Board of Regents of Regency Universities System v. Illinois Educational Labor Relations Bd.

Decision Date03 March 1988
Docket NumberAFL-CI,R,No. 4-87-0351,4-87-0351
Parties, 117 Ill.Dec. 799, 45 Ed. Law Rep. 1190 BOARD OF REGENTS OF the REGENCY UNIVERSITIES SYSTEM, State of Illinois, Petitioner, v. ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD, State of Illinois, and University Professionals of Illinois, Local 4100, Illinois Federation of Teachers, IFT/AFT/espondents.
CourtUnited States Appellate Court of Illinois

Richard J. Coffee, II, Springfield, for petitioner.

Stephen A. Yokich, Cornfield & Feldman, Chicago, for University Professionals.

Neil F. Hartigan, Atty. Gen., Chicago, Shawn W. Denny, Sol. Gen., Bret A. Rappaport, Asst. Atty. Gen., for IELRB; Randi Hammer Abramsky, General Counsel, Illinois Educational Labor Relations Bd., Chicago, of counsel.

R. Theodore Clark, Jr., Seyfarth, Shaw, Fairweather & Geraldson, Chicago, amicus curiae.

Presiding Justice GREEN delivered the opinion of the court:

On February 14, 1984, University Professionals of Illinois, Local 4100, Illinois Federation of Teachers, IFT/AFT/AFL-CIO (UPI), filed a petition with the Illinois Educational Labor Relations Board (IELRB) pursuant to section 7(c)(1) of the Illinois Educational Labor Relations Act (Act) (Ill.Rev.Stat.1985, ch. 48, par. 1707(c)(1)) requesting an election by which it might obtain certification as the exclusive bargaining representative for certain employees at Sangamon State University (SSU), Illinois State University and Northern Illinois University all under the governance of the Board of Regents of the Regency Universities System, State of Illinois (Board of Regents). The American Association of University Professors (AAUP) then filed a similar petition.

Elections were ultimately held at the three institutions. At those other than SSU, the majority voted that no exclusive bargaining representative be created. No review has been sought from certification by IELRB of those results. On the other hand, at SSU, a dispute developed as to whether persons holding various positions were entitled to vote. After a hearing on challenges before a hearing officer in regard to the propriety of certain ballots, IELRB entered an order on April 17, 1987, sustaining challenges to some and overruling others. This order was formalized by a further order and opinion filed August 5, 1987. (Board of Regents of State of Illinois, 3 Pub.Employee Rep. (Ill.) par. 1098, case Nos. 84-0008, 84-0012 (Illinois Educational Labor Relations Board, Aug. 5, 1987).) On April 20, 1987, IELRB issued a further order certifying UPI as the exclusive collective-bargaining representative for the SSU unit. The Board of Regents has taken administrative review to this court (Ill.Rev.Stat.1985, ch. 48, par. 1716(a); 107 Ill.2d R. 335(a)). We have allowed the Board of Trustees of the University of Illinois and the Board of Trustees of Southern Illinois University to file a joint brief amicus curiae in support of the Board of Regents on one of the issues presented. We affirm the certification but reverse a portion of the order of April 17, 1987, concerning challenges to ballots.

After the filing of the petitions, the parties entered into stipulations which resolved many questions as to who was in the proposed bargaining unit at SSU and would thereby be eligible to vote at the election. The parties agreed to defer determining the status of four directors of four public affairs centers at SSU. After conducting hearings during the months of September through December 1984, a hearing officer for IELRB issued a recommended decision and order of election on July 15, 1985. On May 30, 1986, IELRB issued an opinion and order setting forth the makeup of the bargaining unit at the various institutions and ordering that an election be held. Board of Regents of State of Illinois, 2 Pub.Employee Rep. (Ill.) par. 1069, case Nos. 84-0008, 84-0012 (Illinois Educational Labor Relations Board, May 30, 1986).

By the terms of section 8 of the Act (Ill.Rev.Stat.1985, ch. 48, par. 1708), the ballot at the election gave the voters at SSU the opportunity to vote for either (1) representation by UPI, (2) representation by AAUP, or (3) no representation. At SSU, 144 ballots were cast, 7 of which were challenged. The tally of the remaining 137 ballots was as follows:

For UPI 69

For no representation 54

For AAUP 14

For a choice to prevail, section 8 requires a labor organization to receive the vote of a majority of the ballots cast. As the 69 votes for UPI was not a majority of the 144 possible votes, the ruling in regard to the 7 challenged ballots is dispositive of the outcome of the election.

The IELRB order of April 17, 1987, sustained the challenge to four of the ballots and overruled the challenge to three of them. The propriety of the ruling sustaining the challenge to three of the ballots is not disputed. The fourth ballot, to which the challenge was sustained, was that of Barbara Hartman. That ruling is one of the issues on review. One of the directors of the public affairs centers did not vote. The other three ballots in issue are those of the other three center directors who voted under an agreement that their ballots be withheld from the original count. The other issue in the case is IELRB's ruling permitting these ballots to be counted.

Our resolution of the two issues could have four possible results, only one of which could possibly change the result of the election. In its order of April 17, 1987, ruling on the challenges, IELRB ordered the ballots cast by the center directors to be opened. The count was two votes for UPI and one for no representation. If we hold, as IELRB requests, that the directors' ballots should be counted but Hartman's should not, UPI would have 71 votes out of 140 cast and a majority. If we hold that both the center directors' and Hartman's ballots are to be counted, UPI would have at least 71 votes out of 141 which would still be a majority. If we hold, as the Board of Regents requests, that the center directors' votes should not count but Hartman's should count, UPI would have only a certain 69 votes out of 138. Thus, Hartman's vote would be crucial. If she voted for UPI, it would prevail. If she voted for another choice, no majority would exist, and a runoff election would be required. Ill.Rev.Stat.1985, ch. 48, par. 1708.

We find a fourth alternative to be the proper disposition. We hold IELRB properly sustained the challenge to Hartman's ballot but improperly permitted the vote of the three center directors. Thus, the original count, by which UPI received 69 of 138 votes and a majority, prevails. Accordingly, the IELRB correctly certified UPI as the exclusive collective-bargaining representative for the SSU unit.

We consider first the question of the Hartman ballot. The Board of Regents had originally objected to Hartman's voting but, apparently, withdrew its challenge after she had voted, whereupon UPI challenged the ballot. We do not agree with the Board of Regents that UPI's challenge was untimely. When one party changes its position on a matter, fairness ordinarily requires an adverse party to have an opportunity to also do so. Accordingly, we will determine the question on its merits.

The IELRB determination on the Hartman ballot was based upon the combined effect of the IELRB rules and the parties' stipulation as to the makeup of the proposed bargaining unit. In order to be eligible to vote in an election regarding selection of an exclusive bargaining representative, IELRB rules require an employee to not only be in an eligible position for the payroll period immediately prior to the election but also to have been in an eligible position during the payroll period immediately prior to the order directing the holding of the election. (80 Ill.Adm.Code 1110.130(a) (1985).) The parties here had stipulated that "[f]ull time tenured or tenure-track faculty should be included" in the bargaining unit and that "full time" is defined as "an employee who has an appointment of .50 or more."

Undisputedly, for the payroll period immediately before the election, Hartman had a full-time appointment as an associate professor of Human Development Counseling. However, for the university year from July 1, 1985, to June 30, 1986, which included the payroll period before the order of May 30, 1986 (Board of Regents of State of Illinois, 2 Pub.Employee Rep. (Ill.) par. 1069, case Nos. 84-0008, 84-0012 (Illinois Educational Labor Relations Board, May 30, 1986)), directing that an election be held, she held a position described in her contract as "Faculty Associate to the [Vice President for Academic Affairs] for Graduate Studies and Associate Professor of Human Development Counseling." The record is clear that Hartman was directed to spend approximately two-thirds of her time as a faculty associate and one-third of her time as an associate professor. In its order of April 17, 1987, IELRB determined that although Hartman was in a tenure-track position in the 1985-86 university year, she did not have a "faculty appointment" for 50% of her work. Thus, IELRB held Hartman failed to meet one of the requirements for voting in the election.

The Board of Regents asks us to reject the validity of the IELRB rule which requires the employee to have been an eligible voter during the payroll period immediately preceding the order directing the election, whereas here, the order was entered on May 30, and the election was not held until the following October 1. (80 Ill.Adm.Code 1110.130(a) (1985).) The Board of Regents asserts the long time span renders the rule arbitrary and unreasonable. We disagree. The rule serves the purpose of inhibiting any side of such a contested issue from affecting the makeup of the voting body after the election is directed.

The hearing officer described the parties' stipulation in her recommended decision and order of July 15, 1985. She also stated in that document the...

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