Dept. of Cent. Management Services v. Bd., 4-06-0083.

• Decision Date: 02 May 2007
• Docket Number: No. 4-06-0083.,4-06-0083.
• Citation: 373 Ill. App.3d 242,869 N.E.2d 274
• Parties: The STATE of Illinois, DEPARTMENT OF CENTRAL MANAGEMENT SERVICES (DEPARTMENT OF CORRECTIONS), Petitioner-Appellant, v. The STATE of Illinois, LABOR RELATIONS BOARD, STATE PANEL; Jackie Gallagher, Michael Hade, Charles Hernandez, Rex Piper, and Letitia Taylor, the Members of Said Board and Panel in Their Official Capacity Only; and The American Federation of State, County and Municipal Employees, Council 31, Respondents-Appellees.
• Court: United States Appellate Court of Illinois

869 N.E.2d 274

373 Ill. App.3d 242

The STATE of Illinois, DEPARTMENT OF CENTRAL MANAGEMENT SERVICES (DEPARTMENT OF CORRECTIONS), Petitioner-Appellant, v. The STATE of Illinois, LABOR RELATIONS BOARD, STATE PANEL; Jackie Gallagher, Michael Hade, Charles Hernandez, Rex Piper, and Letitia Taylor, the Members of Said Board and Panel in Their Official Capacity Only; and The American Federation of State, County and Municipal Employees, Council 31, Respondents-Appellees.

No. 4-06-0083.

Appellate Court of Illinois, Fourth District.

May 2, 2007.

Justice COOK delivered the opinion of the court:

This case arises out of an impasse in negotiations between petitioner, the State of Illinois Department of Central Management Services (Department of Corrections) (hereinafter CMS), and respondent American Federation of State, County, and Municipal Employees, Council 31 (hereinafter AFSCME). The negotiations involved the impact on security employees of CMS's closure of several correctional facilities. AFSCME was the exclusive representative of the employees at issue. Both parties agree that the employees in question are "security employees" as defined by the Illinois Public Labor Relations Act (Act) (5 ILCS 315/3(p) (West 2002)). Because security employees are afforded access to certain dispute-resolution procedures under section 14 of the Act, both parties often refer to the security employees as section 14 employees (5 ILCS 315/14 (West 2002)). This case centers around the scope of section 14 dispute-resolution procedures afforded to section 14 employees, specifically whether section 14 authorizes "midterm interest arbitration," i.e., arbitration in the middle of a contract as opposed to its beginning or end.

On December 21, 2005, respondent Illinois Labor Relations Board (Board) issued a decision and order finding that (1) section 14 authorizes "interest arbitration" for disputes involving section 14 employees in "midterm" disputes and not merely in "initial" or "successor" disputes; and (2) the collective-bargaining agreement relevant to this case did not contain a waiver of the statutory right to midterm interest arbitration for security employees. In keeping with these findings, the Board held that CMS violated sections 10(a)(1) and 10(a)(4) of the Act when it refused to proceed to impasse resolution pursuant to section 14 of the Act (5 ILCS 315/10(a)(1), (a)(4) (West 2002)). The Board ordered CMS to cease and desist from refusing to proceed to impasse resolution pursuant to section 14. The Board did not allow immediate access to interest arbitration but instead ordered the parties to design a process for the resolution of the dispute under section 14(p), with any disagreements subject to the Board's compliance (5 ILCS 315/14(p) (West 2002)). CMS appeals the Board's findings. American Federation of State, County, and Municipal Employees, Council 31, 22 Pub. Employee Rep. (Ill.) par. 10, Nos. S-CA-03-002, S-CA-03-048, S-CA-03-052, S-CA-03-054, S-CA-03-056, S-CA-03-064, S-CA-03-068, S-CA-03-090, S-CA-03-092 (Illinois Labor Relations Board, State Panel, December 21, 2005) (hereinafter 22 Pub. Employee Rep. (Ill.) par. 10). We affirm.

I. BACKGROUND

At all times relevant, a bargaining agreement between CMS and AFSCME was in effect. The bargaining agreement was extensive in nature and was part of a long-standing relationship of bargaining agreements between the parties. The bargaining agreement contained a general no-strike provision, which applied to all employees, both section 14 security employees and nonsection 14 employees. In contrast, by statute, section 14 employees are generally prohibited from striking and nonsection 14 employees generally have the right to strike. 5 ILCS 315/17 (West 2002) (general right-to-strike provision). As is required when a bargaining agreement contains a no-strike clause, the bargaining agreement also contained a grievance-arbitration provision, which applied to all employees in the bargaining unit and provided for final and binding arbitration of disputes concerning the administration or interpretation of the bargaining agreement. See 5 ILCS 315/8 (West 2002) (bargaining agreements that contain no-strike clauses must also contain grievance-arbitration provisions). The bargaining agreement also contained a memorandum of understanding in its appendix, which provided that, within 60 days of the employer's announcement of a correctional-facility closure, the parties "agree to negotiate over such matters that may impact upon employees * * * on questions of wages, hours[,] and other conditions of employment." Accordingly, in 2002, CMS and AFSCME entered into negotiations concerning the impact that the closure of nine correctional facilities would have on security employees.

The parties were unable to reach full agreement on several points concerning the closure of the facilities. The subjects on which the parties reached impasse included issues relating to the filling of vacancies and transfer, recall, and seniority rights of the affected employees. It appears that these issues were not specifically covered by the bargaining agreement. AFSCME requested that the parties enter into "interest arbitration" to resolve the remaining issues. AFSCME thought that it had a statutory right to interest arbitration under section 14 of the Act, entitled "Security Employee, Peace Officer[,] and Fire Fighter Disputes," which delineates interest-arbitration procedures of security employees (5 ILCS 315/14 (West 2002)). CMS refused to enter into interest arbitration, and implemented its "final offer" as determined by the 2002 negotiations, including all the terms upon which the parties were unable to agree.

In the July through October 2002 period, AFSCME filed nine unfair-labor-practice charges against CMS, each alleging that CMS violated sections 10(a)(1) and 10(a)(4) of the Act because CMS refused to proceed to interest arbitration (5 ILCS 315/10(a)(1), (a)(4) (West 2002)). These sections state that an employer commits unfair labor practice under the Act when it restrains an employee's ability to exercise the rights guaranteed by the Act (5 ILCS 315/10(a)(1) (West 2002)) and when it "refuse[s] to bargain collectively in good faith with a labor organization which is the exclusive representative of public employees in an appropriate unit, including, but not limited to, the discussing of grievances with the exclusive representative" (5 ILCS 315/10(a)(4) (West 2002)). AFSCME's nine complaints were ultimately consolidated into one. AFSCME withdrew No. 5-CA-03-048. In June 2004, the case went before an administrative law judge (ALJ), who found in favor of AFSCME. The ALJ ordered the parties to proceed to "interest arbitration" under section 14. American Federation of State, County, & Municipal Employees, Council 31, 22 Pub. Employee Rep. (Ill.) par. 10, Nos. S-CA-03-002, S-CA-03-052, S-CA-03-054, S-CA-03-056, S-CA-03-064, S-CA-03-068, S-CA-03-090, S-CA-03-092 (Illinois Labor Relations Board, State Panel, ALJ recommended decision and order, April 25, 2005).

CMS filed exceptions, and the case then went before the Board. Both parties stipulated that there was "no issue" as to whether this dispute should be "deferred" to the grievance-arbitration procedures contained in the bargaining agreement. By this, we presume the parties meant that the existence of the grievance-arbitration provision contained within the bargaining agreement did not (1) require a finding that the current dispute should be resolved through the contractual grievance-arbitration procedures rather than the statutory procedures, or (2) preclude the Board from addressing whether the Act also authorized midterm interest arbitration. AFSCME stated in closing that the issue of whether good-faith bargaining had occurred was a statutory issue and was not to be determined by the contractual grievance-arbitration procedures. CMS argued that AFSCME did not have a statutory right to midterm interest arbitration because, according to CMS's interpretation of the statute, section 14 gave security employees the right to interest arbitration only for disputes arising during the formation of "initial" or "successor" contracts (i.e., comprehensive bargaining agreements), not for "midterm" disputes (i.e., an ancillary dispute arising while the bargaining agreement is still in effect) that were not the subject of contract "reopeners" (i.e., where the parties agree to "reopen" the agreement or designated part of the agreement). In the alternative, CMS argued that AFSCME contractually waived any statutory right to midterm interest arbitration.

The Board found that the Act allowed for midterm interest arbitration and declined to follow CMS's narrow interpretation of section 14. Instead, the Board relied largely on the general policy language in section 2 of the Act, which states that all collective-bargaining disputes involving security employees shall be submitted to impartial arbitrators (5 ILCS 315/2 (West 2002)). The Board also held that AFSCME did not contractually waive its statutory right to access midterm interest arbitration in this matter. The Board ordered CMS to desist from "[r]efusing to proceed to impasse resolution, pursuant to [s]ection 14 of the Act." 22 Pub. Employee Rep. (Ill.) par. 10, at 28. The Board's decision differs slightly from that of the ALJ because the ALJ ordered the parties to proceed to interest arbitration. However, the Board stated that "[s]ection 14 of the Act does not contemplate immediate access to interest arbitration, without some sort of mediation attempt, unless the parties agree to such a process." 22 Pub. Employee Rep. (Ill.) par. 10, at 29. Therefore, pursuant to section 14(p), the Board ordered the parties to design a process for the resolution of this dispute, with any disagreements subject to the Board's compliance (5 ILCS 315/14(p) (West 2002)). Section 14(p) states that "[n]otwithstanding the provisions of [...