County of Cook v. Illinois Local Labor Relations Bd.

Decision Date04 June 1991
Docket NumberNo. 1-90-0039,1-90-0039
Citation158 Ill.Dec. 641,214 Ill.App.3d 979,574 N.E.2d 754
Parties, 158 Ill.Dec. 641 COUNTY OF COOK, Petitioner-Appellant, v. ILLINOIS LOCAL LABOR RELATIONS BOARD, and Illinois Nurses' Association, Respondents-Appellees.
CourtUnited States Appellate Court of Illinois

Cecil A. Partee, State's Atty. of Cook County, Chicago; LaVerne Rolle Saunders, of counsel, for petitioner-appellant.

Neil F. Hartigan, Atty. Gen. and Robert J. Ruiz, Sol. Gen., Chicago; Ann Plunkett-Sheldon, of counsel, for respondent-appellee Illinois Local Labor Relations Board.

Martha A. Garcia, Katz, Friedman, Schur & Eagle, Chicago, for respondent-appellee Illinois Nurses Assn.

Justice DiVITO delivered the opinion of the court:

The Illinois Local Labor Relations Board (the Board) found that the practice of Cook County (the County) of tape-recording the final grievance step before arbitration constituted an unfair labor practice. In this appeal, the County contends that (1) this action was barred by res judicata or collateral estoppel; and (2) the Board erred in finding that the actions of the County constituted an unfair labor practice.

On December 13, 1988, the Illinois Nurses' Association (the Association) filed an unfair labor practice charge with the Board, alleging that the County had violated sections 10(a)(1) and (4) of the Illinois Public Labor Relations Act (Ill.Rev.Stat.1987, ch. 48, pars. 1610(a)(1) and (4)) (the Act) by continuing to tape-record the final grievance step before arbitration. The Board held a hearing concerning this charge on April 11, 1989.

The evidence adduced established that the County and the Association were parties to a collective bargaining agreement effective December 1, 1984, through November 20, 1987. Article 11, section 4 of this agreement provided for a three-step grievance procedure before submission to arbitration; however, in practice, there were actually four steps. They consisted of grievance hearings before (1) the immediate supervisor; (2) the designee of the hospital director; (3) the hospital labor relations unit; and (4) the chief administrative officer/hearing officer. The parties agreed to eliminate the third step during negotiations for the 1984-87 collective bargaining agreement; however, that step was not actually discontinued until some time later. The 1984-87 collective bargaining agreement contained no reference relating to the tape-recording of any step of the grievance procedure.

Notwithstanding the absence of authorization, the County began tape-recording the fourth step of the grievance procedure in 1983. The Association voiced no objection until the County began tape-recording the third step of the grievance procedure. On March 3, 1986, the Association filed a charge against the County, alleging that by tape-recording the third and fourth steps of the grievance procedure and the predisciplinary hearings, the County violated the same sections of the Act as those involved in the instant case. The Association, however, never protested the taping of the fourth step hearings on the record of those hearings. Moreover, the Association did not protest the taping of fourth step grievance hearings to the County in writing until 39 months after the County began recording them, and then it did so only because the County had begun the taping of the third step and predisciplinary hearings. 3 PERI 3013 (ILLRB 1987.)

Following a hearing concerning the 1986 charge, the Board found that the tape-recording of grievance sessions was a non-mandatory subject of bargaining, that is, it was a matter which could be implemented only by mutual agreement of the parties. The Board noted that the tape-recording of these proceedings had a tendency to inhibit the free and open discussion necessary for successful collective bargaining. Nevertheless, the Board found that, by failing to protest the taping of fourth step proceedings (those before the hearing officer) for over three years, the Association had waived any right to bargain over this practice and had acquiesced to it. Regarding the taping of third step proceedings (those before the hospital labor relations unit, which have since been eliminated), the Board found that because the Association immediately protested the practice, its objection was timely and valid. It thus ordered the County to cease taping all grievance proceedings, except for the fourth step, as that had become an established procedure. 3 PERI 3013 (ILLRB 1987.)

Susan Bennett, the Association's chief negotiator for the 1987-90 collective bargaining agreement, testified at the hearing. She stated that between November 5, 1987, and October 10, 1988, the Association and the County met approximately 25 times to bargain over a successor agreement to the 1984-87 contract. During those negotiations, the subject of taping the pre-arbitration grievance sessions was discussed on February 2, March 3, and April 13, 1988. Each time, Association representatives broached the subject.

At the February 2, 1987, session, Bennett informed John Kalchbrenner, Assistant Director of Position Classification for the County, that the Association objected to the County's continued practice of taping the grievance hearings and wanted to bargain on the issue. She told him that the taping of these sessions inhibited discussion and prohibited effective problem-solving. In her opinion, this was particularly detrimental because the meeting with the hearing officer was the last opportunity to resolve the grievance before it was submitted to arbitration.

John Kalchbrenner testified on behalf of the County. He stated that the County began regularly taping the Association grievance meetings with the hearing officer in 1983. He disagreed with Bennett at the February 2 negotiating session, explaining that the County viewed the final step of the grievance process not as a problem-solving session, but as an opportunity for the hearing officer to listen to the facts and render a decision either upholding or overturning the hospital's response to the grievance. He told Bennett that the County needed to record these sessions so that the hearing officer could refer to the tapes when making his decision. Moreover, the taping relieved the hearing officer of taking notes at the hearing, thus enabling him to concentrate on the witnesses and their testimony.

On February 2, 1987, Bennett sent a letter to William Doyle, the County's Chief Administrative Officer, stating that the Association was objecting to the tape-recording of the pre-arbitration grievance hearings and asking that the County bargain over the issue. She further stated that there was "no mutual agreement to the tape recording of any discipline or grievance proceeding" and that the Association would no longer participate in any hearings meetings, or other bargaining proceedings with the County which would be tape-recorded.

Doyle responded in a letter dated February 10, 1988. He stated that, pursuant to the prior decision by the Board, the County had a right to tape-record the pre-arbitration sessions and that the County would continue to do so "unless and until the parties mutually agree to something different." (Emphasis in original.) Doyle also wrote that if the Association refused to participate in grievance meetings on this basis, the County would have "no choice but to proceed with such proceedings ex parte and also explore its options under the Act."

On March 3, 1988, the issue of tape-recording was again raised at a collective bargaining meeting. Bennett told Kalchbrenner at that time that the Association still objected to the taping of grievance hearings, but would participate in the hearings under protest. She also stated that once the new contract became effective, the Association expected the County to cease its tape-recording. Kalchbrenner responded that the County's position remained unchanged.

On April 13, 1988, the parties again discussed the issue at a bargaining session. The same positions were asserted and the meeting ended without either party altering its position on the issue.

On April 20, 1988, Bennett wrote another letter to Doyle, again expressing the Association's objections to the taping of the hearings. She stated the Association's view that its present objection to this practice expressed in negotiations for a new collective bargaining agreement "cancels any implied agreement established by silence over time and practice." Doyle responded by a letter dated May 24, 1988, wherein he reiterated that the Board had previously ruled that tape-recording the final step of the proceedings " 'had become an established practice among the parties' " and that the Association's present objection did not cancel the past practice.

In the next several months following these letters, the issue of tape-recording was not raised by either party. On October 10, 1988, the parties settled on a new collective bargaining agreement, which was to be effective from December 1, 1987, through November 30, 1990. The new contract restated the grievance procedure contained in the 1984-87 agreement and was silent regarding the tape-recording of the pre-arbitration hearings.

The first pre-arbitration grievance hearing to be conducted under the new contract was set for December 2, 1988. On December 1, 1988, Bennett contacted Kalchbrenner and asked that he instruct the County's hearing officer to refrain from tape-recording the hearing. Kalchbrenner refused Bennett's request and said that the County would continue to tape-record the hearings until the Board told it to do otherwise.

The December 2 grievance hearing was taped by the County's hearing officer and the Association participated under protest. In a letter to Kalchbrenner dated December 9, 1988, Bennett...

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