification Petition May Properly Be Used
To Sever Confidential Employees From Bargaining Units
Initially, we acknowledge that CMS's unit-clarification
petitions do not fall within any of the four "limited circum-
stances" under which a party may file such a petition. However,
in our view, under the unique circumstances that exist in these
cases--that is, where allegedly confidential employees were
improperly included in a bargaining unit--the filing of a unit-
clarification petition is appropriate.
Section 3(c) of the Act defines a confidential employee
as follows:
"[A]n employee who, in the regular
course of his or her duties, assists and acts
in a confidential capacity to persons who
formulate, determine, and effectuate manage-
ment policies with regard to labor relations
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or who, in the regular course of his or her
duties, has authorized access to information
relating to the effectuation or review of the
employer's collective bargaining policies."
5 ILCS 315/3(c) (West 2004).
Section 3(n) of the Act excludes confidential employees from the
definition of "employees" to which the Act applies. 5 ILCS
315/3(n) (West 2004). In Chief Judge of the Circuit Court of
Cook County v. American Federation of State, County & Municipal
Employees, Council 31, AFL-CIO, 153 Ill. 2d 508, 523, 607 N.E.2d
182, 189 (1992), our supreme court explained this exclusion as
follows:
"The purpose of excluding confidential
employees is to keep employees from 'having
their loyalties divided' between their em-
ployer and the bargaining unit which repre-
sents them. The employer expects confidenti-
ality in labor[-]relations matters but the
union may seek access to the confidential
materials to gain a bargaining advantage.
City of Wood Dale, 2 Pub. Employee Rep.
(Ill.) par. 2043, at 299, No. S-RC-261 (ISLRB
September 5, 1986)."
Given the importance of confidentiality in labor-relations
matters, to protect both the employers and the confidential
employees (who could find themselves torn between loyalty to
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their employer and their bargaining unit), we hold that a unit-
clarification petition may appropriately be used to sever confi-
dential employees from a bargaining unit.
Were we to accept the Board's argument that unit-
clarification petitions may only be filed under the four limited
circumstances previously stated, an employer would be barred from
removing a confidential employee from a bargaining unit regard-
less of what information that employee has access to until a new
bargaining-unit contract is negotiated.
In so concluding, we recognize that the Board is not
bound by the rulings of the Illinois Educational Labor Relations
Board (IELRB) (see 5 ILCS 315/15.1 (West 2004)). However, we
note that the IELRB has recognized that the unit-clarification
process is appropriate "to remove statutorily excluded employees
from a bargaining unit." Sedol Teachers Union, 276 Ill. App. 3d
at 879, 658 N.E.2d at 1368. We agree with the IELRB. The Board
must allow the State to file unit-clarification petitions to
remove "confidential employees" from bargaining units.
2. Whether Equitable Estoppel Applies
The Board also argues that because CMS and AFSCME
consciously chose to include the employees in their respective
bargaining units, they cannot now seek to sever those employees
from the units. In essence, the Board contends that the unit-
clarification petitions are barred by equitable estoppel. We
disagree.
In Schivarelli v. Chicago Transit Authority, 355 Ill. App. 3d 93, 103, 823
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N.E.2d 158, 167 (2005), the First District discussed the equitable
estoppel doctrine as follows:
"To invoke equitable estoppel against a municipality there
must be an affirmative act on the part of the municipality and
the inducement of substantial reliance by the affirmative act.
[Citation.] The affirmative act that prompts a party's reliance
must be an act of the public body itself such as a legislative
enactment rather than the unauthorized acts of a ministerial
officer or a ministerial misinterpretation."
"If a municipality were held bound through equitable estoppel by
an unauthorized act of a governmental employee, then the munici-
pality would remain helpless to remedy errors and *** be forced
to permit violations 'to remain in perpetuity.'" Hamwi v.
Zollar, 299 Ill. App. 3d 1088, 1095, 702 N.E.2d 593, 598 (1998),
quoting Chicago v. Unit One Corp., 218 Ill. App. 3d 242, 246, 578
N.E.2d 194, 197 (1991).
In this case, for estoppel to apply, CMS's conscious
act of permitting the subject employees to be members of the
bargaining units would need to have constituted an "act of the
public body such as a legislative enactment." Under section 3(n)
of the Act, confidential employees of the government are not
"public employees." 5 ILCS 315/3(n) (West 2004). Accordingly,
assuming the employees were confidential employees, CMS had no
authority to place them in their respective bargaining units. An
unauthorized act of a ministerial officer cannot be the basis for
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equitable estoppel.
In addition, this court has stated that "[o]ne who
invokes the doctrine of estoppel against the government must
establish affirmative misconduct going beyond mere negligence,
that the government's wrongful act will cause a serious injus-
tice, and the public's interest will not suffer undue damage."
Department of Public Health v. Jackson, 321 Ill. App. 3d 228,
236, 747 N.E.2d 474, 481 (2001).
The Board has failed to establish (1) affirmative
misconduct beyond mere negligence, (2) that the government's
wrongful act will cause a serious injustice, and (3) the public's
interest will not suffer undue damage. Indeed, in this case, if
the employees in question are found to be confidential employees,
the public's interest will suffer damage if the employees (1) are
allowed to stay in their respective bargaining units, (2) have
access to their employer's confidential material, and (3) feel
pressured to share that confidential material with their
bargaining-unit representatives. We emphasize that by these
remarks, we mean to indicate no position as to any findings the
Board, when it conducts hearings as we require on remand, may
make regarding whether the employees in question are confidential
employees.
D. Timeliness of the Petition in Case No. 4-05-0276
The Board also argues that the unit-clarification
petition was properly dismissed in case No. 4-05-0276 because it
was untimely. We disagree.
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As our supreme court recognized in Chief Judge of the
Circuit Court of Cook County, 153 Ill. 2d at 523, 607 N.E.2d at
189, the State has an interest in keeping confidential employees
out of bargaining units. If, at any point, the State determines
that a confidential employee is a member of a bargaining unit,
the State must be allowed to file a unit-clarification petition
to remove that confidential employee. The fact that a confiden-
tial employee was improperly placed in a bargaining unit and the
issue of his placement was not raised for several years should
not dictate that he forever be allowed to stay in the bargaining
unit. We thus conclude that the State can file a unit-clarifica-
tion petition to remove a confidential employee from a bargaining
unit at any time.
In so concluding, we note that Water Pipe Extension,
Bureau of Engineering v. Illinois Local Labor Relations Board,
252 Ill. App. 3d 932, 625 N.E.2d 733 (1993), does not require a
different result. In Water Pipe, 252 Ill. App. 3d at 941, 625
N.E.2d at 739, the appellate court affirmed the Board's decision
that a unit-clarification petition was untimely filed. However,
Water Pipe did not involve confidential employees and the unique
circumstances that we previously discussed.
Accordingly, we reverse the Board's decisions. Because
the Board failed to determine whether the employees in question
were confidential employees under section 3(c) of the Act, we
remand this case to the Board for such a determination. If the
Board determines that any of the employees are confidential
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employees, CMS's unit-clarification petitions should be granted
with regard to each confidential employee.
III. CONCLUSION
For the reasons stated, we reverse and remand for the
Board to determine if any of the employees named in the unit-
clarification petitions are "confidential employees" under
section 3(c) of the Act (5 ILCS 315/3(c) (West 2004)).
Reversed and remanded.
APPLETON and KNECHT, JJ., concur.
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