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10/27/89 American Federation of v. the Illinois State Labor

October 27, 1989

EMPLOYEES, AFL-CIO, PETITIONER-APPELLANT

v.

THE ILLINOIS STATE LABOR RELATIONS BOARD ET AL., RESPONDENTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SIXTH DIVISION

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL

546 N.E.2d 687, 190 Ill. App. 3d 259, 137 Ill. Dec. 742

Petition for review of order of Illinois State Labor Relations Board. 1989.IL.1702

APPELLATE Judges:

JUSTICE QUINLAN delivered the opinion of the court. EGAN, P.J., and McNAMARA, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE QUINLAN

The American Federation of State, County, and Municipal Employees appeals a final order of the Illinois State Labor Relations Board (ISLRB or Board). On September 29, 1988, ISLRB ruled that the Illinois Departments of Central Management Services and Corrections (IDOC or Corrections) were compelled to bargain with AFSCME about the impact of employee discipline under the new policy for drug testing but not about the institution of drug testing itself. ISLRB allowed IDOC to institute the new policy but ordered both parties to bargain further on the subject of employee discipline. AFSCME now appeals directly to the appellate court, claiming court jurisdiction under section 11 of the Illinois Public Labor Relations Act (Ill. Rev. Stat. 1987, ch. 48, par. 1611(c)) and Supreme Court Rule 335 (107 Ill. 2d R. 335).

On this appeal AFSCME asserts:

(1) The ISLRB ruling that the IDOC policy to implement employee drug testing was a managerial right and not a mandatory subject of bargaining is unreasonable and should be reversed.

(2) The ISLRB finding that IDOC did not waive its right to institute a drug-testing program for corrections employees during the term of the current contract is not supported by substantial evidence and should be reversed.

The AFSCME dispute over drug testing began when AFSCME and CMS negotiated a contract to cover 37,000 State employees in eight bargaining units for the contract period of July 1, 1986, to June 30, 1989. AFSCME and CMS had discussed possible drug testing (blood and urine) for all State employees under AFSCME. After substantial disagreement, CMS withdrew its proposals.

As far as the record shows, the parties did not bargain over CMS's withdrawal or discuss whether CMS had waived drug testing for the duration of the contract. The parties did, however, place a waiver "zipper clause" in article XXXIV, section 4, of their master collective bargaining agreement. In this clause, the parties acknowledged their mutual "unlimited right and opportunity to make demands and proposals with respect to any subject or matter within the area of collective bargaining . . . and that the understandings and agreements arrived at by the parties after the exercise of that right and opportunity are set forth in this Agreement."

In January 1988, a manager from CMS informed an AFSCME official that IDOC wanted to begin drug testing for the roughly 9,000 employees in the

On March 1, 1988, AFSCME challenged the new policy by filing a charge with ISLRB under section 11 of the Illinois Public Labor Relations Act (Act) (Ill. Rev. Stat. 1987, ch. 48, pars. 1601 through 1627). AFSCME alleged unfair labor practices on the grounds that IDOC and CMS had not engaged in all the necessary mandatory bargaining for the new drug-testing policy.

Both the hearing officer and later the Board itself reached their decisions by reviewing the AFSCME complaint as a problem of applying two contradictory sections of the Illinois Public Labor Relations Act (Act). To resolve the problem, both tribunals balanced section 7, on the duty to bargain, with section 4, on management rights. The four relevant provisions provide:

(1) The public employer has a duty to "negotiate in good faith with respect to wages, hours, and other conditions of employment, not excluded by Section 4 of this Act . . .." Ill. Rev. Stat. 1987, ch. 48, par. 1607.

(2) Employers are "not . . . required to bargain over matters of inherent managerial policy" which include the "selection of new employees, examination techniques and direction of ...


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