APPEAL from the Circuit Court of Sangamon County; the Hon.
SIMON L. FRIEDMAN, Judge, presiding.
MR. JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
This appeal presents some cryptic and complex questions regarding the relationship of certain constitutional guaranties to collective bargaining in the public sector.
Plaintiffs, 40 in number, filed a suit for declaratory judgment in the circuit court of Sangamon County pursuant to section 57.1 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 57.1) against the Directors of, and the Departments of, Personnel and Rehabilitation Services of the State of Illinois. They alleged that they were all teachers at the Illinois School for the Visually Impaired (ISVI) located at Jacksonville and that their personnel classification was that of educator. It was further alleged that teachers at the Illinois School for the Deaf (ISD), also located at Jacksonville, likewise were classified as educators and that plaintiffs at ISVI and the teachers at ISD possessed substantially the same qualifications and performed substantially the same work. Further allegations were that prior to 1977 teachers at ISVI and ISD were treated alike in terms of salary, employment benefits and working conditions, but that since 1977 such treatment has differed and that plaintiffs are paid substantially less than the teachers at ISD.
Plaintiffs then alleged that such difference violated the due process and equal protection rights guaranteed to them by the fourteenth amendment to the United States Constitution and by article I, section 2, of the 1970 Illinois Constitution.
Their prayer for relief was that the trial court enter judgment declaring that they were entitled to equal treatment with other similarly situated employees of the State of Illinois.
Defendants filed as their responsive pleading a motion to dismiss under sections 45 and 48(1)(i) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, pars. 45 and 48(1)(i)). The heart of the motion was contained in two affidavits attached. One was made by the Chief Labor Negotiator of the Illinois Department of Personnel and the other by the Labor Relations Administrator of the Illinois Department of Rehabilitation Services. In summary, these affidavits established that plaintiffs were members of a collective bargaining unit designated as RC-27, represented by the American Federation of State, County and Municipal Employees as their exclusive bargaining agent; that an agreement concerning wages, hours, and other terms and conditions of employment for unit RC-27 had been negotiated with the Federation by the Department of Personnel and that the agreement had been ratified by the members of unit RC-27. The agreement became effective July 1, 1977, and provided for a salary increase of $65 per month across the board for all members of unit RC-27.
In response, an affidavit of one of the plaintiffs was filed in which the existence of unit RC-27 was admitted together with the membership of plaintiffs in the unit. Also admitted was the existence of the collective bargaining agreement. It was further averred that unit RC-27 comprises about 2,000 professional employees of the State of Illinois, that none of the other 1,950 members perform duties similar to those of the teachers at ISVI and ISD, and that the teachers at ISD are not members of unit RC-27.
After extensive briefing being submitted, the trial court allowed the motions to dismiss with prejudice and this appeal followed. While the parties raise and discuss in their briefs several affirmative matters such as estoppel, laches, exhaustion of administrative remedies, our consideration of the matter will be limited to the complaint and the motions filed by the defendants together with the supporting affidavits and the counteraffidavit of one of the plaintiffs.
• 1 We also note at the outset that while the complaint alleged due process violations, this matter is only peripherally touched upon in plaintiffs' brief. The principal basis of their argument in both the brief and at orals was on equal protection. Therefore, we consider the due process argument waived under Supreme Court Rule 341(e)(7) (73 Ill.2d R. 341(e)(7)).
A brief sketch of the background against which this controversy stands may be helpful in understanding the issue. Although importuned on many occasions to enact legislation authorizing collective bargaining for State employees, the Illinois General Assembly did not take such action. On September 4, 1973, then-Governor Walker promulgated Executive Order No. 6, which established the Office of Collective Bargaining and authorized public employee collective bargaining. He found as his authority for the order section 9(7) of the Personnel Code (Ill. Rev. Stat. 1969, ch. 127, par. 63b109(7)) which provides that one of the duties of the Director of Personnel is "[t]o conduct negotiations affecting pay, hours of work, or other working conditions of employees subject to this Act."
The Director of Personnel thereafter issued extensive rules governing that establishment of bargaining units and other matters relating to collective bargaining. Briefly, a unit is established as follows: 30 percent, or more, of the employees may petition for certification; the Office of Collective Bargaining (OCB) then determines whether the proposed unit is appropriate under standards set forth in Executive Order No. 6; if OCB determines that the proposed unit is appropriate, an election by secret ballot is then held under its supervision; an employee organization or union may then be certified as the exclusive bargaining representative if it receives a majority of votes in the election. A collective bargaining contract is then negotiated and submitted to the membership of the unit. A majority vote of the unit will ratify the contract.
In the rather sparse record before us, plaintiffs nowhere deny that unit RC-27 was properly formed nor that the collective bargaining agreement was in any way defective. The record is silent as to whether plaintiffs voted in favor of the unit or in favor of the agreement.
• 2 Neither party has raised any challenge to Executive Order No. 6, and, for the purposes of this opinion, we shall assume its constitutional validity and that collective bargaining in the public sector has a legal basis in this State. The question then presented by plaintiffs' complaint is whether the fruits of that bargaining contain constitutional imperfections. It is a reversal of the familiar fruit-of-the-poisonous-tree doctrine found in the area of the criminal law. If the tree be wholesome, can the fruit be poisonous?
There is an extreme poverty of authority in this area. Equal protection cases abound in situations where the State is acting unilaterally by imposing laws upon its citizens. A few examples will suffice to demonstrate the thesis: discrimination in the law against unwed fathers (Stanley v. Illinois (1972), 405 U.S. 645, 31 L.Ed.2d 551, 92 S.Ct. 1208); discrimination against illegitimates in matter of inheritance (Trimble v. Gordon (1977), 430 U.S. 762, 52 L.Ed.2d 31, 97 S.Ct. 1459); discrimination against females in ...