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06/29/89 the City of Burbank, v. State Labor

June 29, 1989





541 N.E.2d 1259, 185 Ill. App. 3d 997, 133 Ill. Dec. 821

Petition for review of order of Illinois State Labor Relations Board. 1989.IL.1035


JUSTICE JOHNSON delivered the opinion of the court. McMORROW and LINN, JJ., concur.


The City of Burbank (hereinafter the City) appeals from the decision and order of the Illinois State Labor Relations Board (hereinafter the Board), finding that it had committed unfair labor practices in violation of sections 10(a)(1) through (a)(4) of the Illinois Public Labor Relations Act (Ill. Rev. Stat. 1985, ch. 48, pars. 1610(a)(1) though (a)(4)) (hereinafter the Act). The City also appeals from the Board's decision awarding attorney fees to the Board and to American Federation of State, County and Municipal Employees (hereinafter AFSCME). The following issues are raised on appeal: (1) whether the Board's decision is against the manifest weight of the evidence and (2) whether the Board has the authority to award attorney fees.

We affirm in part and reverse in part.

On June 28, 1985, AFSCME Council 31, AFL-CIO (hereinafter the Union) was elected as the exclusive representative of a group of employees of the Public Works Department (hereinafter Department) located in Burbank, Illinois. Before the Union was certified by the Board, but after the election, the City enacted an ordinance restructuring the Department. The ordinance eliminated the foremen positions, reduced the receptionist position from full-time to part-time status, and created a deputy director position, whereby one of the foremen was promoted and the remaining foreman was terminated. On August 6, 1985, the Union filed an unfair labor practice charge with the Board (No. S-CA-89), alleging that the City's action violated sections 10(a)(1), (a)(2), and (a)(4) of the Act. Ill. Rev. Stat. 1985, ch. 48, pars. 1610(a)(1), (a)(2), (a)(4).

In September 1985, the City accepted a bid from an independent contractor to pave and resurface its streets. This work was previously performed by the Department employees. However, as a consequence of this subcontracting, four employees were laid off. On October 24, 1985, the Union filed another unfair labor practice claim (No. S-CA-103) against the City, alleging that its act of subcontracting violated sections 10(a)(1) and 10(a)(4) of the Act. Ill. Rev. Stat. 1985, ch. 48, pars. 1610(a)(1), (a)(4).

After the Union filed its second charge with the Board, the parties entered into settlement negotiations. Michael Newman, a Union representative, testified that during October 1985 he met several times with Nick A. Cetwinski, attorney for the City, to discuss settlement of the two pending unfair labor practice charges. On November 5, 1985, Newman again met with Cetwinski. Also present at this meeting were five members of the city council, the City's mayor and administrator, and Leonard Sullivan, one of the employees laid off by the City and a member of the Union's negotiating committee.

With respect to No. S-CA-89, the City proposed to return the receptionist position to a full-time status with back pay. However, in lieu of reinstating Bob Randle, the ex-foreman, the City offered him severance pay calculated at one-half of the salary he would have earned from the date of his termination less any other compensation earned since the date.

Concerning No. S-CA-103, the City proposed to reinstate the four laid-off employees with back pay less other compensation earned during the layoff. The proposal also provided that subcontracting of unit work was to be discussed at the parties' collective bargaining negotiations. Finally, the City's proposal required the Union to withdraw its unfair labor practice charges.

The Union found the proposal acceptable except for the provisions granting Randle severance pay in lieu of reinstatement. Newman agreed to recommend to the Union members that the City's proposal be accepted. The Union would then be obligated to withdraw its unfair labor practice charges. It was further agreed that the provision concerning Randle would be left for resolution by the Board. However, Newman informed the City that he could not authorize any settlement without the approval of the Union members. Thereafter, the City representatives signed the proposal as originally written, but the Union did not sign the document.

On November 6, 1985, Newman presented the proposal to the Union. The members voted to accept the settlement. On November 20, 1985, prior to the hearing in No. S-CA-89, Cetwinski met with Jacqueline A. Kinnaman, counsel for the Union (Newman was unavailable), to sign the agreement. At this meeting they amended the proposal signed by the City representatives on November 5 to make it consistent with their final agreement to eliminate all references in the proposal to Randle. Also, they agreed to either withdraw or amend the pending unfair labor practice claim. The amendments were initialed by Cetwinski and Kinnaman. In order to encompass what was agreed upon, the parties signed a document entitled "Parties Settlement Agreement."

At the hearing, both settlement agreements were entered into the record. Pursuant to the terms of the agreement, Kinnaman moved to amend the complaint in No. S-CA-89 to strike all references to the receptionist and to the foreman who was promoted to deputy director. On December 13, 1985, Kinnaman notified the Board by letter that it was withdrawing its unfair labor practice charge in No. S-CA-103. On December 18, 1985, the Board notified all parties of the withdrawal.

The City reinstated the employees in December 1985; however, they did not receive any back pay. The Union sent a letter to Cetwinski requesting payment of the back wages, but it did not get any response. Accordingly, on March 10, 1986, the Union filed an unfair labor practice charge (No. S-CA-151) against the City alleging violations of sections 10(a)(1), (a)(2), and (a)(4) of the Act. Ill. Rev. Stat. 1985, ch. 48, pars. 1610(a)(1), (a)(2), (a)(4).

Subsequent to the filing of the charge, the City initiated its process of subcontracting Department services by approving a budget ordinance, including $300,000 for subcontracting street repairs. Based on this action, the Union amended No. S-CA-151 on March 24, 1986, to allege a violation of section 10(a)(3) of the Act. (Ill. Rev. Stat. 1985, ch. 48, par. 1610(a)(3).) On March 28, 1986, Kinnaman sent a letter to the City demanding to bargain over the decision to subcontract and its effect ...

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