APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL
543 N.E.2d 562, 187 Ill. App. 3d 585, 135 Ill. Dec. 179 1989.IL.1301
Petition for review of order of Illinois State Labor Relations Board.
JUSTICE SPITZ delivered the opinion of the court. McCULLOUGH, P.J., and KNECHT, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ
The principal question in this case is whether an alleged refusal on the part of a public employer to engage in good-faith collective bargaining with a union which is the exclusive bargaining representative of a group of its employees is a defense to a decertification petition filed with respect to that union which, if proved, would render the petition untimely. Additional questions are whether a union's failure to serve an employer with a statement setting forth its position with respect to a decertification petition resulted in waiver of the union's right to a hearing on the petition and whether the purported failure of the Illinois State Labor Relations Board to enforce a prior order requiring an employer to engage in good-faith collective bargaining may be asserted as a defense to a decertification petition.
On August 15, 1986, petitioner American Federation of State, County, and Municipal Employees was certified by the ISLRB as the exclusive bargaining representative of a group of employees at the Sunny Acres Nursing Home in Petersburg. In an order entered January 14, 1987, the ISLRB found respondent County of Menard (County), which operates the
Sunny Acres Nursing Home, guilty of an unfair labor practice in that on or about September 5, 1986, it had illegally refused to bargain with AFSCME. Therefore, the ISLRB ordered the County to bargain with AFSCME as the exclusive representative of the employees in the bargaining unit at the nursing home. Furthermore, the ISLRB held AFSCME's initial period of certification as exclusive bargaining representative of the employees included in the Sunny Acres bargaining unit was to commence on the date the County began to bargain in good faith with AFSCME. County of Menard, 3 Pub. Employee Rep. (Ill.) par. 2018, case No. S -- CA -- 87 -- 48 (Illinois State Labor Relations Board, Jan. 14, 1987).
Thereafter, several months elapsed without any substantial progress in the negotiation of a union contract for the Sunny Acres employees. Eventually, the ISLRB's assistant administrator and compliance officer contacted AFSCME in order to obtain information regarding the County's compliance with the January 14, 1987, order. AFSCME's response to this request, which was dated June 10, 1987, read in part:
"It appears that [counsel for Menard County], is doing only surface bargaining.
The decision of the Illinois State Labor Relations Board was issued in January of 1987. Negotiations did not begin until April. Nine sessions were scheduled in the months of April and May; only two of those sessions actually took place.
There have been numerous reasons why they were cancelled, but the one repeated most often is that the Nursing Home Administrator was uncooperative.
I am under the opinion that if [counsel for Menard County] does not call me this week, AFSCME has grounds for additional ULP [unfair labor practice] charges against Menard County."
("Surface bargaining" is one of a number of dilatory bargaining tactics which the National Labor Relations Board has determined constitute unfair labor practices under the National Labor Relations Act (29 U.S.C. § 151 et seq. (1982)), as amended. It is defined as actions by an employer which, while appearing to be good-faith collective bargaining, are in fact actions which amount to simply "going through the 'motions'" of collective bargaining. (See 1 C. Morris, The Developing Labor Law 579-83 (2d ed. 1983); see also B.F. Diamond Construction Co. (1967), 163 N.L.R.B. 161, 173-79, 64 L.R.R.M. 1333 (trial examiner's decision, discussing "good-faith bargaining" principles).) On June 18, 1987, ISLRB's assistant administrator and compliance officer responded to this letter as follows:
"Thank you for your prompt response to our inquiry concerning compliance in the above referenced case.
Your June 10, 1987 letter states that following the Board's January 1987 order, the Employer may have engaged in surface bargaining. If you wish to file additional ULP charges against the County, as your letter indicates, we will investigate those charges accordingly."
AFSCME did not, however, file any unfair labor practice charges with regard to alleged surface bargaining on the part of the County.
On April 14, 1988, an employee at Sunny Acres filed a petition seeking decertification of AFSCME as exclusive bargaining representative of the employees in the bargaining unit at the nursing home. A hearing on the decertification petition was held on May 9, 1988.
In a recommended opinion issued June 8, 1988, the ISLRB's hearing officer held AFSCME's failure to file a timely position statement with respect to the decertification petition did not result in waiver of its right to a hearing on the petition, since the County demonstrated no prejudice as a result of its not receiving such a statement. Furthermore, the hearing officer held the County waived its right to ...