Illinois Nurses Ass'n v. Illinois State Labor Relations Bd.

• Decision Date: 30 March 1990
• Docket Number: No. 1-88-2514,1-88-2514
• Citation: 554 N.E.2d 404,196 Ill.App.3d 576
• Parties: , 143 Ill.Dec. 469, 135 L.R.R.M. (BNA) 2623 ILLINOIS NURSES ASSOCIATION, an Unincorporated Association, Petitioner-Appellant, v. ILLINOIS STATE LABOR RELATIONS BOARD, an Administrative Agency, and State of Illinois Departments of Central Management Services and Corrections, Respondents-Appellees (Correctional Medical Systems, Inc., Intervenor-Appellee).
• Court: United States Appellate Court of Illinois

Page 404

554 N.E.2d 404

196 Ill.App.3d 576, 143 Ill.Dec. 469,

135 L.R.R.M. (BNA) 2623

ILLINOIS NURSES ASSOCIATION, an Unincorporated Association Petitioner-Appellant, v. ILLINOIS STATE LABOR RELATIONS BOARD, an Administrative Agency, and State of Illinois Departments of Central Management Services and Corrections, Respondents-Appellees (Correctional Medical Systems, Inc., Intervenor-Appellee).

No. 1-88-2514.

Appellate Court of Illinois First District, Fifth Division.

March 30, 1990.

Sally A. Stix, Chicago, for petitioner-appellant.

Neil F. Hartigan, Atty. Gen., Robert J. Ruiz, Sol. Gen., Valerie J. Peiler, Asst. Atty. Gen., of counsel, Chicago, for respondents-appellees.

David W. Miller, Baker & Daniels, Indianapolis, Ind., Melbourne A. Noel, Jr., Laser, Schostok, Kolman & Frank, Chicago, for intervenor-appellee.

Justice MURRAY delivered the opinion of the court:

This is an appeal by plaintiff, Illinois Nurses Association (INA) from a decision of defendant, Illinois State Labor Relations Board (Board) which refused to take jurisdiction of an unfair labor practice charge made by the INA. Additional defendants include the State of Illinois, its Department of Central Management Service, Department of Corrections (DOC). Correctional Medical Systems (Systems) intervened for the limited purpose of contesting the Board's jurisdiction. Jurisdiction to hear this cause on direct appeal from the Board is provided by the Illinois Public Labor Relations Act (Act). (Ill.Rev.Stat.1985, ch. 48, par. 1611.) Even though the case involves nurses at downstate Shawnee Correction Center, near Vienna, the Act authorizes an appeal to the appellate court of a judicial district in which the appellant resides or transacts business. Ill.Rev.Stat.1985, ch. 48, par. 1611(e).

This is the second time this case has been before this court. In Illinois Nurses Association v. The State Labor Relations Board (1987), 156 Ill.App.3d 841, 109 Ill.Dec. 295, 509 N.E.2d 1307, in which Systems was not a party, the Board dismissed INA's unfair labor practice charges for lack of jurisdiction. This court vacated the Board's dismissal order and remanded the matter for further evidentiary proceedings pertaining to the determination of the Board's jurisdiction. Upon remand, an evidentiary hearing was held in September 1987. The hearing officer's recommended order issued in April 1988. He concluded that, although the State and Systems were joint employers, Systems was not a public employer within the meaning of section 3(o) of the Act. Section 3(o) defines "public employer" as including the State of Illinois and its political subdivisions, units of local governments or school districts, agencies of these entities, "and any person acting within the scope of his or her authority, express or implied, on behalf of such entities in dealing with its employees." (Ill.Rev.Stat.1985, ch. 48, par. 1603(o).) The term "person" includes associations and corporations. Ill.Rev.Stat.1985, ch. 48, par. 1603(l ).

The hearing officer determined that the Board lacked jurisdiction because Systems was not an agent of the State and thus, could not be a public employer. INA excepted to the finding of no agency and Systems excepted to the joint employer finding. The Board, based on its own findings of fact, held that since DOC did not exercise any meaningful control over any significant aspects of the nurses' employment, it was not a joint employer with Systems. The Board also held that, pursuant to the Act, a private employer was subject to the Board's jurisdiction only if it was acting as an agent of a public employer and concluded that Systems, as the sole employer, could only be an agent if the nurses were State employees, which they were not. Accordingly, the Board upheld the hearing officer's dismissal of INA's unfair labor practice charge because of a lack of jurisdiction.

It is undisputed that INA is the exclusive bargaining representative for nurses employed by the State, including nurses employed by the State to work at its correctional centers. In 1985, DOC entered into a non-bid contract with Systems, a private corporation licensed to do business in Illinois and based in St. Louis, Missouri. Systems, described in the contract as an independent contractor, has contracts to provide health services to correctional facilities in 16 states, including contracts with nine Illinois correctional facilities. Between April 1985 and June 1986, Systems was compensated on a cost-plus plan and provided all health care staff at Shawnee except for the Health Care Unit Administrator, who was a DOC employee. (Since July 1987, this position has been staffed by a Systems employee.) Included among Systems staff are doctors, nurses, a dentist, psychiatrist and psychologist, a pharmacist, technicians, and clerical staff. Since July 1986, the contracts have provided that Systems is to be compensated on the basis of the number of inmates at Shawnee. Quarterly performance level adjustments may be made, as determined by DOC and Systems and approved by the Warden, if there are any deficiencies in the agreed-upon staffing level. All health equipment costing over $100 is owned by the State.

Systems' staff is required to represent DOC with local groups. Systems solicits, interviews, and hires the nurses. DOC has the right to approve the "initial and continued employment" of nurses and sets the minimum qualifications for them, e.g., Illinois license, one-year experience, CPR certification with correctional nursing experience preferred. The contract also states certain details that the interviewer should focus on when questioning job applicants. Prior to starting work, each person hired by Systems must pass a DOC background check (for security purposes). The final hiring selection is subject to DOC's approval. (The Board found that DOC did not exercise this right but rather limited its involvement to overseeing security and professional licensing matters.)

The contract also gives DOC complete discretion to remove a nurse from Shawnee, although only Systems can terminate a staff member. If Systems does not remove the nurse from Shawnee at DOC's request, DOC can lock her out. In one case, Systems terminated a nurse after DOC conducted an investigation which resulted in the assistant warden requesting her termination. Nurses' personnel files must be kept at Shawnee; Systems keeps duplicate files in its St. Louis office.

DOC sets the minimum staffing and scheduling requirements, and specifies how many hours a week a nurse may work, approves all hours that have been worked, and the length of the meal period. DOC provides the meals on site (for security reasons). Requests for all absences and overtime must be processed according to DOC requirements and procedures. DOC requires that all nurses must be evaluated annually in accordance with applicable state rules. Although, in fact, Systems conducts the evaluations, DOC must verify them. DOC must approve all hours worked which must be kept on DOC timekeeping forms. DOC requires all nurses to wear white uniforms and its identification badges which identify them as contractual employees. New nurses must attend 40 hours of orientation give by DOC at the State of Illinois Training Academy in Springfield. Further, each year DOC requires all nurses to complete 40 hours of in-service training.

The contract states that nurses must comply with Administrative Regulations and Administrative Directives, as well as policies and procedures of DOC and Shawnee. The directives for the health care unit were written by DOC Medical Director and approved by the Director of Corrections. From these directives, each institution develops its own Institutional Directives; at Shawnee, these were mostly written by a DOC employee and approved by the warden. Pursuant to these directives, the contract provides for a Health Care Services Review Committee which is made up on both DOC and Systems administrators. Its function is to review inmate complaints, infirmary care, mental health responses, health records, etc. Meeting minutes are given to the warden. The Shawnee nurses manual "is the how-to guide for organizing, planning and administering" health care, and incorporates applicable directives in addition to other details as to how the work is to be performed. The manual was written by a Systems employee, but after DOC's approval, became the property of DOC.

Nurses are hired as Systems employees. Systems determines their pay rate and issues the checks from St. Louis. It provides all benefits, e.g., health insurance, retirement plan. Vacation time, sick leave, etc. are established by Systems. Only Systems can transfer, promote, discipline, and terminate a nurse. Systems pays unemployment and workers' compensation insurance premiums and all required employee taxes. However, the contract provides that Systems has a right to "seek representation and indemnification from the Attorney General's Office."

The findings of facts by the hearing officer and the Board were similar for the most part, although the hearing officer's...