American Federation of State, County, and Municipal Employees v. The Illinois Labor Relations Board , 90 N.E.3d 576 ( 2017 )

2017 IL App (5th) 160046NOTICE
Decision filed 11/8/17. The text
of this decision may be NO. 5-16-0046
changed or corrected prior to
the filing of a Peti ion for
Rehearing or the disposition of
IN THE
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
________________________________________________________________________
AMERICAN FEDERATION OF STATE, COUNTY, ) Petition for Review of
AND MUNICIPAL EMPLOYEES, COUNCIL 31, ) an Order of the Illinois
) Labor Relations Board,
Petitioner, ) State Panel.
)
v. )
)
THE ILLINOIS LABOR RELATIONS BOARD and ) No. S-CA-16-007
THE STATE OF ILLINOIS DEPARTMENT OF )
CENTRAL MANAGEMENT SERVICES, )
)
Respondents. )
________________________________________________________________________
JUSTICE CHAPMAN delivered the judgment of the court, with opinion.
Justices Goldenhersh and Cates concurred in the judgment and opinion.
OPINION
¶1 The petitioner, the American Federation of State, County, and Municipal Employees,
Council 31 (AFSCME), appeals a decision of the Illinois Labor Relations Board (ILRB)
dismissing its unfair labor charge against the State of Illinois Department of Central
Management Services (CMS). The charge challenged a policy requiring employees to pay the
entire cost of their health insurance premiums for any pay period during which they go on strike,
even if they are not on strike for the entire pay period. The charge was dismissed without a
hearing. AFSCME argues that the ILRB abused its discretion because AFSCME presented
sufficient evidence to warrant a hearing on its claims that (1) the policy was a unilateral change
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to a term of employment instituted at a time when the parties were in negotiations for a new
contract and (2) the policy improperly threatened to penalize employees for lawfully exercising
their right to strike.
¶2 After briefing was complete in this appeal, CMS filed motions asking this court to take
judicial notice of unrelated proceedings between the same parties pending in other courts. In
those proceedings, AFSCME argued that the procedures followed by the ILRB violated the Open
Meetings Act (5 ILCS 120/1 et seq. (West 2014)), which meant that its decision was not a final
order. In the motions to take judicial notice it filed in this case, CMS argued that the position
AFSCME took in the other proceedings was contrary to its assertion here that this court has
jurisdiction. CMS also filed a motion asking this court to remand this matter to the ILRB to
allow the ILRB to conduct additional proceedings that would eliminate any Open Meetings Act
problem. Although none of the parties challenge our jurisdiction over this matter, the question of
our jurisdiction is implicated by CMS’s motions, and we will therefore address it. We find that
we have jurisdiction to hear this appeal; we grant CMS’s motion to take judicial notice; we deny
CMS’s motion to remand; and we reverse the decision of the ILRB.
¶3 On July 27, 2015, AFSCME filed the unfair labor charge against CMS that forms the
basis of this appeal. In the charge, AFSCME alleged as follows: In June 2015, while the parties
were in negotiations for a new collective bargaining agreement, CMS posted a list of frequently
asked questions (FAQs) on its website. One of the questions concerned the payment of health
insurance premiums for employees who go on strike. The posted response indicated that
employees engaged in a strike would be required “to immediately pay the full cost of their health
insurance” premiums. AFSCME further alleged that the State continues to pay its share of the
premiums during other types of unpaid absences.
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¶4 In the charge, AFSCME argued that the policy set forth in the FAQ response violates
section 10(a)(1) and section 10(a)(2) of the Illinois Public Labor Relations Act (Labor Relations
Act) (5 ILCS 315/10(a)(1), (2) (West 2014)). AFSCME argued that the policy discriminates
against employees for going on strike, an activity protected under the Labor Relations Act,
because it treats striking employees differently from other employees who go on unpaid leave.
¶5 Attached to the charge were a printout of the FAQs posted on the CMS website and a
copy of portions of the State of Illinois employee benefits handbook. The relevant question and
response read as follows:
“Q. Will striking employees still receive health insurance?
A. Yes, but striking employees will be responsible for the full cost of their
health insurance, including the amount normally contributed by the State on behalf of the
employee. If striking employees miss any day during the pay period due to being on
strike, they will be sent a bill for the full cost of their coverage.”
https://www.illinois.gov/employeefaqs/pages/default.aspx
The employee benefits handbook contained rules governing eligibility for the employer
contribution to health insurance for several types of unpaid leaves of absence. It showed that
employees remain eligible for the employer contribution to their health insurance premiums
during many, but not all, types of unpaid leave. It did not address the responsibility for paying
health insurance premiums when employees go on strike.
¶6 The unfair labor charge was assigned to ILRB member Michael Provines for
investigation. In July and August of 2015, Provines corresponded by e-mail with attorneys from
AFSCME and CMS to clarify the issues to be considered. During that correspondence, counsel
for AFSCME argued that the policy in the FAQ constituted an unfair labor practice for three
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reasons. First, the policy acts as a threat to dissuade employees from striking because its message
to employees is that if they go on strike, even for one day, they would be required to pay the full
amount of their health insurance premiums for the entire pay period. See 5 ILCS 315/10(a)(1)
(West 2014). Second, the policy constitutes a unilateral unbargained-for change in a term of
employment-health insurance. See 5 ILCS 315/10(a)(4) (West 2014); Vienna School District No.
55 v. Illinois Educational Labor Relations Board, 162 Ill. App. 3d 503, 506-07 (1987) (citing
National Labor Relations Board v. Katz, 369 U.S. 736, 743-47 (1962)). Third, the policy
discriminates against employees who go on strike because other employees on unpaid leaves of
absence do not have to pay the employer’s share of their health insurance premiums. See 5 ILCS
315/10(a)(2) (West 2014).
¶7 On September 15, 2015, CMS sent a letter to Provines that served as its response to the
unfair labor charge. It argued that communicating its policy to its employees is protected as free
speech under section 10(c) of the Labor Relations Act. See 5 ILCS 315/10(c) (West 2014). CMS
also argued that the policy is not an unfair labor practice. CMS noted that an employer is not
required to subsidize a strike. It pointed out that, consistent with this principle, the reply to
another FAQ on the website indicates that striking workers would not be paid during a strike, a
policy the union does not challenge. CMS argued that the policy concerning health insurance
premiums was no different from the policy concerning wages. Finally, CMS argued that the
policy expressed in the FAQ was not a new policy and therefore did not change a term or
condition of employment during contract negotiations. In support of this argument, CMS alleged
that during a 2004 strike by employees of Northeastern Illinois University, the policy was
applied to those striking workers. Attached as an exhibit was a chart of the “pay codes” used by
CMS for various types of leaves of absence, including strikes. The chart indicates that striking
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employees are “100% responsible” for their health insurance premiums. It does not address
whether those employees are responsible for their entire premiums only for the duration of the
strike or for the remainder of the pay period as well.
¶8 In further e-mail correspondence, Provines asked counsel for CMS whether employees
are coded as “on strike” for the entire pay period, regardless of how many days they are on
strike, and, if so, why. Counsel indicated that the pay codes apply to entire pay periods,
regardless of the duration of the strike. He explained that it was “practically impossible” for the
payroll system to prorate health insurance premiums. He noted that other pay codes for unpaid
leaves of absence are handled the same way.
¶9 Provines forwarded the pleadings and correspondence to Executive Director Melissa
Mlynski, who issued a decision and recommended order on October 27, 2015. She found that
negotiations for a new collective bargaining agreement began in February 2015 and that the FAQ
response was first posted in June 2015. She further found that the employees represented by
AFSCME in the affected bargaining units were not then on strike and had never gone on strike.
She also noted that, although AFSCME never filed an amended charge, CMS had actual notice
of all three of its arguments. She therefore considered all three.
¶ 10 Mlynski first analyzed AFSCME’s contention that the policy discriminates against
employees for engaging in a strike, a protected activity under the Labor Relations Act. See 5
ILCS 315/10(a)(2) (West 2014). She explained that to prevail on such a claim, the union must
show that the employees actually engaged in protected activity (such as a strike); that the
employer was aware of their activity; and that the employer took an adverse action against the
employees. She concluded that because the bargaining units at issue had never gone on strike and
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the policy had never been applied to them, AFSCME’s charge failed to state a claim under
section 10(a)(2).
¶ 11 Mlynski next considered AFSCME’s claim that CMS made a unilateral change to a term
of employment when it announced the policy in the FAQ. She noted that AFSCME, as the
charging party, had the burden of showing at least some evidence that CMS had unilaterally
changed a term of employment in order to be entitled to a hearing on this issue. Pointing to
CMS’s assertion that the 2004 Northeastern Illinois University strike was handled in the manner
described in the FAQ, she found that AFSCME did not present sufficient evidence to warrant a
hearing on this issue.
¶ 12 Finally, Mlynski considered AFSCME’s claim that the policy violates section 10(a)(1) by
threatening or dissuading employees from striking. In rejecting this claim, she pointed to the
State’s policy of not paying the salaries of striking employees while they are on strike, a policy
the union did not challenge. She found that the policy concerning health insurance premiums was
no different from this policy. She concluded that the unfair labor charge should be dismissed
without a hearing.
¶ 13 On November 9, AFSCME filed an appeal with the ILRB. AFSCME conceded that its
claim of discrimination under section 10(a)(2) was not ripe for decision because the policy had
not been applied to its members. It argued, however, that there was at least sufficient evidence to
raise questions on both of its other claims. First, AFSCME pointed out that it would be an unfair
labor practice under section 10(a)(1) to penalize striking employees by refusing to pay their
salaries for an entire pay period, rather than just during the strike. It argued that the policy at
issue was analogous to such a practice. Second, AFSCME argued that there was a genuine issue
of fact concerning whether the FAQ constituted a change in policy during contract negotiations,
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an unfair labor practice under section 10(a)(4). In support of this argument, AFSCME alleged
that CMS did not communicate this policy to the union or its members prior to posting it online.
AFSCME also alleged that its research showed that during the 2004 Northeastern Illinois
University strike, no faculty members were billed for the employer’s share of their health
insurance premiums and that nontenure track faculty members were reimbursed for improper
deductions after the strike ended. AFSCME argued that a hearing was necessary to resolve both
of its claims.
¶ 14 On December 15, 2015, the ILRB voted to adopt the decision of Executive Director
Mlynski. This vote took place at a meeting of the ILRB’s State Panel that was open to the public.
On January 22, 2016, the ILRB issued a written decision adopting Mlynksi’s decision and
dismissing the unfair labor charge. AFSCME timely filed a petition for review with this court.
¶ 15 This matter was fully briefed and ready to proceed to oral argument by December 2016.
On December 6, CMS filed a motion, asking us to take judicial notice of an appeal pending in
the Fourth District involving the same parties. Two days later, CMS filed another motion, asking
us to take judicial notice of two additional proceedings involving the same parties—an appeal in
the First District and a petition filed by AFSCME in the Cook County circuit court. In those
matters, all of which involved a single decision of the ILRB, AFSCME asserted that the decision
was not a valid final administrative decision because the ILRB’s procedures violated the Open
Meetings Act. CMS argued in the motions it filed in this case that because the ILRB followed the
same procedure in this case that it followed there, the position taken by AFSCME in those
proceedings is at odds with its invocation of our jurisdiction in this case.
¶ 16 On December 21, 2016, CMS filed a motion, asking this court to remand this matter to
the ILRB without considering the merits. CMS stated that it took no position on the Open
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Meetings Act argument raised by AFSCME in the other proceedings. However, CMS argued that
in light of the unsettled Open Meetings Act question, the interest of judicial economy would be
best served by remanding the matter to the ILRB to allow it to hold additional proceedings that
would eliminate any Open Meetings Act problem. Both AFSCME and the ILRB opposed the
motion to remand.
¶ 17 We heard oral argument in this case in April 2017. At that time, we asked all three parties
to provide us with supplemental arguments on the questions of jurisdiction and the motion for
remand. We note that none of the parties have argued that we lack jurisdiction. Nevertheless, we
have an obligation to independently consider our jurisdiction, even if it is not challenged by the
parties, and we must dismiss the appeal if we do not have jurisdiction to decide it. See Fligelman
v. City of Chicago, 264 Ill. App. 3d 1035, 1037 (1994). We will therefore address the question.
We turn now to the issues raised by CMS’s motions.
¶ 18 We first consider the two motions to take judicial notice. A court may take judicial notice
of documents in the records of other courts or administrative tribunals. NBD Highland Park
Bank, N.A. v. Wien, 251 Ill. App. 3d 512, 520 (1993) (citing May Department Stores Co. v.
Teamsters Union Local No. 743, 64 Ill. 2d 153, 159 (1976)). We therefore grant both motions
and take judicial notice of the proceedings CMS identified.
¶ 19 As we mentioned earlier, all three proceedings involved one decision of the ILRB. There,
each of the parties filed an unfair labor charge against the other party. The two charges were
consolidated for a hearing before an administrative law judge (ALJ). The ALJ issued a lengthy
decision and recommended order. Both parties appealed different portions of that decision to the
ILRB. The ILRB did not adopt the ALJ’s decision in its entirety. Instead, it voted to adopt only
certain portions of the ALJ’s order. The vote took place at a hearing that was open to the public.
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¶ 20 CMS filed a petition for review with the Fourth District almost immediately, before the
ILRB issued a written order. AFSCME filed a motion to dismiss, arguing primarily that the
decision of the ILRB was not a final and reviewable decision because no written decision had
been issued. See 5 ILCS 315/11(c), (e) (West 2014). AFSCME further argued that in order for a
written decision of the ILRB to be a final and reviewable decision, the ILRB must comply with
the requirements of the Open Meetings Act. AFSCME argued that to comply with the Open
Meetings Act, the ILRB would need to vote on the final written order at a meeting open to the
public. See Baldermann v. Board of Trustees of the Police Pension Fund, 2015 IL App (1st)
140482, ¶ 37; Howe v. Retirement Board of the Firemen’s Annuity & Benefit Fund, 2013 IL App
(1st) 122446, ¶ 32. It is this latter argument that CMS calls to our attention in its motions.
¶ 21 A few weeks after CMS filed its petition for review in the Fourth District, the ILRB
issued its written decision. It did not hold an additional public hearing to vote on that decision.
AFSCME then filed a petition for injunctive relief in Cook County, arguing that this procedure
violated the Open Meetings Act. See 5 ILCS 120/3(a) (West 2014) (providing that any individual
may bring a civil action seeking relief for violations of the Open Meetings Act). AFSCME also
filed its own petition for review in the First District, addressing the merits of the ILRB’s decision
in case it does not prevail on its Open Meetings Act argument. The First District appeal was
subsequently transferred to the Fourth District and consolidated with the appeal previously filed
there. The consolidated appeal remains pending.
¶ 22 Before turning to the question of jurisdiction, a brief explanation of the rationale
underlying AFSCME’s Open Meetings Act argument will be helpful. The statutory definition of
a “public body” includes administrative agencies of the State, thus the ILRB is a public body
subject to the requirements of the Open Meetings Act. See 5 ILCS 120/1.02 (West 2014). The
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Open Meetings Act requires that all meetings of public bodies be open to the public, with certain
exceptions. 5 ILCS 120/2(a) (West 2014). Under one exception, a public body may hold a closed
meeting to consider the evidence and testimony that was presented in an open meeting,
“provided that the body prepares and makes available for public inspection a written decision
setting forth its determinative reasoning.” 5 ILCS 120/2(c)(4) (West 2014). Public bodies must
take all final actions in open meetings. 5 ILCS 120/2(e) (West 2014).
¶ 23 Here, the ILRB held a public meeting to consider AFSCME’s appeal of the Executive
Director’s recommended order. It voted at that meeting to adopt her decision in its entirety.
However, ILRB members signed a written decision adopting her recommended dismissal order
at a closed hearing. That decision sets forth the procedural history of the matter and states that
the ILRB upholds the Executive Director’s dismissal “for the reasons stated therein”; it does not
include independent findings of fact or conclusions of law. Essentially the same procedure was
followed in the Fourth District proceedings. There, however, the ILRB did not adopt all of the
findings of the ALJ. Thus, presumably, the written decision signed by board members included a
recitation of which findings it was adopting.
¶ 24 In the motion to dismiss AFSCME filed in the Fourth District, it cited two cases in which
panels of the First District found that, at least in some circumstances, signing a final written
decision at a closed meeting violates the Open Meetings Act even if it is done after a vote is
taken at an open meeting. See Baldermann, 2015 IL App (1st) 140482, ¶ 37; Howe, 2013 IL App
(1st) 122446, ¶¶ 25-26. Both panels held that the underlying administrative actions were not
valid final decisions. Baldermann, 2015 IL App (1st) 140482, ¶ 39; Howe, 2013 IL App (1st)
122446, ¶ 32. We note that both cases involved additional procedural irregularities that
supported the panels’ decisions. Baldermann, 2015 IL App (1st) 140482, ¶¶ 35-36; Howe, 2013
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IL App (1st) 122446, ¶ 32. However, the Howe court used broad language in holding “that the
written decision must be prepared and provided to each board member at or before the time the
Board votes to take a final action.” Howe, 2013 IL App (1st) 122446, ¶ 25; see also Baldermann,
2015 IL App (1st) 140482, ¶ 37 (following Howe on this point). Both panels concluded that, as a
result, they lacked jurisdiction to review the decisions. Baldermann, 2015 IL App (1st) 140482,
¶ 39; Howe, 2013 IL App (1st) 122446, ¶ 32.
¶ 25 As stated previously, AFSCME argued in the Fourth District that the ILRB ruling at issue
was not a valid final administrative decision under Baldermann and Howe, thereby depriving the
appellate court of jurisdiction to consider the appeal filed there by CMS. Accepting this
argument and applying it to this case would mean that we do not have jurisdiction over this case
either.
¶ 26 We need not determine whether the procedure followed in this case fully complied with
the Open Meetings Act. For the reasons that follow, we find that, even assuming the proceedings
did not fully comport with the Open Meetings Act’s requirements, the ILRB’s decision was a
final administrative decision, and it was not inherently null and void.
¶ 27 The Open Meetings Act provides two alternative mechanisms for individuals to seek
redress for violations (or anticipated violations) of its requirements. Any individual may file a
petition in court, alleging that a public body has not complied with the requirements of the Open
Meetings Act or that there is probable cause to believe a public body will hold proceedings that
do not comply. 5 ILCS 120/3(a) (West 2014). The trial court has the discretion to “grant such
relief as it deems appropriate.” 5 ILCS 120/3(c) (West 2014). The court has the authority to
declare “null and void any final action taken at a closed meeting in violation” of the Open
Meetings Act. Id. However, that is not the only type of relief the court may grant. It can instead
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grant an injunction barring future violations or order the public body to make the minutes of any
closed meetings available to the public. Id. As an alternative, any individual seeking redress for a
violation may file a request for review with a “Public Access Counselor,” established as part of
the office of the Attorney General. 5 ILCS 120/3.5(a) (West 2014). After review, the Attorney
General must issue a binding opinion. If the Attorney General concludes that a violation has
occurred, the opinion can direct the public body to take appropriate action. 5 ILCS 120/3.5(e)
(West 2014).
¶ 28 As these procedures indicate, administrative actions taken in violation of the Open
Meetings Act are ordinarily voidable; they are not automatically void. That is, a declaration that
an action or decision is null and void is a remedy that must be requested and granted. Moreover,
declaring an action or decision null and void is considered an “extreme remedy”; it is not a
remedy that will be granted in all cases. See People ex rel. Graf v. Village of Lake Bluff, 321 Ill.
App. 3d 897, 908 (2001), rev’d on other grounds, 206 Ill. 2d 541, 544 (2003).
¶ 29 Likewise, we do not believe that a failure to comply with the requirements of the Open
Meetings Act will ordinarily prevent an administrative decision from being deemed “final.” In
this regard, we note that the circumstances before us are markedly different from those involved
in Howe and Baldermann. As noted earlier, those cases involved multiple procedural flaws in
addition to the fact that the final written orders were signed in closed meetings. In Howe, a
member of a board considering an injured paramedic’s application for duty disability benefits
made a motion to grant the application, and the board voted against that motion. However, there
was no indication that the board members ever actually voted on a motion to deny the application
before issuing a written decision denying the benefits. Howe, 2013 IL App (1st) 122446, ¶¶ 13-
14. In Baldermann, the agency’s written decision did not include all of the findings it was
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required to make. Baldermann, 2015 IL App (1st) 140482, ¶ 36. While these flaws may have
justified finding that the administrative decisions at issue in those cases were not final decisions,
we do not believe the same result is warranted here.
¶ 30 We express no opinion on whether the procedures followed in this case violated the Open
Meetings Act. We also express no opinion on whether a declaration voiding the decision would
be an appropriate remedy in the event that the ILRB’s procedures were found to violate that Act.
We conclude only that the decision of the ILRB constitutes a final administrative decision, which
we have jurisdiction to review.
¶ 31 We next consider CMS’s motion to remand this matter to the ILRB without first
addressing the merits. CMS notes that AFSCME itself cannot challenge the validity of the
decision under the Open Meetings Act because the 60-day time limit for doing so has passed.
See 5 ILCS 120/3(a), 3.5 (West 2014). However, it points out that any individual may file a
request for review with the Public Access Counselor within 60 days after discovering the
violation of the Open Meetings Act as long as the individual does so within two years after the
alleged violation occurred. 5 ILCS 120/3.5(a) (West 2014). Under this provision, CMS contends,
any union members or member of the public who was not previously aware of the decision could
file a request for review up until January 22, 2018. CMS further contends that if such a request is
successful, the Attorney General could nullify the ILRB’s January 2016 decision, which would
make our decision in this case moot. We are not persuaded.
¶ 32 CMS’s argument in favor of remand is based upon multiple layers of speculation. It
requires us to assume that (1) some individual will file a request for review, (2) the Attorney
General will find that a violation has occurred, and (3) the extreme remedy of declaring the
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decision null and void will be imposed. Each of these possibilities is highly speculative. We
decline to remand this matter to the ILRB on the basis of speculative possibilities.
¶ 33 We now turn our attention to the merits of AFSCME’s petition for review. AFSCME
argues that it presented sufficient evidence to warrant a hearing on both its claim that CMS
committed an unfair labor practice under section 10(a)(4) of the Labor Relations Act by
unilaterally changing a term of employment and its claim that CMS committed an unfair labor
practice under section 10(a)(1) by threatening to require employees who go on strike for any part
of a pay period to pay the employer’s share of their health insurance premiums for the entire pay
period. Both CMS and the ILRB argue that the ILRB properly exercised its discretion in
reaching the opposite conclusions and that the FAQ posting was protected as free speech under
section 10(c). CMS also argues that AFSCME forfeited its claims of section 10(a)(1) and section
10(a)(4) violations because it did not amend its charge to include those claims. We agree with
AFSCME.
¶ 34 Our standard of review is informed by the fact that this matter was dismissed at the
investigatory stage. Under the Labor Relations Act, when the ILRB receives an unfair labor
charge, its first duty is to investigate the charge to determine whether a hearing is warranted. 5
ILCS 315/11(a) (West 2014); Michels v. Illinois Labor Relations Board, 2012 IL App (4th)
110612, ¶ 44. At this stage, the role of the ILRB is similar to that of a grand jury—that is, it may
call witnesses, assess their credibility, and draw reasonable inferences from the evidence in order
to determine whether there is sufficient evidence to warrant a hearing. Michels, 2012 IL App
(4th) 110612, ¶ 44. If the ILRB finds any issues of fact or law sufficient to require a hearing, it
issues a complaint setting forth those issues. Id. The matter then proceeds to a hearing. 5 ILCS
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315/11(a) (West 2014). If the ILRB does not find that the charge presents issues that warrant a
hearing, it will dismiss the charge. Michels, 2012 IL App (4th) 110612, ¶ 44.
¶ 35 Where, as here, the ILRB dismisses an unfair labor charge because it finds insufficient
evidence to warrant a hearing, we review its decision under the deferential abuse-of-discretion
standard. Id. ¶ 45. We will find an abuse of discretion if the ILRB’s decision is arbitrary,
“exceed[s] the bounds of reason,” or “ignore[s] recognized principles of law.” American
Federation of State, County & Municipal Employees v. Schwartz, 343 Ill. App. 3d 553, 559
(2003). As in all administrative review cases, the findings of fact supporting the dismissal order
are considered prima facie true and correct, and we will not set them aside unless they are
against the manifest weight of the evidence. Abrahamson v. Illinois Department of Professional
Regulation, 153 Ill. 2d 76, 88 (1992).
¶ 36 In assessing whether the ILRB ignored recognized principles of law, however, our review
is somewhat less deferential. Although we generally accord deference to the ILRB’s
interpretation of the statutes it administers, we are not required to accept its interpretation. City of
Burbank v. Illinois State Labor Relations Board, 128 Ill. 2d 335, 345 (1989). We also note that,
due to the parallels between section 10 of the Labor Relations Act (5 ILCS 315/10 (West 2014))
and section 8 of the National Labor Relations Act (29 U.S.C. § 158 (2012)), we may consider
federal administrative and judicial circumstances interpreting the National Labor Relations Act.
City of Burbank, 128 Ill. 2d at 345. With these principles in mind, we turn to the contentions of
the parties.
¶ 37 We will first address CMS’s forfeiture argument. CMS contends that AFSCME forfeited
arguments on both its section 10(a)(1) and section 10(a)(4) claims because the charge was not
amended to include these claims. We disagree.
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¶ 38 The Labor Relations Act gives the ILRB, its members, and hearing officers appointed by
the ILRB the discretion to amend an unfair labor complaint at any time before a final decision is
issued. 5 ILCS 315/11(a) (West 2014). Such amendments may be made either on the motion of a
party or sua sponte. Forest Preserve District of Cook County v. Illinois Labor Relations Board,
369 Ill. App. 3d 733, 746 (2006) (citing 80 Ill. Adm. Code 1220.50(f) (2003)). The complaint
may be amended to add allegations not included in the original 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.’ ” Id. at 746-47 (quoting Service Employees International
Union, Local 73, 20 PERI ¶ 85 (ILRB State Panel 2004)). The complaint may be amended to
conform to evidence presented if the amendment would not cause prejudice to any party. Id. We
note that the instant case was dismissed without a complaint being issued, but we believe the
same principles apply to the ILRB’s decision to consider all three issues.
¶ 39 In this case, we find that the allegations of all three claims are closely related to the
allegations in the original charge and all three claims involve the same underlying set of
circumstances. The charge cited both section 10(a)(1) and section 10(a)(2), but did not cite
section 10(a)(4). Also, the charge did not specifically allege that the policy of requiring union
members to pay the employer’s share of their premiums for any entire pay period in which they
go on strike constituted a unilateral change or that it acted as a threat against striking, although it
did allege that the policy was posted online at a time when the parties were negotiating a new
collective bargaining agreement and, as noted, the existence of the policy itself was a key part of
all three claims.
¶ 40 We also find that CMS was not prejudiced by Executive Director Mlynski’s decision to
consider all three claims. As she noted in her recommended order, CMS had actual notice of the
16
claims. Significantly, CMS responded to all three arguments during the administrative
proceedings.
¶ 41 We note that the authority cited by CMS in support of its forfeiture argument is
distinguishable. See Fraternal Order of Police, Chicago Lodge No. 7 v. Illinois Labor Relations
Board, 2011 IL App (1st) 103215, ¶¶ 27-30. There, the First District upheld the ILRB’s finding
that a union forfeited a claim. The union never asked for the complaint to be amended to include
the claim, and its attorney objected to hearing testimony related to that claim, arguing that the
testimony was not relevant because the claim was not at issue. Id. ¶¶ 29-30. The First District
found that the union forfeited the claim by objecting to the testimony. Id. ¶ 30. We therefore
reject CMS’s forfeiture argument, and we find that the ILRB properly exercised its discretion in
considering all three claims. We turn now to AFSCME’s contentions.
¶ 42 We will next consider AFSCME’s contention that the ILRB abused its discretion by
dismissing the unfair labor charge because the charge raised a factual question concerning
whether the policy described in the FAQ amounted to a unilateral change to a term or condition
of employment during contract negotiations. We agree.
¶ 43 The applicable law is not in dispute. The Labor Relations Act requires public employers
and unions to bargain collectively over the terms and conditions of employment. 5 ILCS 315/7
(West 2014). Refusal by either party to bargain in good faith constitutes an unfair labor practice.
5 ILCS 315/10(a)(4), (b)(4) (West 2014). An employer violates this requirement—and therefore
commits an unfair labor practice—when it makes a unilateral change to a term or condition of
employment that is the subject of collective bargaining while the parties are involved in contract
negotiations. Katz, 369 U.S. at 743-47; Vienna School District, 162 Ill. App. 3d at 506. In this
case, there is no dispute that health insurance is a term of employment that is covered under the
17
parties’ collective bargaining agreements. The question is whether the policy described in the
FAQ represents a change in policy that occurred during contract negotiations. More precisely,
the question is whether the policy existed before it was posted on the website, which
undisputedly occurred while the parties were negotiating a new contract.
¶ 44 On the record before us, there is little evidence on this question and no evidence that
resolves the question. The record consists of the unfair labor charge, the parties’ e-mail
correspondence with the board member investigating the charge, CMS’s letter responding to the
charge, and the exhibits submitted by each party. AFSCME alleged that the policy was first
communicated to it when the FAQ was posted in June 2015. CMS did not dispute this allegation.
It alleged that the policy existed prior to being posted in the FAQ section of the website,
regardless of whether AFSCME or its members were aware of the policy. CMS further alleged
that the policy was previously followed during a strike by employees of Northeastern Illinois
University, while AFSCME alleged that its research showed that the policy was not followed
during that strike. Neither party provided any documentation to support its allegations
concerning the 2004 strike.
¶ 45 The only documentary evidence in the record on this question is the chart of pay codes
submitted by CMS and a section of the employee benefits handbook submitted by AFSCME. As
noted earlier, the chart of pay codes shows that striking employees were previously responsible
for paying 100% of their health insurance premiums during a strike. Significantly, however, the
chart is silent as to any employee responsibility for health insurance premiums during the
remainder of any pay period in which employees strike. The employee benefits handbook does
not address the health insurance benefits of striking workers at all. Thus, the documentary
evidence available does not conclusively answer the salient question.
18
¶ 46 We note that apparently Michael Provines, the board member who investigated the claim,
did not find these documents conclusive either. As we discussed earlier, he asked CMS’s
attorney whether the pay code for striking workers applied only during the strike or for the
remainder of the pay period. The question was necessary precisely because the answer could not
be found in the available evidence. Counsel asserted in response that the code had always applied
the entire pay period, even if a strike lasted only one day. However, the allegation of a party’s
attorney in an e-mail is not evidence. For these reasons, we believe the ILRB’s finding that there
was no question of fact to be resolved was against the manifest weight of the evidence.
¶ 47 We acknowledge that, as noted earlier, the ILRB has authority to hear the testimony of
witnesses and make credibility determinations during the investigatory stage. See Michels, 2012
IL App (4th) 110612, ¶ 44. Here, however, no witnesses testified, neither party made allegations
that were inherently implausible, and the limited documentary evidence available was
inconclusive. Under these circumstances, there was nothing upon which a reasonable fact finder
could base a credibility determination, and in fact, the administrative decision did not include
any explicit credibility determinations. For these reasons, we believe it was arbitrary, and
therefore unreasonable, to accord more credence to the allegations of CMS than those of
AFSCME.
¶ 48 Finally, we acknowledge that AFSCME had the burden of demonstrating that there was
enough evidence to warrant a hearing on this issue. However, it is difficult to prove a negative.
Thus, expecting a union to be able to produce evidence of the nonexistence of an employer’s
policy not previously communicated to it without additional, more formal proceedings is
likewise unreasonable. For these reasons, we find that the ILRB abused its discretion in failing to
find that there is a question of fact to be resolved that warrants a hearing.
19
¶ 49 We next consider AFSCME’s argument that the policy acts as a threat to dissuade
employees from striking. AFSCME argues that the ILRB ignored recognized principles of law in
concluding that the policy was not coercive and dismissing the claim. We agree.
¶ 50 Under section 10(a)(1) of the Labor Relations Act, it is an unfair labor practice for an
employer “to interfere with, restrain[,] or coerce public employees in the exercise” of any right
protected under the Labor Relations Act, including the right to strike. 5 ILCS 315/10(a)(1) (West
2014). An employer’s message or conduct is “coercive” within the meaning of this provision if it
“ ‘reasonably tends to coerce employees in the exercise of their rights, regardless of whether it
does, in fact, coerce.’ ” Chicago Transit Authority v. Illinois Labor Relations Board, 386 Ill.
App. 3d 556, 572-73 (2008) (quoting National By-Products, Inc. v. National Labor Relations
Board, 931 F.2d 445, 451 (7th Cir. 1991)). The question is whether, in light of all of the
surrounding circumstances, employees could reasonably conclude that their employer is
threatening them with economic reprisal in the event of a strike. National Labor Relations Board
v. Brookwood Furniture, 701 F.2d 452, 459 (5th Cir. 1983).
¶ 51 Here, the ILRB found that the policy at issue might dissuade employees from engaging in
a strike. It found, however, that the policy was not coercive because it was similar to CMS’s
policy of not paying the salaries of striking employees during a strike, a policy which was not
challenged by AFSCME. This conclusion overlooks a crucial distinction between the two
policies—the policy concerning salaries is limited to the duration of the strike, while the policy
concerning health insurance premiums is not. This difference is significant because an employer
is not required to subsidize a strike. Thus, withholding wages and benefits during a strike
generally does not constitute an unfair labor practice. See In re General Electric Co., 80
20
N.L.R.B. 510, 511 (1948). The issue in this case is the denial of a benefit before and after a
strike.
¶ 52 The National Labor Relations Board (NLRB) addressed a far more analogous situation in
In re Pride Ambulance Co., 356 N.L.R.B. 1023 (2011). There, an employer sent a notice to
striking employees, informing them that it would stop paying its share of their health insurance
premiums if they did not return to work. The notice further informed them that unless they
returned to work or purchased coverage under COBRA, they would be subject to “re-enrollment
requirements,” including a 90-day waiting period during which they would have no coverage. Id.
at 1024. The NLRB held that by threatening to impose the 90-day waiting period, the employer
violated section 8(a)(1) of the National Labor Relations Act (29 U.S.C. § 158(a)(1) (2006)).
Pride Ambulance, 356 N.L.R.B. at 1028. The NLRB noted that “decades of Board precedent”
supported its holding. Id. at 1026. In particular, it pointed to its prior decision in In re Cone
Brothers Contracting Co., 158 N.L.R.B. 186 (1966). There, the NLRB explained that “ ‘strike
activity does not entail acceptance after the strike of a smaller quantum of vested job rights and
privileges.’ ” (Emphasis omitted.) Pride Ambulance, 356 N.L.R.B. at 1027 (quoting Cone
Brothers Contracting, 158 N.L.R.B. at 188). It also looked to precedent in emphasizing that
imposing a waiting period for health insurance coverage on employees who return from a strike
“ ‘unjustly penalize[s] strikers’ ” for going on strike. Id. (quoting In re Ace Tank & Heater Co.,
167 N.L.R.B. 663, 664 (1967)). The NLRB thus concluded that withholding a benefit from
employees who return to work after a strike is unlawful and threatening to do so constitutes an
unfair labor practice under the federal counterpart of our section 10(a)(1). Id. at 1028.
¶ 53 Both CMS and the ILRB argue that Pride Ambulance and the cases cited therein are
distinguishable from the instant case. CMS argues that those cases are distinguishable because
21
they involve the denial of “accrued benefits.” See In re Texaco, Inc., 285 N.L.R.B. 241, 245-46
(1987) (explaining the requirement of proof that a benefit is accrued on the date on which it is
denied); but see Conoco, Inc. v. National Labor Relations Board, 740 F.2d 811, 814 n.2 (10th
Cir. 1984) (noting that “It is not altogether clear whether accrual versus non-accrual of a benefit
is the key to analyzing these cases.”). CMS explains that health insurance benefits for State
employees are not “accrued” because an employee is eligible for health insurance coverage the
day he or she begins working for the State and ceases to be eligible the day the employee stops
working for the State.
¶ 54 We reject the contention that this feature makes Pride Ambulance distinguishable for two
reasons. First, the test for whether a benefit is “accrued” is simply whether it is “due and
payable” at the time it is denied. Conoco, 740 F.2d at 815; Texaco, 285 N.L.R.B. at 245. Second,
as the NLRB explained in Pride Ambulance, the distinction between accrued and nonaccrued
benefits is relevant only where the employer is withholding a benefit or threatening to withhold
benefits during a strike. Pride Ambulance, 356 N.L.R.B. at 1027.
¶ 55 Similarly, the ILRB argues that these cases are distinguishable because the policies in
those cases were communicated in the context of ongoing labor disputes. We agree that this is a
relevant factor in determining whether employees would reasonably feel coerced. See
Brookwood Furniture, 701 F.2d at 460 (noting that statements found to be coercive were made
“in the context of ‘a vigorous *** antiunion campaign’ ”). We do not agree that this difference
constitutes a bright line rule, however. Such a holding would absolve employers of otherwise-
unlawful threats to withhold benefits from employees before or after a strike as long as they
announce the policy at a time when a strike is not imminent. Such a result is untenable.
22
¶ 56 We acknowledge, however, that there are differences between the circumstances involved
in Pride Ambulance and those involved in this case. The consequences of the reenrollment
period at issue in Pride Ambulance were potentially dire. There, striking employees who
returned to work after the strike were without coverage for a three-month period. A serious
injury or illness during that period could have catastrophic consequences. Here, CMS would
continue to maintain employees’ insurance, but would bill them for the portion of the premiums
it normally pays. In addition, as we have just discussed, the policy here was not announced in the
midst of a labor dispute. All of these circumstances are relevant in assessing the coercive nature
of the policy. See Brookwood Furniture, 701 F.2d at 459. Here, however, the ILRB did not
assess the coercive tendency of the policy. Instead it found that announcing the policy could not
be construed as a threat because it was no different from informing employees that they would
not be paid during a strike. In short, the ILRB overlooked the distinction between informing
employees that a benefit will be lawfully withheld during a strike and threatening to unlawfully
withhold a benefit from employees before and after a strike. We find that by ignoring this
distinction, the ILRB ignored a recognized principle of law.
¶ 57 Finally, we consider the argument of CMS and the ILRB that CMS’s announcement of its
policy was protected as free speech under section 10(c) of the Labor Relations Act (5 ILCS
315/10(c) (West 2014)). That section provides that it is not an unfair labor practice for an
employer to express “any views, argument, or opinion” as long as “such expression contains no
threat of reprisal or force or promise of benefit.” Id. Typically, this provision and its federal
counterpart are implicated when an employer or one of its agents expresses an opinion about the
negative impacts the employer predicts might flow from unionization or a strike. See, e.g.,
National Labor Relations Board v. Gissel Packing Co., 395 U.S. 575, 616-19 (1969); National
23
Labor Relations Board v. River Togs, Inc., 382 F.2d 198, 202 (2d Cir. 1967); Metropolitan
Alliance of Police, Chapter No. 357, 27 PERI ¶ 9 (ILRB State Panel 2011). Here, CMS did not
express any opinions. Rather, it announced its own policy, and AFSMCE has alleged that the
policy itself acts as a threat against going on strike. If AFSCME ultimately prevails on its claim,
section 10(c) will not provide a defense.
¶ 58 For the foregoing reasons, we grant CMS’s two motions to take judicial notice of other
proceedings, we deny CMS’s motion to remand this matter to the ILRB for another public vote
on its existing decision, we reverse the order of the ILRB dismissing the unfair labor charge
without a hearing, and we remand for further proceedings.
¶ 59 Reversed and remanded.
24
2017 IL App (5th) 160046NO. 5-16-0046
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
AMERICAN FEDERATION OF STATE, COUNTY, ) Petition for Review of
AND MUNICIPAL EMPLOYEES, COUNCIL 31, ) an Order of the Illinois
) Labor Relations Board,
Petitioner, ) State Panel.
)
v. )
)
THE ILLINOIS LABOR RELATIONS BOARD and ) No. S-CA-16-007
THE STATE OF ILLINOIS DEPARTMENT OF )
CENTRAL MANAGEMENT SERVICES, )
)
Respondents. )
______________________________________________________________________________
Opinion Filed: November 8, 2017
______________________________________________________________________________
Justices: Honorable Melissa A. Chapman, J.
Honorable Richard P. Goldenhersh, J., and
Honorable Judy L. Cates, J.,
Concur
______________________________________________________________________________
Attorneys Stephen A. Yokich, George A. Luscombe III, Dowd, Bloch, Bennett,
for Cervone, Auerbach & Yokich, 8 South Michigan Avenue, 19th Floor,
Appellant Chicago, IL 60603
______________________________________________________________________________
Attorneys Jeffrey S. Fowler, Lawrence Jay Weiner, Special Assistant Attorneys
for General, Laner Muchin, Ltd., 515 North State Street, Suite 2800,
Appellees Chicago IL 60654 (attorneys for Illinois Department of Central
Management Services); Lisa Madigan, Attorney General, State of
Illinois, David L. Franklin, Solicitor General, Frank H. Bieszczat,
Assistant Attorney General, 100 West Randolph Street, 12th Floor,
Chicago, IL 60601 (attorneys for Illinois Labor Relations Board)
______________________________________________________________________________