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September 2, 1997



Released for Publication October 9, 1997.

Presiding Justice Campbell delivered the opinion of the court. Buckley, J., concurs. O'brien, J., dissents.

The opinion of the court was delivered by: Campbell

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

Petitioner Cook County State's Attorney's Office (State's Attorney, Office) appeals a final decision and order entered by respondent Illinois State Labor Relations Board (Board, ISLRB) finding that the State's Attorney engaged in an unfair labor practice as charged by respondent American Federation of State, County, and Municipal Employees, Council 31 (AFSCME, Union).

The record on appeal indicates the following undisputed facts. On June 29, 1995, AFSCME filed an unfair labor practice charge against the State's Attorney with the Board. AFSCME charged that the Office fired Ms. Carol Hilan, who had been a Homicide Compensation Coordinator with the Victim-Witness Unit of the Office, effective April 21, 1995, due to her involvement in the organizing campaign of the Union. AFSCME charged violations of sections 10(a)(1) and (2) of the Illinois Public Labor Relations Act (5 ILCS 315/10(a)(1),(2) (1994))(Act).

On August 11, 1995, the Board served the State's Attorney with the charge by certified mail. An accompanying letter states that Board Agent Hans DeKok would probably require the Office to submit a statement of position in the matter. The Board's letter was received on August 17, 1995. The Office mailed its appearance by Assistant State's Attorney (ASA) Maureen Hannon, dated August 23, 1995, to the Board.

A letter from ASA Hannon to DeKok dated September 27, 1995, marked "VIA HAND DELIVERY," presented the State's Attorney's statement of position. The Office's position was that the personnel who fired Hilan -- Chris Orozco, Ken Kamps and Anne Harney -- had no knowledge of Hilan's union activity. Affidavits by Orozco, Kamps and Harney to this effect were attached to the Office's statement. The Office also attached similar affidavits by Hilan's former supervisors.

The State's Attorney's position was that Hilan was fired due to substandard performance. The Office submitted 3 prior written reprimands for leaving work without authorization, as well as a response written by Hilan. The Office's position was that on February 28, 1995, a co-worker of Hilan was searching for a file on a crime victim's compensation application, when she found a number of unopened envelopes from other applicants in Hilan's desk. The Office claimed that some of these envelopes were postmarked from October, November and December 1994, as well as January 1995.

On November 21, 1995, the Board mailed a "Complaint for Hearing" to the State's Attorney, charging an unfair labor practice by firing Hilan due to her union activities. The complaint also stated that:

"RESPONDENT [Office] IS HEREBY NOTIFIED that pursuant to Section 1220.40(c) of the Board's Rules and Regulations [80 Ill. Adm. Code § 1220.40 (c) (1994)], it must file an answer to this Complaint and serve a copy thereof upon the Charging Party within 15 days of the service of the Complaint upon it. Said Answer shall include an express admission, denial or explanation of each and every allegation of this Complaint. Failure to specifically respond to an allegation shall be deemed an affirmativeadmission of the facts or conclusions alleged in the allegation. Failure to timely file an answer shall be deemed an admission of all material facts or legal conclusions alleged, and a waiver of hearing. The filing of any motions or other pleadings will not stay the time for filing an answer."

The complaint further states that a hearing on the matter would be conducted by Jacqueline Bachman and Administrative Law Judge (ALJ) of the Board.

On December 14, ALJ Bachman issued an "Order to Show Cause" why the State's Attorney should not be found in default. The order states that the complaint was delivered to the State's Attorney by certified mail on November 27, 1995; accordingly, the answer was due on December 12, 1995. The order states that the State's Attorney did not file an answer until December 13, 1995.

The record contains a letter dated December 14, 1995, from ASA Sally Comin to ALJ Bachman. The letter states that ASA Hannon, to whom the case was originally assigned, left the Office for private practice on November 30, 1995. The case was assigned to ASA Comin on November 29, 1995. The letter states that ASA Comin telephoned ALJ Bachman upon being assigned the case, and asserts that it was the Office's expectation that it would have 15 days from the telephone call to file the answer. ASA Comin wrote that she had needed time to review the case and supervisory approval to file the answer. The letter asserts that the Charging Party was not prejudiced because the answer was filed less than 3 hours late. The letter also states that the Office believed it had a meritorious defense to the complaint, based on its prior statement of position.

The Office also timely filed a formal response to the order to show cause. The facts asserted in the response are similar to those recited in the Office's December 14, 1995, letter. The response adds that when ASA Comin informed her supervisor, ASA John Murphy, that she had telephoned ALJ Bachman, ASA Murphy mistakenly assumed that ASA Comin had obtained an extension of time for filing the answer. An affidavit by ASA Murphy states that his assumption was based on his past experience with the interaction of the Office with Board personnel. ASA Murphy's affidavit also states that it was his policy to require his approval of all responsive pleadings by ASAs who are recent law school graduates, and this policy applied to ASA Comin.

The Office argued that it should not be found in default, based on section 1200.160 of the Board's Rules and Regulations (80 Ill. Adm. Code § 1200.160 (1994)), which provides that the Board may waive or suspend its rules under certain circumstances. On January 3, 1996, ALJ Bachman issued a recommended decision and order denying the Office's request for a waiver. Thus, the allegations of the Union's complaint were deemed admitted. Accordingly, ALJ Bachman concluded that the State's Attorney illegally fired Hilan due to her Union-related activity.

The State's Attorney timely filed exceptions to the recommended decision and order. However, on March 8, 1996, the Board issued a final decision and order accepting ALJ Bachman's recommended decision and order as its decision. In a footnote, the Board agreed that a variance under section 1200.160 was not warranted because the State's Attorney had not shown that the 15 day period was unreasonable or unnecessarily burdensome in this case. The State's Attorney now appeals.

The State's Attorney contends that the Board erred in refusing to grant a variance from the Board's Rules and Regulations. Section 1220.40(c) of the Board's rules governs the filing of the respondent's answer to the unfair labor practice complaint:

"Whenever a complaint for hearing is issued, the respondent must file an answer within 15 days after service of the complaint.

1) The answer shall include a specific admission, denial or explanation of each allegation or issue of the complaint or, if the respondent is without knowledge thereof, it shall so state and such statement shall operate as a denial. Admissions or denials may be made to all or part of an allegation but shall fairly meet the circumstances of the allegation.

2) The answer shall also include a specific, detailed statement of any affirmative defenses including, but not limited to, allegations that the violation occurred more than six months before the charge was filed, that the Board lacks jurisdiction over the ...

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