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American Federation of State, County and Municipal Employees, Council 31 v. State Labor Relations Board State Panel

July 27, 2004

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 31, PETITIONER,
v.
ILLINOIS LABOR RELATIONS BOARD STATE PANEL, THE DEPARTMENT OF CENTRAL MANAGEMENT SERVICES (THE DEPARTMENT OF CORRECTIONS), AND WEXFORD HEALTH SOURCES, INC., RESPONDENTS.



Petition for the Review of an Order of the Illinois Labor Relations Board State Panel. Nos. 00-CA-0065-C & S-CA-01-102.

The opinion of the court was delivered by: Justice Maag

UNPUBLISHED

The American Federation of State, County and Municipal Employees, Council 31 (Union), appeals the decision of the Illinois Labor Relations Board State Panel (Board) to dismiss a case involving a certification petition and a companion case involving unfair labor practices claims. The Union filed the cases on behalf of health care workers who are employed by Wexford Health Sources, Inc. (Wexford), and who provide health care services to inmates incarcerated in facilities of the Department of Corrections (DOC). The Board determined that the DOC was not an employer of the Wexford employees, and the Board dismissed the cases for a lack of jurisdiction. On review, the Union claims that the Board's decision is erroneous because the DOC possesses authority to control labor relations in regard to the work it contracted to Wexford according to the terms of the vendor contract and because the DOC's actual exercise of control over labor relations in regard to the work it contracted to Wexford is sufficient to confer employer status on the DOC.

Pursuant to procedures under the National Labor Relations Act (29 U.S.C. §151 et seq. (2000)), the Union became the exclusive bargaining representative of the Wexford employees who work at the DOC's correctional facilities (except the Shawnee facility) in 1997. Subsequently, the Union and Wexford negotiated a collective bargaining agreement covering those Wexford employees.

In November 2000, the Union filed a certification petition on behalf of health care workers who were employed by Wexford and who provided services to the inmates at the DOC's facilities. In the petition, the Union identified the DOC as an employer and sought to represent all Wexford employees who worked in the health care units at the DOC's correctional facilities. As a part of its filing, the Union noted that the employees in the proposed unit are in an existing identical unit that it represents and that Wexford is an employer under the jurisdiction of the federal Labor Management Relations Act, 1947 (29 U.S.C. §141 et seq. (2000)). An administrative law judge determined that the DOC was not an employer of the Wexford employees, and the administrative law judge recommended that the certification petition be dismissed.

In November 2000, the Union also filed a charge alleging that the DOC had committed unfair labor practices in relation to the discharge of Jan Welty, a Wexford employee who worked as a registered nurse at the DOC's Western Illinois Correctional Center. Specifically, the Union charged that Jan Welty was active on behalf of the Union at the Western Illinois Correctional Center and that the DOC and Wexford initiated discharge proceedings against her as retaliation for her union activity. Relying in part on the recommended decision to dismiss the certification petition, the executive director of the Board recommended that the unfair labor practices charge be dismissed for a lack of jurisdiction.

The Union filed exceptions to the decision in each case. Following oral arguments, the Board consolidated the certification matter and the unfair labor practices case for purposes of its decision. After considering the testimony and the documentary evidence in the record, the Board concluded that the DOC was not an employer of the Wexford employees, and the Board dismissed both cases on the ground of a lack of jurisdiction. In its decision, the Board found that the DOC exercised "nothing more than a mere perfunctory review and oversight of the vendor contract and the Wexford employees' employment conditions".

I. BACKGROUND

The State of Illinois and its agencies are public employers under section 3(o) of the Illinois Public Labor Relations Act (Act) (5 ILCS 315/3(o) (West 2000)). The intent of the Act is to regulate labor relations between public employers and public employees, to prescribe the legitimate rights of both public employees and public employers, and to provide peaceful and orderly procedures for the protection of the rights of all. 5 ILCS 315/2 (West 2000). The DOC is a state agency. It is required to provide medical care to the inmates incarcerated in its facilities. From time to time, the Department of Central Management Services (Central Management) subcontracts with private corporations to provide services to the DOC and other state agencies.

The Vendor Contract

In this case, the DOC, through Central Management, contracted with Wexford to provide comprehensive health care services to inmates housed at 19 DOC facilities. Wexford is a private corporation that employs health care workers and assigns them to health care facilities, including health care units located in DOC facilities. The Wexford health care workers include registered nurses, licensed practical nurses, directors of nursing, pharmacists, pharmacy technicians, dentists, dental assistants and hygienists, X-ray technicians, psychologists, mental health workers, staff assistants, medical records directors, and medical directors. Because DOC facilities have different needs, there are a number of vendor contracts between the DOC and Wexford. Each contract identifies the facilities covered in that agreement. However, all the vendor contracts contain standard terms and conditions regarding the provision of health care services by Wexford.

The vendor contracts identify Wexford as an independent contractor. Under each contract, Wexford is liable for its employees' negligent acts and omissions in the performance of its duties under the contract. In each contract, the DOC and Wexford have agreed to an estimated annual amount of money to be paid by the DOC to Wexford for the provided services. The estimate is derived from the amount calculated for staff services based on the number of hours Wexford employees work, a fixed management fee, and variable expenses, such as pharmacy and laboratory costs, which fluctuate with the prison census. A budget schedule in the contract establishes the specific amount that the DOC will pay for each health care unit staff position at each DOC facility. Wexford is not required to pay its employees according to that schedule and may establish its own wage rates.

The composition of the health care unit staff varies, depending upon the needs of the particular facility. Each contract details the staff positions that compose the health care unit. In some facilities state employees work in the health care unit alongside Wexford employees and hold the same positions as Wexford employees. The vendor contract describes the specific staffing requirements and the number of on-site hours and work schedule for each staff position. The contract identifies the minimum qualifications for each position. It requires applicants to have prior health care experience, letters of recommendation, and applicable licenses. Only the DOC can grant an exemption from one or more of the qualifications.

The vendor contract states that Wexford is responsible for recruiting and interviewing candidates for the staff positions in the health care unit. The contract requires all Wexford employees to pass a background investigation and random drug testing conducted by the DOC. The contract provides that the final selection of any applicant is subject to the DOC's approval ...


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