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September 30, 1996


Petition for Review of an Order of the Illinois Local Labor Relations Board. No. L-CA-92-116.

Released for Publication November 18, 1996.

The Honorable Justice Greiman delivered the opinion of the court: Tully, P.j., and Gallagher, J., concur.

The opinion of the court was delivered by: Greiman

JUSTICE GREIMAN delivered the opinion of the court:

Petitioner County of Cook, d/b/a Cermak Health Services (County), appeals the administrative decision of respondent Illinois Local Labor Relations Board (Board) that found the County had violated the Illinois public Labor Relations Act (Act) (5 ILCS 315/1 et seq. (West 1992)) by (1) unilaterally implementing post-employment drug testing without collective bargaining and (2) failing to sign the 1990-93 collective bargaining agreement until seven months after theparties had come to agreement. For all the reasons that follow, we affirm the Board's decision.

On March 26, 1992, respondent Licensed Practical Nurses Association of Illinois, Division I (LPNAI), filed an unfair labor practice charge with the Board alleging that the County engaged in unfair labor practices (1) by requiring two members of LPNAI to submit to a drug test before being allowed to return to work from medical leaves of absence and (2) by failing to execute the new collective bargaining agreement.

As to the first charge, LPNAI alleged that on November 19, 1991, Bertha Farmer, an employee at Cermak Health Services, "was required to submit to a drug screen before she was allowed to return to work from a medical leave of absence." Similarly, on January 6, 1992, Barbara Davis, another employee at Cermak Health Services, was also required to submit to a drug test before returning to work from a medical leave of absence. Neither employee had any history of drug abuse or disciplinary problems associated with substance abuse.

The charge also stated that during the fall of 1991, the County and LPNAI entered negotiations for a new collective bargaining agreement. During the course of negotiations, the County proposed to include the following language: "The County reserves the right to introduce pre-employment and post-employment drug testing. Details of any such program shall be discussed with the Union." The County, however, withdrew the proposal on November 4, 1991, i.e., prior to the drug tests imposed upon Bertha Farmer (November 19, 1991) and Barbara Davis (January 6, 1992).

As to the second charge, LPNAI stated that a tentative agreement was reached between the County and LPNAI on November 22, 1991. After the County drafted and sent to LPNAI a memorandum of agreement, LPNAI signed the memorandum on December 20, 1991. LPNAI made several requests of the County to execute the memorandum, but at the time of the filing of the complaint (March 26, 1992), the County had failed to execute the written agreement that had been negotiated and agreed upon by the parties. The record reveals that the County did not sign the agreement until July 7, 1992.

By its charge, LPNAI asked that the County be ordered to cease and desist the drug testing of bargaining unit members without cause and to execute the memorandum of agreement.

In its charge, LPNAI alleged unfair labor practices under subsections 10(a)(1) and 10(a)(4) of the Act (5 ILCS 315/10(a)(1), (a)(4) (West 1992)), which provide:

"(a) It shall be an unfair labor practice for an employer or its agents:

(1) to interfere with, restrain or coerce public employees in the exercise of the rights guaranteed in this Act or to dominate or interfere with the formation, existence or administration of any labor organization or contribute financial or other support to it; provided, an employer shall not be prohibited from permitting employees to confer with him during working hours without loss of time or pay;


(4) to refuse to bargain collectively in good faith with a labor organization which is the exclusive representative of public employees in an appropriate unit, including, but not limited to, the discussing of grievances with the exclusive representative."

Following an investigation, the Board issued a complaint for hearing on January 8, 1993. The Board recited the allegations made by LPNAI in its unfair labor practice charge, notified the County to respond and announced that a hearing would be conducted. In addition to the subsections on which LPNAI relied, the Board, in its complaint for hearing, alleged that the County violated subsection 10(a)(7) of the Act for its delay in signing the collective bargaining agreement. Subsection 10(a)(7) provides that it is an unfair labor practice for an employer

"(7) to refuse to reduce a collective bargaining agreement to writing or to refuse to sign such agreement." 5 ILCS 315/10(a)(7) (West 1992).

On May 11, 1993, a hearing was held before Sharon Wells, an administrative law judge (ALJ). Three witnesses testified on behalf of LPNAI: Sally Stix, counsel for LPNAI; Bertha Farmer and Barbara Davis. The County presented three of its employees as witnesses: Steven Klem, the assistant director of personnel and later the deputy chief of the bureau of human resources; Helen Maignon, a laboratory technician who performs drug screens; and John Kalchbrenner, the deputy chief of human resources.

Both Bertha Farmer and Barbara Davis were employed at Cermak Health Services, which is a health facility for detainees at the Cook County jail and is located in a building within the County's Department of Corrections complex. When employees of Cermak Health Services enter the building, ...

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