AMERICAN FEDERATION, COUNCIL 31 v. Schwartz

• Decision Date: 26 September 2003
• Docket Number: No. 5-02-0363.,5-02-0363.
• Citation: 343 Ill. App.3d 553,797 N.E.2d 1087,278 Ill.Dec. 169
• Parties: AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 31, Plaintiff-Appellee, v. Michael S. SCHWARTZ, as Director of Central Management Services, and The Department of Central Management Services, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

797 N.E.2d 1087

343 Ill. App.3d 553

278 Ill.Dec. 169

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 31, Plaintiff-Appellee, v. Michael S. SCHWARTZ, as Director of Central Management Services, and The Department of Central Management Services, Defendants-Appellants.

No. 5-02-0363.

Appellate Court of Illinois, Fifth District.

September 26, 2003.

Joseph M. Gagliardo, Laner, Muchin, Dombrow, Becker, Levin & Tominberg, Ltd., Chicago; Frederick J. Hess, Lewis, Rice & Fingersh, L.L.C., Belleville, for Appellants.

Melissa J. Auerbach, Gilbert Feldman, Cornfield and Feldman, Chicago, for Appellee.

Justice DONOVAN delivered the opinion of the court:

I. FACTS

A. Procedural History

The American Federation of State, County and Municipal Employees, Council 31 (AFSCME), brought this action for an injunction in aid of arbitration against the State of Illinois Department of Central Management Services and its director, Michael S. Schwartz, in his official capacity (collectively referred to as CMS). On March 5, 2002, AFSCME filed its original complaint for declaratory and injunctive relief, pursuant to Illinois's Uniform Arbitration Act (710 ILCS 5/1 et seq. (West 2002)) and sections 8 and 16 of the Illinois Public Labor Relations Act (5 ILCS 315/8, 16 (West 2002)). AFSCME alleged that CMS's actions to implement a statewide one-day furlough program violated the terms of the parties' collective bargaining agreement (Agreement). AFSCME asked that the one-day statewide furlough be enjoined pending a decision by an arbitrator on the grievance it had filed under the Agreement. The complaint also asked that CMS be ordered to go to immediate arbitration on AFSCME's grievance.

In response, CMS filed a motion pursuant to the Uniform Arbitration Act and asked the circuit court to compel AFSCME to grieve and arbitrate its disputes involving alleged breaches of the Agreement. CMS also asked the court to stay the injunction hearing. CMS objected to the entry of an order compelling immediate arbitration.

The circuit court of St. Clair County entered a temporary restraining order (TRO) on March 8, 2002, restraining the implementation of the one-day furlough plan, but the court granted CMS's objection to AFSCME's request for an order compelling immediate arbitration. CMS filed an interlocutory appeal from the TRO. On March 19, 2002, this court affirmed the TRO. American Federation of State, County & Municipal Employees, Council 31 v. Schwartz, No. 5-02-0181 (March 19, 2002) (unpublished order pursuant to Supreme Court Rule 23(c) (166 Ill.2d R. 23(c))).

Following the entry of the TRO, CMS amended its furlough plan to provide for permanent layoffs in seven State agencies and began to implement the amended plan. In response, AFSCME amended its grievance to encompass the permanent layoffs.

On April 29, 2002, the circuit court denied CMS's motion to compel arbitration and stay the preliminary injunction hearing. On the same date, the circuit court granted AFSCME leave to amend its complaint to add claims regarding the permanent layoffs. The amended complaint sought to have the statewide one-day furlough and the permanent layoffs enjoined pending a decision by an arbitrator on the grievances AFSCME had filed under the Agreement.

A preliminary injunction hearing was held on May 3, 2002, and on May 15, the circuit court entered a preliminary injunction "enjoining the Defendants from implementing their plan to require all AFSCME bargaining unit employees statewide to be subject to a one[-]day temporary and/or indefinite layoff/furlough[,] pending a decision by the arbitrator." On May 24, 2002, CMS brought this interlocutory appeal as of right to challenge the April 29, 2002, and May 15, 2002, orders. We affirm.

B. Collective Bargaining Agreement

AFSCME and CMS are parties to a collective bargaining agreement for the period between July 1, 2000, and June 30, 2004, which contains a grievance procedure culminating in final and binding arbitration. The Agreement contains a detailed layoff article that restricts CMS's authority to use temporary layoff provisions to implement a statewide furlough program. Article 20 of the Agreement expressly provides as follows: "Temporary layoff provisions contained herein shall not be used for implementing a statewide furlough program which would affect all State agencies without the Employer first notifying and negotiating with the Union over such intent." The same article also requires that layoffs, including temporary layoffs, "shall be by position classification" and "in inverse order of seniority." Additionally, CMS is prevented from temporarily or permanently laying off any "certified or probationary employee within a position classification within an appropriate organizational unit * * * until any temporary or emergency employee, within such position classification[,] is terminated noncertified." The Agreement further limits CMS's authority to "employ, or cause to be employed through a firm or agency as a subterfuge to [the Agreement], individuals through the use of personal service contracts when the services performed under such contracts are within the scope of bargaining unit work."

A supplemental collective bargaining agreement prevents CMS from laying off bargaining-unit employees in the Department of Human Services "within a work location * * * until all temporary, contractual, provisional, emergency employees, Illinois Work Experience Program Workers, Green Thumb Workers, Community Work Experience Program Workers, or other non[]profit workers in that work location have been laid off/terminated." A second supplemental agreement precludes CMS from laying off bargaining-unit employees in the Department of Public Aid "within a work location * * * until all temporary, contractual, provisional, emergency employees, Illinois Work Experience Program Workers, Summer Youth Program Workers, Unemployed Parent Work Employment Workers, Green Thumb Workers, Community Work Experience Program Workers, or other workers in that work location have been laid off/terminated." The Agreement requires notifications to both AFSCME and employees targeted for a layoff and an opportunity for employees to exercise bumping and transfer rights in lieu of layoffs.

C. One-Day Furlough Program

On December 4, 2001, CMS notified AFSCME that it intended to implement a one-day furlough plan that would require approximately 44,000 AFSCME bargaining-unit employees statewide to take a day off without pay. Between December 18, 2001, and February 7, 2002, the parties met for the purpose of negotiating a furlough program. No agreement to implement a furlough program was reached during the course of those negotiations. On February 7, 2002, CMS ceased negotiations and informed AFSCME that it had decided to use the temporary layoff provisions of the Agreement to implement a statewide furlough program. On February 14, 2002, AFSCME filed a grievance protesting CMS's implementation of the plan as violating the Agreement's provisions as previously set forth. AFSCME requested that the grievance be scheduled for immediate arbitration in order that an arbitrator's decision on the grievance could be rendered prior to March 15, 2002, the date on which the furloughs were scheduled to begin. In its request, AFSCME emphasized "the immediacy of the situation, as well as the high degree of potential Employer liability." CMS declined AFSCME's request to schedule the grievance for immediate arbitration. (CMS objected to AFSCME's bypassing step 3, agency/department head, and step 4A, prearbitration meeting.)

D. Permanent Layoffs

The grievance alleged three types of contract violations with respect to permanent layoffs: (i) violations of the substantive rights of the employees subject to a layoff that determine who will eventually be laid off or transferred and who will exercise their seniority to remain employed, (ii) violations of the procedural rights of the employees and AFSCME with respect to matters such as the contractually specified notice intended to enable the employees to exercise their contract options when targeted for a layoff, and (iii) violations of AFSCME's rights to protect its dues-paying members against a layoff while non-bargaining-unit employees are being retained. The alleged violations relate to numerous provisions in the Agreement as follows:

(i) Article 1, the recognition article; article 4, section 3, the fair share article; and the "Personal Services Contracts Memorandum" of understanding by the use of temporary employees and employees under personal service contracts to perform bargaining-unit work that should be performed by bargaining-unit employees.

(ii) Article 14, section 3, which has limits on the time during which work may be assigned to a temporary employee before a position must be filled with a permanent employee.

(iii) Article 20, the layoff article, which requires the following under section 2(e): "No certified or probationary employee within a position classification within an appropriate organizational unit shall be laid off until any temporary or emergency employee, within such position classification[,] is terminated noncertified."

(iv) Article 20, which contains a requirement for notices to both AFSCME and employees targeted for a layoff so that the employees can exercise their bumping and transfer options in lieu of a layoff under the contract.

(v) Article 20, which requires that layoffs be by seniority.

(vi) Supplemental agreements with the Department of Human Services and the Department of Public Aid requiring that numerous categories of non-bargaining-unit employees be terminated prior to the layoff of bargaining-unit employees.

II. STANDARD OF REVIEW

The decision to grant or deny a preliminary injunction rests within the sound discretion of the trial court, and a reviewing court will not disturb that decision absent a clear abuse of discretion. Desnick v. Department of...