Petition For Review of Order of The Illinois Labor Relations Board Case No. L-CA-3020 L-CU-3020.
The opinion of the court was delivered by: Presiding Justice Quinn
Petitioner Forest Preserve District of Cook County (District) filed a petition seeking direct review of an order from the Illinois State Labor Relations Board (Board) finding that the District had committed an unfair labor practice under sections 10(a)(1) and (a) (4) of the Illinois Public Labor Relations Act (Act) (5 ILCS 315/10(a)(1), (a) (4) (West 2002)). On appeal, the District contends that the Board exceeded its authority by committing several procedural errors and that the District did not commit an unfair labor practice under the Act where it had no obligation to bargain with respondent State and Municipal Teamsters, Chauffeurs and Helpers Union, Local 726 (Local 726). For the following reasons, we affirm the Board's determination.
A. The Charge and Amended Charge
On September 24, 2002, Local 726 filed a charge with the Board (case No. L-CA-03-020), alleging that the District had violated sections 10(a)(1) and (a)(4) of the Act. The charge alleged that on September 16, 2002, the District announced that it was implementing a plan to hire a private contractor to operate and manage the golf courses owned by the District, which would result in the layoff of approximately 97 employees represented by Local 726. The charge also alleged that the District made the decision to enter the private contract and implemented the decision without notice to and good-faith bargaining with Local 726 regarding the impact of the decision on bargaining unit employees.
On December 6, 2002, Local 726 amended its charge to include claims that in 2001, the District began considering a plan to hire a particular private contractor. The amended charge also alleged that when Local 726 learned of these plans, it made repeated requests to be involved in the decision-making. The District did not respond to Local 726's requests, and on July 9, 2002, the District voted to hire the private contractor. The amended charge also stated that after hiring the private contractor, the District contacted Local 726 to discuss the effects of its decision. On September 16, 2002, the District gave notice that it intended to lay off bargaining unit members employed at the golf courses and driving ranges. On November 17, 2002, between 50 to 60 bargaining unit members were laid off.
The amended charge also alleged that on October 30, 2002, the District announced a proposed budget that included further layoffs, departmental reorganizations and proposals to hire private contractors to perform work that was being performed by bargaining unit members. On November 6, 2002, Local 726 demanded information and bargaining regarding the layoffs, proposed reorganization and any further decision to hire outside vendors. The following day, the District informed Local 726 that its board of commissioners was considering an appropriations ordinance, which would result in layoffs within the bargaining unit. Local 726 repeated its demand for bargaining and emphasized that meaningful bargaining must precede adoption of the budget. On November 21, 2002, the District adopted the budget.
The amended charge also stated that on December 3, 2002, the District informed Local 726 that: (1) it believed the pending grievance regarding privatization of the golf course was not arbitrable because it was not covered by the contract; (2) the District intended to lay off approximately 95 bargaining unit members and all that remained to discuss was the effects of that decision; and (3) by April 1, 2003, the District planned to consolidate two departments and, as a result, terminate 31 employees with the title of "Forester" and "Woodsman," to create new titles and to allow the terminated employees to apply for those positions.
In the amended charge, Local 726 again alleged violations of sections 10(a)(1) and (a)(4) of the Act and requested an order requiring the District to bargain about its decisions to privatize golf operations, lay off employees, and consolidate departments. Local 726 also requested an order requiring reinstatement and appropriate back pay for all employees injured by the District's failure to bargain and the posting of appropriate notices.
B. The Memorandums of Understanding
The record shows that the parties' representatives met to discuss the impact of the layoff and reached an agreement. On December 19, 2002, the District executed a memorandum of understanding (MOU I), which Local 726 signed on February 6, 2003. MOU I related "solely to the Reduction in Force necessitated by the privatization of the management, operations and control of the District's Golf Facilities." MOU I also provided that "neither Party waives any previous position on matters affecting the terms and conditions of employment of Local 726 employees, or the right to negotiate on such matters in the future." MOU I also provided that "neither party waives its position regarding the [unfair labor practice] charge Local 726 has filed regarding the District's failure to bargain over the decision to privatize." MOU I also provided severance pay for golf driving range employees, initiated their layoff and recall rights, and established "bumping rights" based on seniority.
On July 22, 2003, Local 726 executed a memorandum of understanding regarding employee layoff and recall (MOU II) and a memorandum of understanding regarding resource technician positions (MOU III). The District executed both MOU II and MOU III on August 8, 2003. MOU II expressly provided that it superceded MOU I. MOU II cited the layoffs and stated that the parties had "engaged in negotiations regarding the impact of these lay-offs [sic] on the bargaining unit and its members." MOU II also required that the District create a single recall list of employees from all layoffs, provided that employees retained recall rights for a maximum of two years, and set out how to deal with various situations involving recalling employees to positions other than the ones they held immediately before being laid off. MOU II provided that upon its execution, Local 726 would withdraw the grievance it had filed on December 18, 2002, regarding the reorganization of the two departments. MOU II also required Local 726 to withdraw "that part of Case No. L-CA-03-020 regarding privatization of the golf course operations." The parties also agreed in MOU II that they would arbitrate whether the District had violated the labor agreement when it privatized the golf courses, and, upon the selection of an arbitrator for that grievance, Local 726 was to dismiss with prejudice a lawsuit it had filed involving that same case.
MOU III concerned the resource technician positions resulting from the reorganization of the two departments and the creation of crews staffed by such technicians. MOU III provided that "the Parties wish to fully and finally settle all disputes between them regarding the reorganization, elimination of positions, unit placement of RT's [Resource Technicians] and Resources Aides, and the hiring of RT's."
The parties specified how the various still-unfilled resource technician positions would be filled, including the District creating a list of eligible individuals that gave hiring-preference to those already employed in the unit and establishing the rate of pay for that job title. MOU III also recorded that the parties had agreed to include the new resource technician positions in the bargaining unit and to jointly petition the Board to amend the existing unit description. Local 726 was to withdraw its previously filed unit clarification petition in case No. L-UC-03-002 and its grievance regarding the reorganization.
On September 11, 2003, counsel for Local 726 wrote a letter to a Board investigator stating that Local 726 was withdrawing "the portion of this charge related to the privatization of Forest Preserve Golf Courses and the portion related to consolidation of the Conservation and Forestry Departments into a new Resource Management Department." The letter also stated that "[t]his leaves the portion of the charge which alleges that the [District] improperly refused to bargain about the layoff of approximately 95 bargaining unit members on December 31, 2002. The Union requests that the [Board] proceed quickly to issue a Complaint on this remaining allegation."
On January 13, 2004, the Board's Acting Executive Director issued a complaint for hearing. The complaint concerned, in part, the District's decision to eliminate two job titles, lay off bargaining-unit employees, and consolidate two departments into one department staffed by non-bargaining unit employees in three new job titles. The complaint also included Local 726's allegations that the District failed to provide notice and bargain regarding its decision and that the decision involved wages, hours or working conditions within the meaning of the Act and was therefore a mandatory subject of bargaining. On December 19, 2002, Local 726 filed a petition for amendment or clarification of unit (UC Petition) with the Board (case No. L-UC-03-002), seeking to add the employees in the three new job titles to the existing Local 726 bargaining unit. The petition and complaint were consolidated for purposes of hearing.*fn1
On February 10, 2004, the District filed a response to the complaint for hearing and affirmative defenses. In its answer to the complaint, the District admitted the allegation in paragraph 7, which alleged that, "In or before October 2002, the Respondent decided to implement a layoff of unit employees." As an affirmative defense, the District argued that Local 726's charge was rendered moot by two memorandums of understanding between the parties. The District asserted that on February 6, 2003, the parties entered into a "Memorandum of Understanding Relating to the Reduction in Force necessitated by the privatization of the management, operations and control of the District's Golf Facilities," which gave laid-off employees "bumping rights," two weeks' severance, and payment of accrued vacation and compensatory time. The District also stated that on July 22, 2003, the parties entered into a second agreement, entitled "Memorandum of Understanding Regarding Employee Layoff and Recall," which superceded the first agreement and provided that the parties had engaged in negotiations regarding the impact of layoffs. The District also asserted that the second agreement provided that Local 726 agreed to withdraw "that part of Case No. L-CA-03-020 regarding privatization of the golf course operations."
The District also asserted that the parties agreed in a third agreement, on July 22, 2003, entitled "Memorandum of Understanding Regarding Resource Technician Positions," that "the Parties wish to fully and finally settle all disputes between them regarding the reorganization, elimination of positions, unit placement of [resource technicians] and Resource Aides, and the hiring of [resource technicians]." The District asserted that it fully discharged any bargaining obligation that it may have had by entering into the three memorandum agreements.
On February 16, 2004, shortly before the original date scheduled for the hearing, counsel for Local 726 wrote a letter to counsel for the District in an attempt to "spell out the issues." That letter stated in pertinent part:
"A good starting point is the Amended Charge in this case.
We allege that on October 30, 2002, the Employer announced a plan to lay off approximately 95 bargaining unit members at the end of the calendar year. The reason for the lay off was economic, i.e., the Employer's budget shortfall. We allege that the Union twice demanded to bargain prior to the implementation of the budget and that the District did not respond to these demands. We also allege that when the parties met on December 3, 2002, the Employer announced that the layoff decision had already been made and that the parties should proceed to 'effects bargaining.' I have enclosed a copy of the Amended Charge for your reference.
We think the facts will show: (1) that the parties bargained about the effects and (2) that at no time did the Union waive or withdraw its claim that the decision was made in violation of the law and that appropriate remedies are therefore in order."
On March 10, 2004, the District filed a motion for summary judgment arguing, inter alia, that Local 726 waived its right to bargain and that Local 726 had already received its remedy where the parties had engaged in impact bargaining, which resulted in MOUs I, II, and III. The District included the letter written by Local 726's counsel on February 16, 2004, as an exhibit to its motion for summary judgment. In the supporting memorandum accompanying its motion, the District set out that there had been one layoff in three stages: the first stage in November 2002, the second on December 31, 2002, and the third on March 31, 2003. The District identified the issue as being whether Local 726 had unequivocally waived its right to bargain "over the implementation of the second stage of this RIF (Reduction in Force), which became effective on December 31, 2002." Local 726 did not respond to the District's motion for summary judgment, and the Board denied that motion on April 19, 2004.
D. The Hearing and Amendment to the Complaint
At the hearing on May 13, 2004, administrative law judge (ALJ) Michele N. Cotrupe attempted to set out the issues. She stated that her understanding of the case included the following issues:
"1. Whether the Respondent violated section[s] 10(a)(4) and
(1) of the Act when it implemented a layoff of employees represented by the Charging Party in October, 2002.
2. Whether the Respondent violated section[s] 10(a)(4) and (1) of the Act when it failed and refused to provide the Charging Party with information that it requested on October 30, 2002.
And, finally, whether the unit description should be revised to include the titles of Resource Manager, Resource Technician and Resource Management Aide."
Following this recitation of the issues, counsel for Local 726 requested to amend the complaint. Counsel for Local 726 stated, "[w]ith respect to the third issue, on the record today we would like to amend the [unit clarification] petition, per an agreement with the Forest Preserve, to just include the title of Resource Technician." Counsel for the District stated, "That's fine. We have no objections." Counsel for Local 726 also withdrew the second part of the complaint relating to the provision of information.
With respect to the first issue in the complaint, the parties noted that they had reached an agreement with respect to the privatization of the golf courses, which led to the October layoffs referenced in the complaint. Counsel for Local 726 stated that the complaint should instead reference the layoffs that took place in December 2002 and that she "would like to move on the record to amend the complaint" to include the following: "That on December 31, 2002, the Employer laid off approximately 95 unit employees." Counsel for the District stated that she did not oppose the motion and ALJ Cotrupe agreed that the complaint would be amended. At the conclusion of counsel for Local 726's opening statement, counsel for the District stated:
"The District is going to at this time object to any further proceedings. There has not been a complaint for hearing issued on the December 2002, layoff. The complaint for hearing that's been issued in this case is for October 2002.
The Petitioner has amended his charge to include the December 2002, layoff; however, no complaint for hearing has been issued with respect to the December 2002, layoff."
Counsel for Local 726 responded:
"I want to say one thing about that, in addition to the fact that I've moved to amend the complaint.
If you read the complaint very closely, in Paragraph 7 it says, 'In or before October 2002, the Respondent decided to ...