State of Illinois, Department of Central Management Services v. State of Illinois, Illinos Labor Relations Board

Filed 7/29/08 NO. 4-07-0645
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE STATE OF ILLINOIS, DEPARTMENT OF ) Direct Appeal from
CENTRAL MANAGEMENT SERVICES (ILLINOIS ) Illinois Labor
DEPARTMENT OF CORRECTIONS), ) Relations Board
Petitioners-Appellants, ) No. S-CA-05-004
v. )
THE STATE OF ILLINOIS, ILLINOIS LABOR )
RELATIONS BOARD, STATE PANEL; JACKIE )
GALLAGHER, MICHAEL HADE, CHARLES )
HERNANDEZ, REX PIPER, and MICHAEL COLI, )
the Members of the Said Board and Panel )
in Their Official Capacity Only; JOHN )
BROSNAN, Executive Director of Said )
Board in His Official Capacity Only; )
and THE AMERICAN FEDERATION OF STATE, )
COUNTY AND MUNICIPAL EMPLOYEES, )
COUNCIL 31, )
Respondents-Appellees. )
_________________________________________________________________
JUSTICE COOK delivered the opinion of the court:
The State of Illinois, Department of Central Management
Services (hereinafter CMS) and Department of Corrections (herein-
after DOC), appeals a decision of the Illinois Labor Relations
Board, State Panel (ILRB), which found that DOC violated the
Illinois Public Labor Relations Act (5 ILCS 315/10(a)(1), (a)(4)
(West 2004)). American Federation of State, County & Municipal
Employees, Council 31 v. Illinois Departments of Central Manage-
ment Services & Corrections, 23 Pub. Employee Rep. (Ill.) par.
113, at 475, No. S-CA-05-004 (Illinois Labor Relations Board,
State Panel, June 29, 2007) (hereinafter 23 Pub. Employee Rep.
(Ill.) par. 113). The ILRB found that DOC had implemented
layoffs within the prison system without first bargaining in good
faith with the employee's representative, the American Federation
of State, County, and Municipal Employees, Council 31 (AFSCME).
The master contract between the parties gave the State the right
to decide, determine upon and implement layoffs, but AFSCME
argued that the State still had the duty to bargain over the
effects or impact of such a layoff and breached that duty. We
reverse.
I. BACKGROUND
Governor Rod Blagojevich, in his February 18, 2004,
budget proposal, called for an elimination of positions in DOC,
to take effect in the next fiscal year, beginning July 1, 2004.
One group of layoffs arose from the prospective closures of the
Vandalia Correctional Center and the St. Charles Youth Center.
The other group, at issue in this case, was scattered among
various DOC facilities. The focus of those layoffs was to
standardize staffing and eliminate unnecessary positions. The
day after the budget proposal, AFSCME's regional director asked
DOC to "identify each incumbent [by name] who would be affected
by this proposal." About April 1, preliminary plans for the
elimination of positions and consequent reorganization became
finalized and attention turned to seniority, bumping, and layoff
provisions. CMS completed its review and approved the layoff and
identification of persons to be subject to layoff and bumping by
mid-April 2004. On April 27, 2004, DOC released to AFSCME a list
of facilities, job classifications, and the number of employees
subject to layoff. On April 30, 2004, DOC distributed individual
layoff packets to all employees who would be affected by the June
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30, 2004, reorganization.
In the latter part of May 2004, DOC sent teams of
personnel staff to the various facilities to accomplish the 24-
to 48-hour notice to individual employees required by the master
contract. The teams were to meet individually with employees
whose positions were to be eliminated, beginning with the most
senior employee. The team informed the employee about his or her
seniority and bumping rights, described the layoff-bumping
process, showed him or her the seniority list, and obtained the
employee's decision whether he or she wanted to waive bumping and
be considered only for transfers to vacancies. Typically, the
facility warden was present at these meetings, together with the
president of the union local, and one or more AFSCME representa-
tives.
DOC and AFSCME representatives meet every two or three
months as a standing committee to discuss labor-management issues
generally and often to bargain over the effects of DOC decisions.
A standing committee meeting was held on April 12 and 13. The
first bargaining meeting was held June 2. According to the
administrative law judge (ALJ), "it is clear that the plan was
not, as yet, complete or near implementation as to some posi-
tions." American Federation of State, County & Municipal Employ-
ees, Council 31 v. Illinois Departments of Central Management
Services & Corrections, 23 Pub. Employee Rep. (Ill.) par. 113, at
484, No. S-CA-05-004 (Illinois Labor Relations Board, State
Panel, Administrative Law Judge's Recommended Decision and Order,
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June 29, 2007) (hereinafter ALJ recommended decision, 23 Pub.
Employee Rep. (Ill.) par. 113). The second bargaining meeting
was held June 30, 2004, the date the reorganization was to become
effective. At the meeting, DOC agreed that if Vandalia did not
close, the 400 vacancies reserved for Vandalia employees would be
offered to those in the reorganization layoff. That same day,
DOC laid off 66 bargaining-unit members, eliminating their
positions, which in turn affected 100 other bargaining-unit
members through bumping, transfers, and lateral assignments. The
third meeting was held July 22. On August 2, 2004, AFSCME filed
the instant unfair-labor-practice charge.
The ALJ concluded that once it was known which employ-
ees were to be laid off or affected by layoff, which was known
after the May meetings with the individual employees to be
affected, DOC should have furnished AFSCME with a list. The ALJ
concluded that the failure to furnish a list constituted at least
a technical failure to bargain in good faith. The ALJ recom-
mended that DOC be ordered to provide AFSCME with the list of all
employees who were laid off or affected by the June 30, 2004,
layoff. Although DOC argued that the information requested was
known to AFSCME, and AFSCME could have easily compiled its own
list, the ALJ concluded that "to have a list compiled by the
State would have avoided all or any confusion about what the
State intended to do--no compilation by various AFSCME represen-
tatives in meetings across the State in various locations would
have that authoritative touch." ALJ recommended decision, 23
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Pub. Employee Rep. (Ill.) par. 113, at 486.
On the major issue in the case, however, the ALJ ruled
in favor of DOC:
"I find that AFSCME sought to bargain
not effects or impact of the decision to
layoff but instead the very decision to
layoff itself. That decision is strengthened
by Maupin's [AFSCME's Regional Director for
southern Illinois'] testimony that, had he
the list he had requested of names, he would
have attempted to propose changes in wages
to stave off some of the layoffs and otherwise
bargained about the individuals to be laid
off or affected by layoff." ALJ recommended
decision, 23 Pub. Employee Rep. (Ill.) par.
113, at 487.
Some of AFSME's objections went to performance of work by employ-
ees outside the bargaining unit or violations of the complicated
pay and classification scheme, but the ALJ concluded those issues
were already addressed by the master contract. A grievance could
be filed on those issues but there was no obligation on the part
of either party to bargain further about that subject.
The ALJ rejected the claim that DOC "engaged in delay
tactics." ALJ recommended decision, 23 Pub. Employee Rep. (Ill.)
par. 113, at 487. DOC could not be expected to engage in "impact
bargaining" until it had determined who was to be laid off,
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moved, or bumped. "I find no indication on this record that any
'delay' occurred such that would indicate an unwillingness to
meet at reasonable times and places to reach agreement." ALJ
recommended decision, 23 Pub. Employee Rep. (Ill.) par. 113, at
487. The ALJ also rejected the contention that DOC failed to
send representatives to the table with sufficient bargaining
authority:
"As the record makes clear, AFSCME presented
proposals that did not have to do with the
effect or impact of the decision to layoff
but instead substantially with the decision
to layoff, person by person. That is what
AFSCME tacitly admits in its phraseology,
'identifying problems.' Hence [DOC] was
under no duty to bargain as to such matters
at all, as the labor agreement already meant
the parties had fully bargained about the
decision to layoff and that bargain was that
the State could make that decision at any
time. Moreover, to the extent that the pro-
posals involved objections to the planned
layoff on various contractual grounds, the
grievance procedure was itself the agreed-
upon procedure to raise such matters and that
procedure did not require same-day responses."
ALJ recommended decision, 23 Pub. Employee
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Rep. (Ill.) par. 113, at 487.
The ALJ found no evidence to support the allegation that DOC
engaged in "direct dealing" with employees or was lying when it
decided to postpone the closing of the Vandalia facility "indefi-
nitely." ALJ recommended decision, 23 Pub. Employee Rep. (Ill.)
par. 113, at 488.
The ALJ noted that although typically an employer must
await consent or impasse as to the effects of impasse bargaining
before instituting a decision, the parties here had negotiated an
agreement that gave the State the right to decide, determine
upon, and implement a layoff. The master contract was to expire
on June 30, 2004. To allow AFSCME to delay a layoff decision by
raising proposals over which DOC had no obligation to bargain
"would result in AFSCME overturning the bargain it had made and
stuck to through several labor agreements." ALJ recommended
decision, 23 Pub. Employee Rep. (Ill.) par. 113, at 488.
On June 29, 2007, in a brief order, the ILRB rejected
the ALJ's recommended decision and ordered DOC to (1) "rescind
the June 30, 2004[,] layoff until such time as [r]espondent State
has bargained in good faith with AFSCME, to either impasse or
agreement, over the impact thereof"; (2) reinstate the employees
laid off, bumped, or moved; and (3) make whole the employees for
the loss of any pay or benefits. The ILRB recognized that some
of AFSCME's proposals improperly sought to bargain the decision
to layoff, but "others were aimed at effects, such as the propos-
als regarding the redistribution and transfer of work." 23 Pub.
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Employee Rep. (Ill.) par. 113, at 477. Because "the State's
layoff plan was far from settled, [it was] difficult, if not
impossible for AFSCME to advance its proposals on effects." 23
Pub. Employee Rep. (Ill.) par. 113, at 477. According to the
ILRB, the imminent expiration of the collective-bargaining
agreement was not a factor to be considered: "the State's rela-
tively hurried implementation of the layoff is not a sufficient
basis to deprive AFSCME of an adequate opportunity to bargain the
effects thereof." 23 Pub. Employee Rep. (Ill.) par. 113, at 477.
Chairman Gallagher and Member Piper, dissenting, noted
that the task of determining who is laid off, after taking into
account seniority, bumping rights, and moves to vacant positions,
is inherently complicated and time-consuming. All of AFSCME's
proposals improperly went to the decision to layoff as to partic-
ular employees. There was no obligation to bargain regarding the
transfer of work to employees outside the unit as the master
contract already prohibited such action. If AFSCME had really
wanted to formulate and present general issues and proposals
regarding the effects of a layoff, it could have done so, even
though the State's plan was not complete by the June 2 meeting.
23 Pub. Employee Rep. (Ill.) par. 113, at 478 (Gallagher, Chair-
man, and Piper, Member, dissenting).
II. ANALYSIS
We review de novo the ILRB's decision with respect to
questions of law. AFM Messenger Service, Inc. v. Department of
Employment Security, 198 Ill. 2d 380, 390, 763 N.E.2d 272, 279
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(2001). However, we give substantial weight and deference to the
ILRB's interpretation of the law, because an agency is able to
make informed judgments upon the issue, based upon its experience
and expertise. Illinois Consolidated Telephone Co. v. Illinois
Commerce Comm'n, 95 Ill. 2d 142, 153, 447 N.E.2d 295, 300 (1983).
We review mixed questions of law and fact under the clearly
erroneous standard, and we will set aside the ILRB's determina-
tion of fact only if it is against the manifest weight of the
evidence. AFM Messenger Service, 198 Ill. 2d at 392, 763 N.E.2d
at 280. In order for a finding to be against the manifest weight
of the evidence, an opposite conclusion must be clearly apparent.
Chicago Park District v. Illinois Labor Relations Board, Local
Panel, 354 Ill. App. 3d 595, 608, 820 N.E.2d 61, 73 (2004).
Although the ILRB is free to accept or reject the ALJ's findings
and recommendations, the ILRB's order must have some support in
the record. Sherman v. Human Rights Comm'n, 206 Ill. App. 3d
374, 386, 564 N.E.2d 203, 212 (1990).
The decision to lay off employees for economic reasons
is generally considered a mandatory subject of bargaining about
which both parties have a duty to bargain. In the present case,
however, AFSCME had previously waived its statutory right to
bargain over the decision to layoff employees. American Federa-
tion of State, County & Municipal Employees v. Illinois State
Labor Relations Board, 274 Ill. App. 3d 327, 653 N.E.2d 1357(1995). AFSCME argues, however, that DOC still has the duty to
bargain over the effects or impact of such a layoff. The ILRB
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concluded that "[a]lthough some of AFSCME's proposals indeed
sought to bargain the decision [to lay off], others were aimed at
effects, such as the proposals regarding the redistribution and
transfer of work." 23 Pub. Employee Rep. (Ill.) par. 113, at
477. We disagree. AFSCME had made a proposal, or objection, to
the performance of work by employees outside the bargaining unit,
but such transfer of work was already prohibited by reason of the
master contract and neither party had any obligation to bargain
about that subject further. Other objections went to whether
some classifications within the bargaining unit could properly
perform an eliminated position's tasks, but again, that question
was already covered by the master contract's complicated pay and
classification scheme. The ILRB does not identify any proposal
made by AFSCME which was "aimed at effects."
What really are proposals regarding "effects" or
"impact" of a layoff? The ALJ gave several examples: additional
training, mental or emotional therapy, job-referral services and
moving expenses, severance pay, extension of benefits. The ALJ
also concluded that AFSCME made no such proposals and gave no
indication that it intended to make such proposals, finding that
AFSCME sought not to bargain effects or impact of the decision to
layoff but instead the very decision to lay off itself. ALJ
recommended decision, 23 Pub. Employee Rep. (Ill.) par. 113, at
487. The ILRB disagreed with the ALJ, but did not give any
explanation what proposals regarding "effects" or "impact" were
considered by AFSCME or ignored by DOC. 23 Pub. Employee Rep.
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(Ill.) par. 113, at 477. If an agency rejects the fact finding
of an ALJ, the agency, at a minimum, should provide the appellate
court with a rational exposition of how other facts or circum-
stances justify such a course of action. Dantran, Inc. v. United
States Department of Labor, 171 F.3d 58, 73 (1st Cir. 1999). It
is not enough for the agency to merely state that it disagrees
with the ALJ; the agency should set forth the basis of its
disagreement so that it may be determined whether the agency's
finding is supported by substantial evidence in the record.
International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Local No. 310 v. National Labor Relations
Board, 587 F.2d 1176, 1181 (D.C. Cir. 1978).
The ILRB concluded that "the State's plan was in
disarray and that the parties had no opportunity to rationally
discuss the impact of the decision." 23 Pub. Employee Rep.
(Ill.) par. 113, at 477. The ALJ found, however, that DOC did
not engage in "delay tactics" and that DOC was willing at all
times to meet at reasonable times and places to reach agreement.
ALJ recommended decision, 23 Pub. Employee Rep. (Ill.) par. 113,
at 487. The ILRB again points to no facts inconsistent with that
position. State layoffs for economic reasons routinely follow a
pattern. Traditionally, the Governor announces a proposed budget
in February that will become effective the following July 1.
June 30 of each year is the last day of the State's fiscal or
budget year. AFSCME was aware of these dates when it agreed to
the master contract, which gives the State the right to decide
upon and implement a layoff plan. Everyone recognizes that
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accomplishing a layoff under the master contract is complicated,
requiring a comparison of job classifications, determinations
whether vacancies exist, and individual determinations whether
there is a right to bump other employees and whether that right
will be exercised. If AFSCME really wanted to bargain over the
impact and effects of the layoff, it could have done so after the
layoff occurred. One such meeting was held, on July 22, but
AFSCME chose to file the instant unfair-labor-practice charge 11
days later, on August 2.
The master contract addressed layoff issues in detail
in article XX and contains mechanisms for resolving them. One
mechanism was the 30-day notice, requiring that AFSCME be given a
notice 30 days in advance of the layoff, if possible, which shall
"contain the details of layoff with respect to numbers, position
classification, and work location." There is no dispute that
notice was given on April 27. Another mechanism calls for
individual meetings between management and the employees to be
laid off, bumped, or transferred, to ascertain what the employee
wants to do, after giving him 24 to 48 hours earlier the senior-
ity lists and vacancy lists to review and explaining options. It
is only after the conclusion of those meetings that DOC can
identify who is subject to lay off or affected by it. The State
was not acting in disarray when it followed the mechanisms set
out in the master contract. The fact that the master contract
deals with a complicated situation to be resolved within a
limited period of time does not automatically result in a failure
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to bargain in good faith.
III. CONCLUSION
For the foregoing reasons, we reverse the ILRB's
decision.
Reversed.
TURNER and STEIGMANN, JJ., concur.
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