Forest Preserve District of Cook County v. Illiniois Labor Relations Board

FOURTH DIVISION
December 21, 2006
No. 1-05-0813
FOREST PRESERVE DISTRICT OF COOK COUNTY, )
ILLINOIS, an Illinois Special District, )
)
Petitioner-Appellant, ) Petition For Review
) of Order of The Illinois
v. ) Labor Relations Board
) Case No. L-CA-3020
ILLINOIS LABOR RELATIONS BOARD, ILLINOIS ) L-CU-3020
LABOR RELATIONS BOARD, Local Panel, FRED )
WICKIZER, Acting Executive Director, JACKIE )
GALLAGHER, Panel Chairman, DONALD HUBERT, )
Member, EDWARD E. SADLOWSKI, Member, JOHN )
L. CLIFFORD, Administrative Law Judge, MICHELE )
CONTRUPE, Administrative Law Judge, JACALYN J. )
ZIMMERMAN, General Counsel, STATE AND )
MUNICIPAL TEAMSTERS, CHAUFFEURS, AND )
HELPERS, LOCAL 726, and INTERNATIONAL )
BROTHERHOOD OF TEAMSTERS, LOCAL 726, )
)
Respondents-Appellees. )
PRESIDING JUSTICE QUINN delivered the opinion of the court:
Petitioner Forest Preserve District of Cook County (District) filed a petition
seeking direct review of an order from the Illinois State Labor Relations Board (Board)
finding that the District had committed an unfair labor practice under sections 10(a)(1)
and (a) (4) of the Illinois Public Labor Relations Act (Act) (5 ILCS 315/10(a)(1), (a) (4)
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(West 2002)). On appeal, the District contends that the Board exceeded its authority by
committing several procedural errors and that the District did not commit an unfair labor
practice under the Act where it had no obligation to bargain with respondent State and
Municipal Teamsters, Chauffeurs and Helpers Union, Local 726 (Local 726). For the
following reasons, we affirm the Board’s determination.
I. Background
A. The Charge and Amended Charge
On September 24, 2002, Local 726 filed a charge with the Board (case No. L-CA-
03-020), alleging that the District had violated sections 10(a)(1) and (a)(4) of the Act.
The charge alleged that on September 16, 2002, the District announced that it was
implementing a plan to hire a private contractor to operate and manage the golf courses
owned by the District, which would result in the layoff of approximately 97 employees
represented by Local 726. The charge also alleged that the District made the decision to
enter the private contract and implemented the decision without notice to and good-faith
bargaining with Local 726 regarding the impact of the decision on bargaining unit
employees.
On December 6, 2002, Local 726 amended its charge to include claims that in
2001, the District began considering a plan to hire a particular private contractor. The
amended charge also alleged that when Local 726 learned of these plans, it made
repeated requests to be involved in the decision-making. The District did not respond to
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Local 726’s requests, and on July 9, 2002, the District voted to hire the private
contractor. The amended charge also stated that after hiring the private contractor, the
District contacted Local 726 to discuss the effects of its decision. On September 16,
2002, the District gave notice that it intended to lay off bargaining unit members
employed at the golf courses and driving ranges. On November 17, 2002, between 50 to
60 bargaining unit members were laid off.
The amended charge also alleged that on October 30, 2002, the District
announced a proposed budget that included further layoffs, departmental reorganizations
and proposals to hire private contractors to perform work that was being performed by
bargaining unit members. On November 6, 2002, Local 726 demanded information and
bargaining regarding the layoffs, proposed reorganization and any further decision to hire
outside vendors. The following day, the District informed Local 726 that its board of
commissioners was considering an appropriations ordinance, which would result in
layoffs within the bargaining unit. Local 726 repeated its demand for bargaining and
emphasized that meaningful bargaining must precede adoption of the budget. On
November 21, 2002, the District adopted the budget.
The amended charge also stated that on December 3, 2002, the District informed
Local 726 that: (1) it believed the pending grievance regarding privatization of the golf
course was not arbitrable because it was not covered by the contract; (2) the District
intended to lay off approximately 95 bargaining unit members and all that remained to
discuss was the effects of that decision; and (3) by April 1, 2003, the District planned to
consolidate two departments and, as a result, terminate 31 employees with the title of
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"Forester" and "Woodsman," to create new titles and to allow the terminated employees
to apply for those positions.
In the amended charge, Local 726 again alleged violations of sections 10(a)(1)
and (a)(4) of the Act and requested an order requiring the District to bargain about its
decisions to privatize golf operations, lay off employees, and consolidate departments.
Local 726 also requested an order requiring reinstatement and appropriate back pay for
all employees injured by the District’s failure to bargain and the posting of appropriate
notices.
B. The Memorandums of Understanding
The record shows that the parties’ representatives met to discuss the impact of
the layoff and reached an agreement. On December 19, 2002, the District executed a
memorandum of understanding (MOU I), which Local 726 signed on February 6, 2003.
MOU I related "solely to the Reduction in Force necessitated by the privatization of the
management, operations and control of the District’s Golf Facilities." MOU I also
provided that "neither Party waives any previous position on matters affecting the terms
and conditions of employment of Local 726 employees, or the right to negotiate on such
matters in the future." MOU I also provided that “neither party waives its position
regarding the [unfair labor practice] charge Local 726 has filed regarding the District’s
failure to bargain over the decision to privatize.” MOU I also provided severance pay for
golf driving range employees, initiated their layoff and recall rights, and established
"bumping rights" based on seniority.
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On July 22, 2003, Local 726 executed a memorandum of understanding regarding
employee layoff and recall (MOU II) and a memorandum of understanding regarding
resource technician positions (MOU III). The District executed both MOU II and MOU
III on August 8, 2003. MOU II expressly provided that it superceded MOU I. MOU II
cited the layoffs and stated that the parties had "engaged in negotiations regarding the
impact of these lay-offs [sic] on the bargaining unit and its members." MOU II also
required that the District create a single recall list of employees from all layoffs, provided
that employees retained recall rights for a maximum of two years, and set out how to deal
with various situations involving recalling employees to positions other than the ones
they held immediately before being laid off. MOU II provided that upon its execution,
Local 726 would withdraw the grievance it had filed on December 18, 2002, regarding
the reorganization of the two departments. MOU II also required Local 726 to withdraw
"that part of Case No. L-CA-03-020 regarding privatization of the golf course
operations." The parties also agreed in MOU II that they would arbitrate whether the
District had violated the labor agreement when it privatized the golf courses, and, upon
the selection of an arbitrator for that grievance, Local 726 was to dismiss with prejudice a
lawsuit it had filed involving that same case.
MOU III concerned the resource technician positions resulting from the
reorganization of the two departments and the creation of crews staffed by such
technicians. MOU III provided that "the Parties wish to fully and finally settle all
disputes between them regarding the reorganization, elimination of positions, unit
placement of RT’s [Resource Technicians] and Resources Aides, and the hiring of RT’s."
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The parties specified how the various still-unfilled resource technician positions would
be filled, including the District creating a list of eligible individuals that gave hiring-
preference to those already employed in the unit and establishing the rate of pay for that
job title. MOU III also recorded that the parties had agreed to include the new resource
technician positions in the bargaining unit and to jointly petition the Board to amend the
existing unit description. Local 726 was to withdraw its previously filed unit
clarification petition in case No. L-UC-03-002 and its grievance regarding the
reorganization.
On September 11, 2003, counsel for Local 726 wrote a letter to a Board
investigator stating that Local 726 was withdrawing "the portion of this charge related to
the privatization of Forest Preserve Golf Courses and the portion related to consolidation
of the Conservation and Forestry Departments into a new Resource Management
Department." The letter also stated that "[t]his leaves the portion of the charge which
alleges that the [District] improperly refused to bargain about the layoff of approximately
95 bargaining unit members on December 31, 2002. The Union requests that the [Board]
proceed quickly to issue a Complaint on this remaining allegation."
C. The Complaint
On January 13, 2004, the Board’s Acting Executive Director issued a complaint
for hearing. The complaint concerned, in part, the District’s decision to eliminate two
job titles, lay off bargaining-unit employees, and consolidate two departments into one
department staffed by non-bargaining unit employees in three new job titles. The
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complaint also included Local 726’s allegations that the District failed to provide notice
and bargain regarding its decision and that the decision involved wages, hours or working
conditions within the meaning of the Act and was therefore a mandatory subject of
bargaining. On December 19, 2002, Local 726 filed a petition for amendment or
clarification of unit (UC Petition) with the Board (case No. L-UC-03-002), seeking to
add the employees in the three new job titles to the existing Local 726 bargaining unit.
The petition and complaint were consolidated for purposes of hearing.1
On February 10, 2004, the District filed a response to the complaint for hearing
and affirmative defenses. In its answer to the complaint, the District admitted the
allegation in paragraph 7, which alleged that, "In or before October 2002, the Respondent
decided to implement a layoff of unit employees." As an affirmative defense, the District
argued that Local 726’s charge was rendered moot by two memorandums of
understanding between the parties. The District asserted that on February 6, 2003, the
parties entered into a "Memorandum of Understanding Relating to the Reduction in
Force necessitated by the privatization of the management, operations and control of the
1
In accordance with MOU III, Local 726 formally withdrew the UC Petition on
the day of the hearing and agreed to file the papers for the parties to jointly agree to the
addition of the resource technician position to the bargaining unit. On August 6, 2004,
ALJ Clifford returned the UC Petition to investigation for action by the Board’s Acting
Executive Director, who amended the unit to include the title of resource technician on
September 20, 2004.
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District’s Golf Facilities," which gave laid-off employees "bumping rights," two weeks'
severance, and payment of accrued vacation and compensatory time. The District also
stated that on July 22, 2003, the parties entered into a second agreement, entitled
"Memorandum of Understanding Regarding Employee Layoff and Recall," which
superceded the first agreement and provided that the parties had engaged in negotiations
regarding the impact of layoffs. The District also asserted that the second agreement
provided that Local 726 agreed to withdraw "that part of Case No. L-CA-03-020
regarding privatization of the golf course operations."
The District also asserted that the parties agreed in a third agreement, on July 22,
2003, entitled "Memorandum of Understanding Regarding Resource Technician
Positions," that "the Parties wish to fully and finally settle all disputes between them
regarding the reorganization, elimination of positions, unit placement of [resource
technicians] and Resource Aides, and the hiring of [resource technicians]." The District
asserted that it fully discharged any bargaining obligation that it may have had by
entering into the three memorandum agreements.
On February 16, 2004, shortly before the original date scheduled for the hearing,
counsel for Local 726 wrote a letter to counsel for the District in an attempt to "spell out
the issues." That letter stated in pertinent part:
"A good starting point is the Amended Charge in this case.
We allege that on October 30, 2002, the Employer announced a plan to lay off
approximately 95 bargaining unit members at the end of the calendar year.
The reason for the lay off was economic, i.e., the Employer’s budget
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shortfall. We allege that the Union twice demanded to bargain prior to the
implementation of the budget and that the District did not respond to these
demands. We also allege that when the parties met on December 3, 2002,
the Employer announced that the layoff decision had already been made
and that the parties should proceed to 'effects bargaining.' I have enclosed
a copy of the Amended Charge for your reference.
We think the facts will show: (1) that the parties bargained about the
effects and (2) that at no time did the Union waive or withdraw its claim
that the decision was made in violation of the law and that appropriate
remedies are therefore in order."
On March 10, 2004, the District filed a motion for summary judgment arguing,
inter alia, that Local 726 waived its right to bargain and that Local 726 had already
received its remedy where the parties had engaged in impact bargaining, which resulted
in MOUs I, II, and III. The District included the letter written by Local 726’s counsel on
February 16, 2004, as an exhibit to its motion for summary judgment. In the supporting
memorandum accompanying its motion, the District set out that there had been one
layoff in three stages: the first stage in November 2002, the second on December 31,
2002, and the third on March 31, 2003. The District identified the issue as being whether
Local 726 had unequivocally waived its right to bargain "over the implementation of the
second stage of this RIF (Reduction in Force), which became effective on December 31,
2002." Local 726 did not respond to the District’s motion for summary judgment, and
the Board denied that motion on April 19, 2004.
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D. The Hearing and Amendment to the Complaint
At the hearing on May 13, 2004, administrative law judge (ALJ) Michele N.
Cotrupe attempted to set out the issues. She stated that her understanding of the case
included the following issues:
"1. Whether the Respondent violated section[s] 10(a)(4)
and
(1) of the Act when it implemented a layoff of employees represented by the
Charging Party in October, 2002.
2. Whether the Respondent violated section[s] 10(a)(4) and (1) of the Act
when it failed and refused to provide the Charging Party with information
that it requested on October 30, 2002.
And, finally, whether the unit description should be revised
to include the titles of Resource Manager, Resource Technician and Resource
Management Aide."
Following this recitation of the issues, counsel for Local 726 requested to amend the
complaint. Counsel for Local 726 stated, "[w]ith respect to the third issue, on the record
today we would like to amend the [unit clarification] petition, per an agreement with the
Forest Preserve, to just include the title of Resource Technician." Counsel for the
District stated, "That’s fine. We have no objections." Counsel for Local 726 also
withdrew the second part of the complaint relating to the provision of information.
With respect to the first issue in the complaint, the parties noted that they had
reached an agreement with respect to the privatization of the golf courses, which led to
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the October layoffs referenced in the complaint. Counsel for Local 726 stated that the
complaint should instead reference the layoffs that took place in December 2002 and that
she “would like to move on the record to amend the complaint” to include the following:
"That on December 31, 2002, the Employer laid off approximately 95 unit employees."
Counsel for the District stated that she did not oppose the motion and ALJ Cotrupe
agreed that the complaint would be amended. At the conclusion of counsel for Local
726’s opening statement, counsel for the District stated:
"The District is going to at this time object to any further
proceedings. There has not been a complaint for hearing issued on the
December 2002, layoff. The complaint for hearing that’s been issued in
this case is for October 2002.
The Petitioner has amended his charge to include the December
2002, layoff; however, no complaint for hearing has been issued
with respect to the December 2002, layoff."
Counsel for Local 726 responded:
"I want to say one thing about that, in addition to the fact that I’ve moved
to amend the complaint.
If you read the complaint very closely, in Paragraph 7 it says, 'In or before
October 2002, the Respondent decided to implement a layoff of unit
employees.'
I think the evidence is very clear that the Forest Preserve District was
contemplating the layoff of unit employees and, indeed, the layoff that
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was the budgetary layoff in October 2002; and as a consequence, I think,
if you read the complaint very closely, there is nothing in the complaint
that’s inconsistent with dealing with a layoff that occurred after 2002, in
either golf or an economic layoff, or in the layoffs that were caused by the
merger of the two departments."
Counsel for the District then stated:
"The complaint for hearing that was issued by the Board specifically
addresses the October 2002, layoff. It makes no reference whatsoever to a
December 2002, layoff. Therefore, that issue is not before the Board at this time,
as a complaint for the December 2002, layoff has not been filed by the Board."
ALJ Cotrupe noted that counsel for Local 726 had moved to amend the complaint
and allowed Local 726 to proceed with the presentation of its evidence. ALJ Cotrupe
also noted that the parties would be allowed to brief whether the complaint should be
amended to reflect the December 2002 layoff.
Local 726 called Jim Green to testify on its behalf. Green testified that he had
been employed as Local 726's counsel for 10 years and served as chief spokesman during
contract negotiations. When Green learned about possible layoffs during the summer of
2002, relating to the District’s golf courses, Green testified that Local 726 demanded to
meet with the District and filed a grievance. Local 726 demanded to bargain about the
District’s decision to lay off employees, but the District’s position was that it did not
have to bargain over that issue. Green testified that the parties did bargain over the
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effects of the layoffs and reached an agreement on November 1, 2002, which was
memorialized in a memorandum of understanding dated November 4, 2002.
Green testified that the secretary-treasurer for Local 726 subsequently showed
him a press release from the District’s website. Sometime after October 30, 2002, Green
downloaded the press release from the District’s website, which set out highlights from
the District’s proposed 2003 budget, including the combination of two existing
departments into one and the elimination of 473 positions. Green testified that at the
time, there were also articles in newspapers regarding the budget and potential layoffs
and reductions. Green also testified that shortly thereafter, Local 726 received a “Notice
of Proposed Reduction in Work Force” from the District, which was dated November 4,
2002.
Green also testified that after the District refused to bargain about its decision to
privatize the golf courses, Local 726 filed an unfair labor practice charge. After the
announcement of the subsequent budgetary layoffs, Green directed another attorney for
Local 726 to write a letter objecting to that action, demanding to meet with the District,
and demanding rescission or postponement pending bargaining of that action. Such a
letter was issued by an attorney for Local 726 on November 6, 2002, but Green testified
that the District did not respond to the letter. Green testified that an attorney for Local
726 issued a follow-up letter on November 20, 2002, which was during the time that the
proposed budget was in the process of being adopted by the District.
Green testified that after the budget had been adopted, the parties began to meet
on December 3, 2002, regarding the effect of that budget on bargaining unit employees.
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Green testified that the District refused to bargain with respect to Local 726's demand
that the District rescind its action and postpone the layoffs pending bargaining about the
decision. The District then sent out a "Notice to Employee" to employees that potentially
were to be laid off, advising that "[t]here are plans to have a reduction in force (Layoff)
in late December." Notices to individuals of termination of services effective December
31, 2002, were issued by the District on December 4, 2002.
Green testified that the parties met again to bargain about the effects of the layoff
due to the District’s reduced budget in late December 2002, and continued to bargain into
January and February 2003. Green testified that the parties also began bargaining about
the effect of the reorganization of the other department. Green testified that the parties
entered into a memorandum of understanding, which set forth the process by which
people would be recalled, what rights they would have to bump to a different position,
and the amount of time that they would retain those rights. Green testified that the
parties also entered into a memorandum of understanding regarding the effects of the
reorganization of the two departments into one, which included that the newly created job
title would be under Local 726's jurisdiction. Green testified that the parties never
bargained about the District’s decision to have the layoffs. Green testified that the
District made it clear that it would not bargain over its decision and Local 726 made it
clear that it would bargain about the effects, but would not in any way waive its position
that the District was required to bargain about the decision.
During cross-examination, Green testified that the collective bargaining
agreement between the District and Local 726 contained a "management rights" clause.
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The record shows that the collective bargaining agreement between the parties was
effective from January 1, 2000, through December 31, 2002. The "management rights"
clause in article II, section 1, of the agreement provides:
"The Union recognizes that the District has the full authority and responsibility
for directing its operations and determining policy. The District reserves unto
itself all powers, rights, authority, duties and responsibilities conferred upon it
and vested in it by the statutes of the State of Illinois, and to adopt and apply all
rules, regulations and policies as it may deem necessary to carry out its statutory
responsibilities; provided, however, that the District shall abide by and be limited
only by the specific and express terms of this Agreement, to the extent permitted
by law."
Green testified that he did not recall the management rights clause being mentioned
during negotiations. Green testified that if the parties had agreed on a layoff provision
during contract negotiations, they could have put that agreement in the collective
bargaining agreement. Green also testified that the collective bargaining agreement did
not contain some of the topics addressed in the memorandum of understanding regarding
employee layoff and recall.
The District called its chief financial officer, Barbara McKinzie, to testify
concerning the District’s budgetary constraints. She testified that the District was legally
required to have a balanced budget and that tax caps enacted in 1995 limited increases in
its income and capped infrastructure debt. McKinzie testified that the income for each
fiscal year lagged by 12 to 24 months, and therefore the budget had to be balanced based
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on expected income. McKinzie testified that the District received its revenue in two
installments, with the first one in March. McKinzie testified that because the District
used "seasonal help" to cover the heavy peak time between May and October, the
District’s expenses would go up a lot while it was not getting any revenue and that it
would receive the second installment of income after the season was theoretically over.
McKenzie also testified that, in 2001, the District’s board passed a resolution that
"went on record with a policy *** that there would not be borrowing anymore."
McKinzie subsequently joined the District in February 2002. McKenzie testified that an
audit through 2001 showed that, for a number of years, the District had been spending
more money than it had received in revenues. McKenzie testified that the "first step in
the budget would be to get the managers to determine how they can operate and reduce
cost to mirror what we were taking in." McKenzie testified that the District had a $2
million deficit in 2001, but that the District did not fill all budgeted positions and made
an effort to cut costs in 2002, resulting in no deficit in 2002. McKenzie also testified that
due to an adjustment in accounting procedures, the District’s balance at the end of 2002
showed a $2 million increase in debt. McKenzie testified that the District took steps to
reduce the deficit in the 2003 budget. McKenzie testified that in 2002, when she arrived,
the Board had decided to privatize its golf courses and proposed an overall reduction in
operations within the District.
The District also called Jonathan Rothstein to testify. Rothstein testified that he
was an attorney representing the District during its negotiation of the collective
bargaining agreement with Local 726. Rothstein testified that the collective bargaining
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agreement did not contain layoff provisions and stated that it was not a subject of
negotiations. Rothstein testified that the agreement had a provision addressing when
seniority rights could be terminated. Rothstein also testified that all employees in the
resource technician job classification had previously been in forestry positions.
Following the hearing, ALJ Cotrupe resigned her position with the Board and
ALJ John Clifford was assigned to this case. ALJ Clifford notified the parties of his
assignment on or around June 28, 2004, and the record does not reflect that either party
objected to that assignment. On August 30, 2004, ALJ Clifford issued a recommended
decision and order, in which he granted Local 726's motion to amend the complaint. In
doing so, ALJ Clifford found that as late as February 2004, both parties assumed that
paragraph 7 of the complaint referred to the District’s decision in October 2002 to
implement a December 2002 layoff. ALJ Clifford stated, "The amendment merely
clarifies the original allegation and arises out of the same subject matter, as it merely
adds that the October 2002 decision to implement a layoff resulted in the December 2002
layoff. Although Local 726's proposed amendment adds nothing to paragraph 7 as
originally understood, I grant it to avoid any confusion."
ALJ Clifford found that the District’s decision to implement a layoff for
budgetary reasons was a mandatory subject of bargaining and that Local 726 did not, in
bargaining with the District, waive its right to bargain about the budgetary layoff. ALJ
Clifford found that the District violated sections 10(a)(1) and (a)(4) of the Act by failing
and refusing to bargain with Local 726 over its October 2002 decision to lay off
employees in December 2002.
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On October 6, 2004, the District filed exceptions to ALJ Clifford’s recommended
decision and order. On March 5, 2005, the Board affirmed the ALJ’s decision and, inter
alia ordered the District to: (1) reinstate the laid off employees and make them whole; (2)
on request, bargain collectively with Local 726 about the decision; (3) post notices; and
(4) notify the Board of its actions. The District appeals from the Board's determination.
II. Analysis
A. The District’s Procedural Arguments
The District raises several arguments that the Board exceeded its authority during
the proceedings. "Pursuant to the Act, judicial review of the Board’s decision is limited
and governed by the Administrative Review Law (735 ILCS 5/3-110; 5 ILCS 315/11(e)
(West 2002))". City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191,
204 (1998). When reviewing proceedings under the Administrative Review Law, this
court must determine whether the procedures required by law were taken by the
administrative agency and, if so, whether the decision of the agency was against the
manifest weight of the evidence. Metz v. Illinois State Labor Relations Board, 231 Ill.
App. 3d 1079, 1093 (1992). An administrative agency’s factual determinations are
contrary to the manifest weight of the evidence where the opposite conclusion is clearly
evident. City of Belvidere, 181 Ill. 2d at 205. The reviewing court also has a duty to
examine the procedural methods employed at the administrative hearing to ensure that a
fair and impartial procedure was used. Anderson v. Human Rights Comm'n, 314 Ill.
App. 3d 35, 41 (2000).
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1. The District’s Argument That All Charges in the Complaint Were Settled
The District first contends that the Board erred by conducting a hearing where the
matters raised in the complaint had been resolved by the various memorandums of
understanding entered into by both parties. Contrary to the District’s contention, nothing
in the three MOUs states that Local 726 was to withdraw its charge and amended charge
so far as it concerned an alleged violation by the District to bargain over the October
2002 decision to lay off individuals that resulted in the December layoffs. While the
MOUs stated that various other aspects of the allegations were to be withdrawn, they did
not include the October 2002 decision to lay off individuals.
In addition, Local 726 clarified that it was continuing to pursue this issue in its
letter to a Board investigator on September 11, 2003. In that letter, counsel for Local 726
stated that Local 726 was withdrawing “the portion of this charge related to the
privatization of Forest Preserve Golf Courses and the portion related to consolidation of
the Conservation and Forestry Departments into a new Resource Management
Department.” The letter also stated that “[t]his leaves the portion of the charge which
alleges that the [District] improperly refused to bargain about the layoff of approximately
95 bargaining unit members on December 31, 2002.”
Further, on February 16, 2004, counsel for Local 726's letter to counsel for the
District stated that its amended charge alleged that on October 30, 2002, the District
announced a plan to lay off approximately 95 bargaining unit members at the end of the
calendar year for economic reasons. Counsel for Local 726 also stated that while the
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parties met to bargain about the effects of the layoff, “at no time did the Union waive or
withdraw its claim that the decision was made in violation of the law.”
2. Local 726's Amendment to the Complaint
The District also contends that the Board exceeded its authority in granting Local
726's motion to amend the complaint where none of the requirements for allowing
amendments are present in this case. We disagree.
Section 11(a) of the Act provides that “[a]ny such complaint may be amended by
the member or hearing officer conducting the hearing for the Board in his discretion at
any time prior to the issuance of an order based thereon.” 5 ILCS 315/11(a) (West
2002). Under section 1220.50(f) of the Rules and Regulations of the Illinois Labor
Relations Board (Rules) (80 Ill. Admn. Code, amended at 27 Ill. Reg. 7436 (eff. May 1,
2003) § 1220.50(f)), “[t]he Administrative Law Judge, on the judge's own motion or on
the motion of a party, may amend a complaint to conform to the evidence presented in
the hearing or to include uncharged allegations at any time prior to the issuance of the
Judge's recommended decision and order.” The Board’s case law provides two specific
instances in which a complaint may be amended: “(1) where, after the conclusion of the
hearing, the amendment would conform the pleadings to the evidence and would not
unfairly prejudice any party; and (2) to all allegations not listed in the underlying charge,
so long as the added allegations are closely related to the original charge, or grew out of
the same subject matter during the pendency of the case.” Service Employees
International Union, Local 73 v. Village of Wilmette, 20 Pub. Employee Rep. (Ill.) Par.
85, Nos. S-CA-01-231, S-CA-01-233, S-CA-02-125 (May 14, 2004).
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Here, we find that the ALJ properly allowed Local 726 to amend the
complaint where the amendment merely clarified the original allegation and arose out of
the same subject matter as the original allegation. The record showed that as late as
February 2004, when counsel for Local 726 wrote a letter to the District’s counsel, the
parties assumed that paragraph 7 of the complaint referred to the District’s decision in
October 2002 to implement a December 2002 layoff. The amendment merely added that
the October 2002 decision resulted in the December 2002 layoff. The amendment made
clear what the complaint intended and what the parties understood it to mean prior to the
hearing.
The District further argues that the ALJ was required to conduct a new
investigation prior to amending the complaint because the December 2002 layoff was a
new untimely charge. However, we reject the District’s argument where, as previously
discussed, the amendment did not constitute a new charge, but rather clarified the
complaint in this case.
3. The District’s Argument that Only ALJ Cotrupe Was Permitted to Amend the
Complaint and Issue the Recommended Decision and Order
The District argues that as the judge who conducted the hearing, only ALJ
Cotrupe had the authority to amend the complaint. In his recommended decision and
order, ALJ Clifford found that “the proposed amendment adds nothing to paragraph 7 as
originally understood” and “grant[ed] it to avoid any confusion.” However, the
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record shows that during the hearing, ALJ Cotrupe did grant Local 726's amendment to
the complaint then later stated that she would allow the parties to submit further briefs on
the issue. The following exchange took place during the hearing:
“[Counsel for Local 726]: Let’s do it this way: I would like to move
on the record to amend the complaint, and my proposed amendment is the
following: ***
[A]dd to paragraph 7 the sentence, ‘That on December 31, 2002, the Employer
laid off approximately 95 unit employees.’
***
[Counsel for the District]: If that’s his amendment, that’s his amendment.
[ALJ Cotrupe]: Do you oppose it?
[Counsel for the District]: Oppose him amending? He’s going to refile anyway.
So no, I don’t oppose. There is no sense in prolonging it.
[ALJ Cotrupe]: Okay. Then the complaint will be amended.”
Contrary to the District’s contention, ALJ Cotrupe did permit Local 726 to amend the
complaint.
The District also contends that ALJ Clifford had no authority to issue his order
granting the amendment simultaneously with his recommended decision and order. The
District argues that it was deprived of its right to file a written response to the decision to
amend the complaint.
Section 11(a) provides that “[t]he person who is the subject of the complaint has
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the right to file an answer to the original or amended complaint and to appear in person or
by a representative and give testimony at the place and time fixed in the complaint.” 5
ILCS 315/11(a) (West 2002). Here, the District’s counsel was present at the hearing and
presented testimony and other evidence. Counsel was not precluded from filing an
answer to the amendment, but waived his objection to the amendment by stating “I don’t
oppose.” The District also notes that it was able to brief the issue relating to the
amendment in its closing brief. Therefore, the District was not prevented from
presenting its position in this case.
The District further argues that ALJ Clifford lacked the authority to issue his
recommended decision and order where he was not the ALJ who conducted the hearing.
Our supreme court has held that, in the absence of statutory provisions to the
contrary:
“‘[I]t is not necessary that testimony in administrative proceedings be
taken before the same officers who have the ultimate decision-making authority.
[Citations.] *** [A]dministrative proceedings may be conducted by hearing
officers who refer the case for final determination to a board which has not
“heard” the evidence in person. The requirements of due process are met if the
decision-making board considers the evidence contained in the report of
proceedings before the hearing officer and bases its determination thereon.
[Citations.]’” Starkey v. Civil Service Comm’n, 97 Ill. 2d 91, 100 (1983), quoting
Homefinders Inc. v. City of Evanston, 65 Ill. 2d 115, 128 (1976).
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This court has also found that the requirements of procedural due process are also met,
under the Act, when a substituting hearing officer bases his decision not only on the
evidence presented before him but also on the evidence contained in the report of
proceedings before a prior hearing officer. North Shore Sanitary District v. Illinois State
Labor Relations Board, 262 Ill. App. 3d 279, 295 (1994).
Here, ALJ Clifford considered the evidence presented to him as well as the
evidence presented to ALJ Cotrupe during the hearing. In addition, neither party
objected to ALJ Clifford’s assignment to this case after ALJ Cotrupe left the Board’s
employ. ALJ Clifford also noted in his recommended decision and order that he was
unable to discern any credibility issues in this case. See North Shore Sanitary District,
262 Ill. App. 3d at 295 (where credibility is a determining factor in a case, the presiding
hearing officer must participate in the decision). Therefore, the fact that ALJ Clifford,
rather than ALJ Contrupe, made the ultimate recommended decision to the Board is
inconsequential.
The District, nonetheless, cites Gilchrist v. Human Rights Comm’n, 312 Ill. App.
3d 597 (2000), in support of its argument that ALJ Clifford lacked the authority to issue
the recommended decision and order in this case. We find Gilchrist to be
distinguishable. In Gilchrist, this court found that the Human Rights Commission
exceeded its authority where its determination failed to meet the specific requirements of
the Illinois Human Rights Act. This court held that the statutory requirement that the
presiding hearing officer transmit his or her impression of witness credibility to the
hearing officer who authors the findings and recommended order was not met. This
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court also found that the requirement, under the Human Rights Act, that there be no
questions of witness credibility presented by the record as found by the presiding officer
was not met. Unlike Gilchrist, the ALJ in this case was not bound by the specific
requirements under the Human Rights Act. In addition, we agree with ALJ Clifford’s
determination that there were no credibility issues present in this case.
4. The District’s Affirmative Defenses and Motion for Summary Judgment
The District next contends that because Local 726 did not respond to its
affirmative defenses and motion for summary judgment, the District’s affirmative
defenses should have been deemed admitted and the complaint should have been
dismissed or the District’s motion for summary judgment should have been granted.
The District argues that where the Board’s rules are silent, the Board should have applied
provisions of the Illinois Code of Civil Procedure to find that the District’s affirmative
defenses are admitted.
Under the Act, the Board has the obligation to promulgate “procedural rules and
regulations which shall govern all Board proceedings.” 5 ILCS 315/5(I) (West 2002).
Pleading before the Board in unfair labor practice proceedings is governed not by the
Illinois Code of Civil Procedure (Code) (735 ILCS 5/1-101 et seq.) (West 2002)), but
rather by the Board’s Rules (80 Ill. Adm. Code §§ 1200 through 1240) amended at 27 Ill.
Reg. 7436 (eff. May 1, 2003). General Service Employees Union, Local 73, 3 Public
Employee Rep. (Ill.) Par. 3030, Nos. L-CA-87-200, L-CA-87-205 (September 21, 1987),
International Brotherhood of Electrical Workers, Local 193, Public Employee Rep. (Ill.)
Par. 2024, No. S-CA-92-104 (April 30, 1993). This court has also noted that the Code’s
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provisions generally do not apply to administrative proceedings. See Jones v.
Department of Human Rights, 162 Ill. App. 3d 702 (1987); Desai v. Metropolitan
Sanitary District of Greater Chicago, 125 Ill. App. 3d 1031 (1984). This is because
administrative procedure is simpler, less formal and less technical than judicial
procedure. Desai, 125 Ill. App. 3d at 1033.
Also, pursuant to the Board’s Rules, once the complaint for hearing is issued in an
unfair labor practice proceeding, the charging party is not required to file anything.
Section 1220.40(b) of the Rules provides in pertinent part:
“(b) Whenever the Executive Director issues a complaint for hearing, the
respondent shall file an answer within 15 days after service of the complaint and
deliver a copy to the charging party by ordinary mail to the address set forth in
the complaint. ***
***
(2) The answer shall also include a specific, detailed statement of any
affirmative defenses.” 80 Ill. Adm. Code § 1220.40(b)(2), amended at Ill.
Reg. 7436 (eff. May 1, 2003).
Contrary to the District’s contention, the Rules are not silent on the matter of affirmative
defenses. Rather, section 1220.40(b)(2) of the Rules compels a respondent to file an
answer to the complaint and include in the answer any affirmative defenses. However,
there is nothing in the Rules stating that a charging party, such as Local 726, must then
respond to the affirmative defenses. There is also no provision for a respondent to file
any motion or pleading, other than an answer, when served with a complaint. The Rules
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do not provide that if a charging party declines to file a response to a respondent’s
affirmative defenses or summary judgment motion, it will be subject to default judgment.
Further, the standard for granting summary judgment is not whether a party filed
a response but whether the right of the moving party is clear and free from doubt.
Midfirst Bank v. Abney, 365 Ill. App. 3d 636, 643 (2006). "Summary judgment is
appropriate only where 'the pleadings, depositions, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.' " Midfirst Bank, 365 Ill.
App. 3d at 643, quoting 735 ILCS 5/22-1005(c)(West 2002). When a motion for
summary judgment is unopposed, the court must nonetheless conduct an examination to
determine whether the moving party is entitled to summary judgment. Midfirst Bank,
365 Ill. App. 3d at 643. For these reasons, we reject the District’s argument that its
affirmative defenses should have been deemed admitted and motion for summary
judgment should have been granted against Local 726.
B. Mandatory Subject of Bargaining
The District next contends that its refusal to bargain with Local 726 regarding the
December 2002 layoff did not constitute an unfair labor practice in violation of section
10 of the Act (5 ILCS 315/10 (West 2002)) where the burden on the District to bargain
over the layoff outweighed any benefits to Local 726 and, therefore, was not a mandatory
subject of bargaining.
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Section 10 of the Act provides in pertinent part:
"(a) It shall be an unfair labor practice for an employer or its agents:
(1) to interfere with, restrain or coerce public employees in
the exercise of the rights guaranteed in this Act or to dominate
or interfere with the formation, existence or administration of
any labor organization or contribute financial or other support
to it ***;
***
(4) to refuse to bargain collectively in good faith with a labor
organization which is the exclusive representative of public
employees in an appropriate unit ***." 5 ILCS 315/10(a)(1),
(a)(4) (West 2002).
In resolving whether the District committed an unfair labor practice in violation of these
sections, this court must determine whether the District had a mandatory duty to bargain
collectively with Local 726 regarding the December 2002 layoff.
Before addressing the merits of this issue, we must first address the applicable
standard of review. The issue of whether a public employer is required to bargain over a
specific subject generally involves a mixed question of law and fact, and the applicable
standard of review is "clearly erroneous." City of Belvidere, 181 Ill. 2d at 205. In City of
Belvidere, our supreme court explained that the term "wages, hours, and other conditions of
employment" is a legal term that requires interpretation and found that the Illinois State Labor
Relations Board's determination whether the matter was a mandatory bargaining subject
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involved the factual consideration of whether the bargaining subject in question affected
"wages, hours, and other conditions of employment." City of Belvidere, 181 Ill. 2d at 205.
Under the clearly erroneous standard of review, an agency's decision will be reversed
only where the reviewing court, on the entire record, is " 'left with the definite and firm
conviction that a mistake has been committed.' " AFM Messenger Service, Inc. v.
Department of Employment Security, 198 Ill. 2d 380, 395 (2001), quoting United States v.
United States Gypsum Co., 333 U.S. 364, 395, 92 L. Ed. 746, 766, 68 S. Ct. 525, 542 (1948).
Our supreme court has also stated that, notwithstanding the clearly erroneous standard of
review, an agency's factual findings should be afforded a great deal of deference and will not
be reversed on appeal unless such findings were against the manifest weight of the evidence.
City of Belvidere, 181 Ill. 2d at 205. We can now turn to the merits of this appeal.
The Act imposes a duty on a public employer, such as the District, to engage in good-
faith collective bargaining with its employees’ representative under certain circumstances.
Pursuant to section 7 of the Act, an employer has a duty to bargain over issues which affect
"wages, hours, and other conditions of employment." 5 ILCS 315/7 (West 2002). Section 4
of the Act further provides in part: "Employers shall not be required to bargain over matters of
inherent managerial policy ***. Employers, however, shall be required to bargain
collectively with regard to policy matters directly affecting wages, hours and terms and
conditions of employment." 5 ILCS 315/4 (West 2002).
Oftentimes, however, an issue affects both the conditions of employment and
management’s inherent authority. In such a “hybrid” situation, the determination of whether
the employer must collectively bargain can only be resolved by weighing the benefits of
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bargaining with the burdens on management. Central City Education Association v. Illinois
Educational Labor Relations Board, 149 Ill. 2d 496, 523 (1992).
In Central City, our supreme court set forth a three-part test for determining whether a
matter is a mandatory subject of bargaining. Pursuant to the Central City test, a matter is a
mandatory subject of bargaining if it: (1) concerns wages, hours, and terms and conditions of
employment; and (2) is either not a matter of inherent managerial authority; or (3) is a matter
of inherent managerial authority, but the benefits of bargaining outweigh the burdens
bargaining imposes on the employer's authority. Central City, 149 Ill. 2d at 523. Whether a
matter concerns wages, hours, and terms and conditions of employment is a question that the
administrative agency "is uniquely qualified to answer." Central City, 149 Ill. 2d at 523.
Here, the Board relied on this court’s decision in American Federation of State,
County & Municipal Employees v. State Labor Relations Board, 274 Ill. App. 3d 327 (1995)
(AFSCME), in determining that the December 2002 layoff was a mandatory subject of
bargaining. In AFSCME, this court recognized that the employer’s decision to lay off
employees was inextricably connected with the terms and conditions of employment, but that
it also involved a matter of inherent managerial authority. In that case, this court noted that
the reduction in force was motivated primarily, if not exclusively, by economic constraints
resulting from a shortfall in the employer’s budget and that matters relating to overall budget
are within the scope of managerial policy. This court concluded:
“[A]fter weighing the benefits and burdens, it becomes clear that a decision to layoff
employees due to a decrease in State funding truly invites the use of the collective
bargaining process. *** [A] bargaining representative is frequently in the best position
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to provide alternatives which may alleviate economic conditions and avoid employee
layoffs. Not only is the representative authorized to negotiate on behalf of the
employees, but he or she often possesses information which may not be available to
management and which could influence management’s decision to reduce its force.”
AFSCME, 274 Ill. App. 3d at 333.
This court also found that the purported burdens upon management were illusory and affirmed
the State Labor Relations Board’s determination that the layoff was a mandatory subject of
bargaining.
Here, the Board determined that the December 2002 layoff was a mandatory subject of
bargaining based on this court’s analysis in AFSCME. The District argues that the Board
erred by failing to apply the Central City test to this case and failing to weigh the benefits and
burdens of bargaining in this case. However, both parties acknowledged that the lay off was
connected with the terms and conditions of employment and that it also involved a matter of
inherent managerial authority. Contrary to the District’s assertion, the Board did conduct a
benefit and burden analysis of bargaining. The Board agreed with ALJ Clifford’s determi-
nation that the District violated sections 10(a)(1) and (c)(4) of the Act. In his recommended
decision and order, ALJ Clifford specifically included the benefits of bargaining regarding
layoffs, as this court discussed in AFSCME. ALJ Clifford also rejected the District’s
asserted burdens that bargaining would impose upon it. ALJ Clifford determined that the
District’s asserted budgetary problems were not so immediate that bargaining could not have
occurred. ALJ Clifford noted that the District was aware of budgetary issues in February
2002 when it hired a new chief financial officer and adopted a policy to have a balanced
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budget and not borrow funds. The District also announced its plans in October 2002, which
included the December 2002 layoff. Therefore, the District had time to bargain.
Accordingly, we find that the Board properly determined that the District’s decision involved
a mandatory subject of bargaining and that the District committed an unfair labor practice in
violation of sections 10(a)(1) and (a)(4) of the Act.
The District, nonetheless, cites Chicago Transit Authority v. Amalgamated Transit
Union, Local 241, 299 Ill. App. 3d 934 (1998) (CTA) in support of its argument that the
December 2002 layoff was not a mandatory subject of bargaining where Local 726 did not
present any evidence relating to the benefits of bargaining. In CTA, this court upheld the
Board’s determination that the CTA’s decision to reclassify job positions was not a mandatory
subject of bargaining. In CTA, the Board found that the union that filed the unfair labor
practice charge " 'presented no evidence or legal argument to demonstrate that the benefits of
bargaining over the particular reclassification decision *** outweighed the burdens that
bargaining would impose on CTA’s authority to administer its position classification
system.' " CTA, 299 Ill. App. 3d at 939. Unlike CTA, in this case, the Board relied on legal
arguments regarding the benefits of bargaining relating to layoffs, as this court discussed in
AFSCME. The Board also rejected the District’s asserted burdens that bargaining would
impose upon it. We find no error in the Board’s application of the Central City test, where it
considered the benefits and burdens of bargaining.
The District also contends that, even if its decision was a mandatory subject of
bargaining, Local 726 waived any right to bargain about the decision to conduct a layoff.
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A party to a collective bargaining agreement may waive its rights to bargain under the
Act where the contractual language evinces an unequivocal intent to relinquish such rights.
AFSCME, 274 Ill. App. 3d at 334. However, evidence that a party to a labor agreement
intended to waive a statutory right must be clear and unmistakable. The language sustaining
the waiver must be specific and waiver is never presumed. AFSCME, 274 Ill. App. 3d at 334.
We find that no clear and unmistakable intent to waive rights to bargain exists in this
case. The District points to the management rights clause of the collective bargaining
agreement as reserving the District’s right to lay off employees. However, that clause does
not mention layoffs or reductions in force. The District cites AFSCME in support of its
argument that such clauses can constitute waiver, but in that case it was critically important
that the clause expressly included as management functions the right " 'to relieve employees
from duty because of lack of work or other legitimate reasons; [and] to determine the size and
composition of the work force.' " AFSCME, 274 Ill. App. 3d at 334-35. No such language
appears in the collective bargaining agreement in this case. The District has therefore failed
to demonstrate that the contractual provisions constitute “clear and unmistakable” evidence
of waiver.
The District further argues that by engaging in impact bargaining and accepting the
benefits of the MOUs, Local 726 waived its right to bargain regarding the District’s decision
to implement layoffs in December 2002. However, the first MOU expressly dealt only with
the golf and driving range privatization. It also included a statement that "neither party
waives any previous position on matters affecting the terms and conditions of employment of
Local 726 employees, or the right to negotiate on such matters in the future." The second
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MOU explicitly stated that the parties wished to resolve "certain of these matters" and the
third MOU stated that the parties wished to settle "all disputes between them regarding the
reorganization, elimination of positions, unit placement of RT’s and Resource Aides, and the
hiring of RT’s." No waiver is clear and unmistakable on the face of these documents. In
addition, the second and third MOUs were entered into after Local 726 filed its charge about
the decision to lay off employees in December 2002, yet nothing in the MOUs required Local
726 to withdraw that aspect of the charge although Local 726 was required to withdraw other
portions of the charge.
Further, there is no evidence that the District’s representatives offered to bargain or
attempted to bargain about Local 726 waiving any right to bargain about the District’s
decision. The evidence showed that the District’s representatives refused to bargain about the
decision to lay off employees in December 2002. Local 726's counsel, Green, testified that
the parties never bargained about the District’s decision to have the layoffs and that Local 726
made it clear that it would bargain about the effects, but would not in any way waive its
position that the District was required to bargain about the decision. Green also testified that
he did not recall the management rights clause being mentioned during negotiations and that
if the parties had agreed on a layoff provision during contract negotiations, they could have
put that agreement in the collective bargaining agreement. For these reasons, we conclude
that the evidence fails to demonstrate that Local 726, in a clear and unmistakable manner,
waived its right to bargain about the decision to conduct the December 2002 layoff.
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C. Local 726's Unit Clarification Petition
The District lastly contends that the Board should not have amended the description of
the bargaining unit because Local 726 had agreed to withdraw its UC Petition.
The record shows that on September 20, 2004, the Acting Executive Director issued
an order and certification of clarified unit in case No. L-UC-03-002, which added the
District’s newly created title of Resource Technician to the existing historical bargaining unit
represented by Local 726. The record also shows that in MOU II, the District and Local 726
agreed that "the Union will withdraw its pending UC petition before the ILRB, Case No. L-
UC-03-002." However, in that same memorandum of understanding, the parties also agreed
that “[t]he RT [resource technician] position will be added to the bargaining unit and the
Parties agree to take all steps necessary to accomplish this accretion, including jointly
petitioning the ILRB, if necessary, for an amendment to the existing unit description.” Also,
at the hearing, counsel for Local 726 stated: “With respect to the third issue, on the record
today we would like to amend the UC petition, per an agreement with the Forest Preserve, to
just include the title of Resource Technician.” Counsel for the District then responded,
"That’s fine. We have no objections." Accordingly, the District is precluded from arguing
that the Board erred in amending the bargaining unit description on appeal.
III. Conclusion
For the above-stated reasons, we affirm the Board’s determination that the District’s
decision to layoff employees was a proper subject for mandatory bargaining, that Local 726
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did not waive bargaining over that issue, and that the District committed an unfair labor
practice under sections 10(a)(1) and (4) of the Act by failing to comply with bargaining
requirements.
Affirmed.
CAMPBELL and NEVILLE, JJ., concur.
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