509 N.E.2d 1307, 156 Ill. App. 3d 841, 109 Ill. Dec. 295 1987.IL.760
Petition for review of order of Illinois State Labor Relations Board.
JUSTICE LORENZ delivered the opinion of the court. SULLIVAN, P.J., and PINCHAM, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ
Petitioner, the Illinois Nurses Association , appeals from the order of respondent, the Illinois State Labor Relations Board (the Board), dismissing INA's unfair labor practice charge for lack of jurisdiction.
We remand this cause for further proceedings pursuant to section 3-111(7) of the Administrative Review Law (Ill. Rev. Stat. 1985, ch. 110, par. 3-111(7)). INA is a labor organization serving as the exclusive representative of
certain classifications of registered professional nurses employed by the State of Illinois at numerous State-owned facilities, including the Shawnee Correctional Center. On March 29, 1985, Shawnee's warden signed a contract, effective April 4, 1985, with Correctional Medical Systems, Incorporated , in which CMS agreed to provide health care services at Shawnee.
On June 24, 1985, INA filed an unfair labor practice charge with the Board against the Illinois Department of Corrections alleging that DOC had refused to bargain with INA concerning wages and other work conditions for certain workers at Shawnee despite a collective bargaining agreement between the State and INA as to these employees. In the charge INA referred to these employees as "State of Illinois bargaining unit employees employed at Shawnee Correctional Center which the State of Illinois, Department of Corrections claims to be working for a sub-contractor but which is really a joint-employer with the State of Illinois."
Section 7 of the Illinois Public Labor Relations Act (the Act) (Ill. Rev. Stat. 1985, ch. 48, par. 1607) imposes a duty of collective bargaining upon public employers. Section 3(o) of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 1603(o)) defines public employers as including the State, political subdivisions of the State, units of local governments, agencies of those 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." The term "person" is defined in the Act as including associations and corporations. Ill. Rev. Stat. 1985, ch. 48, par. 1603(l).
The Board's chief administrator reviewed INA's charge, as well as certain INA supporting documents, including the contract between Shawnee and CMS and a position paper prepared by INA. The administrator held that even if the State and CMS, a private employer, were found to be joint employers, the Board would not have jurisdiction because "[the] jurisdiction of the Board is limited to public employers and public employees." The dismissal order did not discuss whether CMS was acting on behalf of the State with respect to the affected employees. On appeal to the entire Board INA contended that the administrator should have found jurisdiction because CMS was acting on behalf of the State in providing nursing services at Shawnee. However, the Board upheld the dismissal, finding that INA had presented no evidence to support its "further contention that CMS was acting as the agent of the State." Subsequently the Board denied INA's request for reconsideration, finding that INA had failed to raise the agency theory or to present evidence thereon during the administrator's investigation. INA was informed by the Board that should it wish to advance this theory it should file a new charge.
Direct appeal was then taken to this court, pursuant to section 11(e) of the Act, which states in pertinent part:
"A charging party or any person aggrieved by a final order of the Board . . . may . . . obtain judicial review . . . in accordance with the provisions of the Administrative Review Law . . . except that such judicial review shall be afforded directly in the appellate court . . .." (Ill. Rev. Stat. 1985, ch. 48, par. 1611(e).)
In this court the Board again contends that the issue of whether CMS is a public employer, by virtue of its agency for the State, was not properly raised before the administrator below and therefore is not properly before us.
Clearly the administrator never addressed this issue, but it is also clear that INA did raise the issue before the administrator. The Board concedes that during the administrator's investigation INA gave him a copy of the CMS contract and an INA position paper. In that paper INA contended that CMS's employees were also employees of the State. INA further contended that CMS was in effect acting as an employment agency for DOC and that control of the terms and conditions of employment of CMS employees remained primarily ...