Cmty. Unit Sch. Dist. No. 5 v. Ill. Educ. Labor Relations Bd.
| Decision Date | 05 June 2014 |
| Docket Number | No. 4–13–0294.,4–13–0294. |
| Citation | 12 N.E.3d 120 |
| Parties | COMMUNITY UNIT SCHOOL DISTRICT NO. 5, McLean and Woodford Counties, Illinois, Described in the Administrative Proceedings as McLean County Unit School District No. 5, a/k/a Board of Education of McLean County Unit District No. 5, Petitioner, v. The ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD; and The American Federation of State, County, and Municipal Employees (AFSCME), Council 31, Respondents. |
| Court | United States Appellate Court of Illinois |
Robert B. McCoy, Patrick A. Murphey, and Dennis Triggs (argued), all of Miller, Hall & Triggs, LLC, of Peoria, for petitioner.
Gail E. Mrozowski (argued), of Cornfield & Feldman, of Chicago, for respondent American Federation of State, County, and Municipal Employees.
Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro, Solicitor General, and Sharon A. Purcell (argued), Assistant Attorney General, of counsel), for respondent Illinois Educational Labor Relations Board.
Stanley B. Eisenhammer and John L. DiJohn, both of Hodges, Loizzi, Eisenhammer, Rodick & Kohn LLP, of Arlington Heights, for amicus curiae Illinois Association of School Boards.
delivered the judgment of the court, with opinion.
¶ 1 In April 2013, respondent, the Illinois Educational Labor Relations Board (IELRB), found petitioner, Community Unit School District No. 5, McLean and Woodford Counties, Illinois (District), engaged in unfair labor practices against respondent, the American Federation of State, County and Municipal Employees, Council 31 (AFSCME), with respect to its decision to contract with First Student, Inc. (First Student), for student transportation services. American Federation of State, County, & Municipal Employees, Council 31, & McLean County Unit Dist. 5, 29 PERI ¶ 174 (IELRB 2013) (hereafter McLean County, 29 PERI ¶ 174).
¶ 2 On direct administrative review of the IELRB's order, the District argues (1) the IELRB had no jurisdiction over the parties, (2) the charges against it were preempted by the School Code (105 ILCS 5/1–1 et seq. (West 2010)), (3) the IELRB applied an incorrect standard of law in finding the District committed unfair labor practices, (4) the IELRB's findings were erroneous, and (5) the IELRB's remedy violated state and federal law. We reverse the IELRB's decision.
¶ 4 On May 22, 2012, AFSCME filed an unfair-labor-practice charge with the IELRB against the District, alleging it violated sections 14(a)(1), 14(a)(3), and 14(a)(5) of the Illinois Educational Labor Relations Act (Act) (115 ILCS 5/14(a)(1)
, (a)(3), (a)(5) (West 2010)). AFSCME alleged the District violated the Act by deciding to contract out school bus services in retaliation against the bus drivers and bus monitors for choosing AFSCME as their representative and by failing to bargain in good faith.
¶ 5 On June 15, 2012, the Executive Director of the IELRB issued a complaint and notice of hearing against the District, alleging it had engaged in unfair labor practices regarding its decision to subcontract student transportation work in violation of the Act. The Board of Education of Community Unit School District No. 5 (Board of Education) was not named as a respondent. The Executive Director indicated a hearing would take place on August 20 and 21, 2012, before an administrative law judge (ALJ).
¶ 6 On June 20, 2012, the District filed its answer and affirmative defenses. In part, the District argued the complaint for hearing failed to name the governing entity educational employer, i.e., the Board of Education, as respondent under section 2(a) of the Act (115 ILCS 5/2(a)
(West 2010)) and thereby failed to state a basis for relief. The District also asserted no service had been made upon the educational employer under section 2(a).
¶ 7 On June 25, 2012, the IELRB, by and through its counsel, the Attorney General filed a verified complaint for injunctive relief and a petition for temporary restraining order and preliminary injunction in the circuit court against the District, seeking to enjoin the District from effectuating an agreement with First Student to subcontract the District's student transportation services.
¶ 8 On July 17, 2012, the District filed a motion for temporary or preliminary order of prohibition, seeking to prohibit the IELRB from taking any action on any administrative complaint or charges arising out of the District's decision to contract with First Student. On July 17 and 18, 2012, the circuit court held a hearing on the motions and granted the preliminary injunction. The court denied the District's motion for an order of prohibition and its motion for stay of the order granting the injunction.
¶ 9 On appeal, this court affirmed, finding the circuit court did not abuse its discretion in granting the petition for the preliminary injunction where the IELRB raised a fair question of an unfair labor practice by the District. Illinois Educational Labor Relations Board v. Board of Education of Community Unit School District No. 5, 2012 IL App (4th) 120690–U, 2012 WL 7060827
.
¶ 10 In August and September 2012, the ALJ conducted hearings on this matter. In January 2013, the ALJ issued her recommended decision and order with her findings of fact, which we will rely on in setting forth the facts that follow. McLean County, 29 PERI ¶ 174 (ALJ decision). Prior to October 2011, a meet-and-confer committee was certified by the IELRB as the exclusive bargaining representative of the bus drivers and bus monitors employed by the District. The District and the meet-and-confer committee were parties to a collective-bargaining agreement that expired in August 2011. In or around August 2011, the IELRB held a representation election between AFSCME and the meet-and-confer committee. On October 20, 2011, the IELRB issued an order and opinion certifying AFSCME as the exclusive bargaining representative of the approximately 215 bus drivers and bus monitors.
¶ 11 The District serves approximately 13,500 students in McLean and Woodford Counties in 25 different buildings. Due to the size of the District, most of these students must be transported to school. The District employed bus drivers and bus monitors as part of its in-house transportation department. The District considered subcontracting its transportation services in 2003 and 2009. In 2009, the District contracted with an outside consultant, who ultimately recommended the District contract out bus services. However, the District did not do so at that time.
¶ 12 State funding had decreased by 23% during the three years prior to the hearing. At the same time, district enrollment had increased, which created a greater demand for transportation services. As the District grew, the District's transportation department experienced difficulty in hiring drivers to cover all the routes. In addition, absenteeism became a problem. A lack of staffing led to frequent late buses and occasional drop-off violations. The District employed 8 to 10 substitute drivers to fill in for absent drivers, but often there were too many open routes for the substitute drivers to cover. Prior to October 2011, the District's practice was to use office personnel and bus mechanics with school bus permits to cover bus routes that were not staffed due to absences and driver shortages. However, this arrangement resulted in less time for mechanics to maintain buses.
¶ 13 In 2010 and 2011, District administrators and the Board of Education regularly received complaints from parents and the public regarding the District's transportation services. Board of Education member Gail Briggs testified she heard complaints about students' late arrival at school, students missing class time, students not arriving home on time, and students dropped off at the wrong places. Although this was not the first time the transportation department had experienced problems, the testimony indicated the problems in 2011 were more severe than in prior years. In October 2011, District superintendent Gary Niehaus asked and received from the Board of Education authority to spend up to $500,000 in emergency busing services. The District subsequently contracted out a portion of its transportation services to Illinois Central School Bus Company to avoid having to use other employees to cover bus routes.
¶ 14 In October 2011, Renee Nestler, AFSCME's staff representative, sent the Board of Education a demand to bargain a new collective-bargaining agreement for the bus drivers and bus monitors. In December 2011, Nestler received a phone message from Dennis Triggs, the Board of Education's outside counsel, informing her that the District was considering the possibility of outsourcing the entire transportation department. Nestler later sent a letter to Triggs demanding to bargain over the decision. Nestler then spoke with Curt Richardson, the District's in-house counsel, who informed her the District was considering outsourcing the entire transportation department because of operational issues, including absenteeism, turnover, and frequent late buses. Richardson also informed Nestler that economics were not the primary reason the District was considering outsourcing. Nestler stated AFSCME wished to bargain over the District's decision to outsource.
¶ 15 The parties met for negotiations on December 12, 2011. When asked the reason behind the District's decision to consider subcontracting the entire transportation department, Triggs answered the decision was based on operational concerns, including attendance, turnover, and retention of drivers. Triggs also stated the District's administration spent a disproportionate amount of time dealing with the transportation department. On December 14, 2011, the Board of Education unanimously adopted a resolution authorizing and directing the superintendent to solicit bids for third-party transportation services to address the operational issues and determine any cost savings. The...
To continue reading
Request your trial