American Federation of State, County and Mun. Employees, AFL-CIO v. State Labor Relations Bd.

• Decision Date: 27 October 1989
• Docket Number: AFL-CI,P,No. 1-88-3091,1-88-3091
• Citation: 137 Ill.Dec. 742,190 Ill.App.3d 259,546 N.E.2d 687
• Parties: , 137 Ill.Dec. 742, 135 L.R.R.M. (BNA) 2224 AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES,etitioner-Appellant, v. STATE LABOR RELATIONS BOARD, State of Illinois, Departments of Central Management Services and Corrections, Respondents-Appellees.
• Court: United States Appellate Court of Illinois

Page 687

546 N.E.2d 687

190 Ill.App.3d 259, 137 Ill.Dec. 742,

135 L.R.R.M. (BNA) 2224

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, Petitioner-Appellant, v. STATE LABOR RELATIONS BOARD, State of Illinois, Departments of Central Management Services and Corrections Respondents-Appellees.

No. 1-88-3091.

Appellate Court of Illinois First District, Sixth Division.

Oct. 27, 1989.

Neil F. Hartigan, Atty. Gen., Chicago (Robert J. Ruiz, Sol. Gen.; William D. Frazier, of counsel), for respondent-appellee, Ill. State Labor Relations Bd.

Sidley & Austin, Chicago (John G. Levi, Pamela B. Strobel, Neil L. Brilliant, of counsel), for respondent-appellee, State of Ill., Depts. of Cent. Management Services and Corrections.

Cornfield & Feldman, Chicago (Steven A. Yokick, of counsel), for petitioner-appellant, AFL-CIO.

Winston & Strawn, Chicago (Gregory J. Malovance, William G. Miossi, of counsel), amicus curiae.

Justice QUINLAN delivered the opinion of the court:

The American Federation of State, County, and Municipal Employees (AFSCME) appeals a final order of the Illinois State Labor Relations Board (ISLRB). On September 29, 1988, ISLRB ruled that the Illinois Departments of Central Management Services (CMS) and Corrections (IDOC or Corrections) were compelled to bargain with AFSCME about the impact of employee discipline under the new policy for drug testing but not about the institution of drug testing itself. ISLRB allowed IDOC to institute the new policy but ordered both parties to bargain further on the subject of employee discipline. AFSCME now appeals directly to the appellate court, claiming court jurisdiction under section 11 of the Illinois Public Labor Relations Act (Ill.Rev.Stat.1987, ch. 48, par. 1611(c)) and Supreme Court Rule 335 (107 Ill.2d R. 335).

On this appeal AFSCME asserts:

(1) The ISLRB ruling that the IDOC policy to implement employee drug testing was a managerial right and not a mandatory subject of bargaining is unreasonable and should be reversed.

(2) The ISLRB finding that IDOC did not waive its right to institute a drug testing program for corrections employees during the term of the current contract is not supported by substantial evidence and should be reversed.

The AFSCME dispute over drug testing began when AFSCME and CMS negotiated a contract to cover 37,000 State employees in eight bargaining units for the contract period of July 1, 1986 to June 30, 1989. AFSCME and CMS had discussed possible drug testing (blood and urine) for all State employees under AFSCME. After substantial disagreement, CMS withdrew its proposals.

As far as the record shows, the parties did not bargain over CMS's withdrawal or discuss whether CMS had waived drug testing for the duration of the contract. The parties did, however, place a waiver "zipper clause" in article XXXIV, section 4 of their master collective bargaining agreement. In this clause, the parties acknowledged their mutual "unlimited right and opportunity to make demands and proposals with respect to any subject or matter within the area of collective bargaining * * * and that the understandings and agreements arrived at by the parties after the exercise of that right and opportunity are set forth in this Agreement."

In January, 1988, a manager from CMS informed an AFSCME official that IDOC wanted to begin drug testing for the roughly 9,000 employees in the Corrections unit. AFSCME did not question the State's right to implement a drug testing program but did want to help shape the terms. Therefore, during January and February, AFSCME met with CMS and IDOC four times to consider and negotiate many aspects of a testing policy. Parties agreed to limit testing to situations where IDOC has a "reasonable suspicion" that the employee was a user or trafficker. Parties also agreed on such items as the procedure for urine testing, the allocation of costs, and confidentiality. However, they still had not agreed on the important topic of discipline measures for employees who either refuse to take the test or who take it and test positive.

On March 1, 1988, AFSCME challenged the new policy by filing a charge with ISLRB under section 11 of the Illinois Public Labor Relations Act (ACT). (Ill.Rev.Stat.1987, ch. 48, pars. 1601-1627.) AFSCME alleged unfair labor practices on the grounds that IDOC and CMS had not engaged in all the necessary mandatory bargaining for the new drug testing policy.

Both the hearing officer and later the Board itself reached their decisions by reviewing the AFSCME complaint as a problem of applying two contradictory sections of the Illinois Public Labor Relations Act (Act). To resolve the problem, both tribunals balanced section 7, on the duty to bargain, with section 4, on management rights. The four relevant provisions provide that:

(1) The public employer has a duty to "negotiate in good faith with respect to wages, hours, and other conditions of employment, not excluded by Section 4 of this Act * * *." Ill.Rev.Stat.1987, ch. 48 par. 1607.

(2) Employers are "not * * * required to bargain over matters of inherent managerial policy" which include the "selection of new employees, examination techniques and direction of employees." Ill.Rev.Stat.1987, ch. 48, par. 1604.

(3) Employers are required to "bargain collectively" over "policy matters directly affecting wages, hours and terms and conditions of employment as well as impact thereon * * * " if employee representatives request bargaining. Ill.Rev.Stat.1987, ch. 48, par. 1604.

(4) Furthermore, refusing to bargain collectively and in good faith constitutes an unfair labor practice. Ill.Rev.Stat.1987, ch. 48, par. 1610.

By law, security is a concern of managerial policy for IDOC. The department must "establish rules and regulations for the protection of the person and property of employees of the Department and every committed person." (Ill.Rev.Stat.1987 ch. 38, par. 1003-7-4.) One of the important present security concerns in state prisons involves the drug traffic there. IDOC presented undisputed evidence that both visitors and employees brought drugs into the prison, that the majority of inmates were or had been drug users, and that some inmates died of overdoses while in prison.

Employee conduct is a key aspect of the security problem. At the initial hearing, the Bureau of Inspections and Audits (BIA) presented details about employee drug use and trafficking among inmates. In a voluntary survey conducted among Corrections' trainees in 1985, almost 18% admitted they were involved with illegal drugs. In the six-month period before IDOC suggested the new program, BIA documented 21 drug or alcohol related activities involving employees. BIA ran 19 "sting" operations between July 1986 and Spring 1988 to catch employees who deliver drugs to inmates. In 18 of these operations, the employee dealers were also drug users. As of Spring 1988, BIA was investigating 217 employees for possible drug dealing at Corrections facilities.

Each Corrections unit also polices employee drug trafficking among inmates. Routinely, the units conduct canine sniffs of cars in the lot and of the employees themselves. Furthermore, if investigators have "reasonable suspicions," they conduct pat downs and strip searches of employees. These measures, however, have not eliminated the drug traffic from employee to inmate in the state prisons.

On May 19, 1988, the ISLRB hearing officer issued a recommended decision and order stating that the IDOC plan to implement a drug testing policy was an inherent managerial right, not a mandatory subject for bargaining. However, he suspended the drug testing for current employees until the parties bargained over the effects of the policy on these employees. Both parties appealed to the Board. On September 29, 1988, ISLRB issued a decision and order modifying the earlier recommendations so that IDOC could implement its policy even while it continued to bargain over the subject of discipline for employees who refuse to take the test or who take it and test drug-positive.

AFSCME's first issue on appeal is that the ISLRB Board made an unreasonable decision when it found that the new IDOC plan for employee drug testing is not a mandatory subject for bargaining between the employer IDOC (or CMS) and the employees under AFSCME. To reach its decision, ISLRB applied a balancing test with two statutory provisions, one on the employer's duty to bargain and the other on the employer's right to effect managerial policies unilaterally. AFSCME now challenges ISLRB's interpretation of the statute sections, its use of the balancing test, and its application of facts within that test.

The Supreme Court and Illinois courts grant "substantial weight and deference to an interpretation of an ambiguous statute by the agency charged with the administration and enforcement of the statute." (Illinois Consolidated Telephone Co. v. The Illinois Commerce Commission (1983), 95 Ill.2d 142, 152, 69 Ill.Dec. 78, 83, 447 N.E.2d 295, 300 (citing Gladstone Realtors v. Village of Bellwood (1979), 441 U.S. 91, 107, 99 S.Ct. 1601, 1612, 60 L.Ed.2d 66, 81).) Furthermore, in labor cases, the rulings of the National Labor Relations Board (NLRB) and the Federal courts when these bodies construe the National Labor Relations Act are persuasive authority for similar provisions in the State Act. East Richland Education Association, IEA-NEA v. Illinois Educational Labor Relations Board (1988), 173 Ill.App.3d 878, 902, 124 Ill.Dec. 63, 77, 528 N.E.2d 751, 765.

When the Supreme Court reviewed an NLRB decision about whether a particular topic was a subject for mandatory bargaining, the court used a standard of "considerable deference" for that review. (Ford Motor Co. v. National Labor Relations Board (1979), 441 U.S. 488, 495, 99 S.Ct. 1842, 1848, 60 L.Ed.2d 420, 427.) Following Ford, the Fourth District in Illinois used "substantial" or "considerable" deference for...