Petition for Review of an Order of the Illinois Labor Relations Board, Local Panel. No. L-CA-09-009
The opinion of the court was delivered by: Presiding Justice Hoffman
PRESIDING JUSTICE HOFFMAN delivered the judgment of the court, with opinion. Justices Karnezis and Rochford concurred in the judgment and opinion.
¶ 1 The petitioner, the Fraternal Order of Police, Chicago Lodge No. 7 (Lodge), seeks review of an order of the Illinois Labor Relations Board, Local Panel (Board), finding that the City of Chicago (City) did not commit an unfair labor practice by failing to bargain over its consolidation of training districts for probationary police officers. On appeal, the Lodge contends that the Board erred in concluding that the consolidation decision was not a mandatory subject of bargaining and in finding that the Lodge had waived the claim that the City violated its duty to bargain over the effects of the consolidation decision. For the reasons that follow, we affirm the Board's decision in all respects.
¶ 2 The record establishes the following relevant facts. On September 9, 2008, the Lodge filed an unfair labor practice charge with the Board, claiming that the City had violated sections 10(a)(1) and 10(a)(4) of the Illinois Public Labor Relations Act (Act) (5 ILCS 315/10(a)(1), (a)(4) (West 2010)) by unilaterally deciding to consolidate the 18 existing police officer training districts*fn1 into six training districts and by engaging in direct negotiations with two field training officers (FTOs). The charge further asserted that FTOs are police officers who are assigned by the Chicago Police Department (Department) to train and evaluate probationary police officers and who receive higher compensation for performing such training. FTOs are members of the bargaining unit represented by the Lodge, but the probationary police officers are not included in the bargaining unit until they have completed the first 18 months of their employment with the Department.
¶ 3 Following an investigation pursuant to section 11(a) of the Act (5
ILCS 315/11(a) (West
2010)), the executive director of the Board determined that the charge
involved dispositive issues of law or fact and issued a complaint for
hearing before an administrative law judge (ALJ). The complaint
alleged that, during the negotiations for a successor collective
bargaining agreement, the Lodge made various proposals relating to
FTOs, including expansion of the field training districts to all 25
police districts in the City, and that the City had rejected the
expansion proposal at a joint bargaining subcommittee meeting in
December 2007.*fn2 In addition, the complaint alleged
that, at a meeting on June 17, 2008, attended by
certain members of the Lodge and by Police
Superintendent Jody Weis and other members of the Department, the
parties agreed that future negotiations would take place regarding the
Lodge's expansion proposal. The complaint further asserted that, on
September 4, 2008, the City announced the consolidation of field
training districts, which reduced the number of such districts from
eighteen to six, without further negotiations with or prior notice to
the Lodge and that FTOs not currently assigned to one of the six
training districts would have to bid for one or resign their FTO
positions and lose the additional FTO compensation.
¶ 4 The complaint claimed that the transfer of FTO positions involves wages, hours, or working conditions and was a mandatory subject of bargaining. It also claimed that the City had violated the Act by failing to bargain in good faith over the consolidation decision and the Lodge's proposal to expand training districts and by engaging in direct dealing with Lodge members. The City answered the complaint, and the parties filed statements of uncontested material facts, in which they agreed that the transfer of FTO positions into new districts involves wages, hours, or working conditions.
¶ 5 During his opening statement before the ALJ, counsel for the Lodge stated that "[t]he
Department also required FTOs who are not assigned to these [consolidated] training districts to transfer to those districts or to resign their FTO position and forfeit the extra pay and overtime opportunities that were attendant to that position. The Department admits that the transfer of FTO officers into new districts involves wages, hours, and working conditions. These changes in the working conditions of the FTOs were implemented without bargaining with the Lodge. The Department violated the [A]ct when it engaged in direct dealing with officers represented by the Lodge, and then the Department did not negotiate in good faith with the Lodge. The evidence will establish these violations . . ."
¶ 6 The Lodge called FTO Richard Aguilar, FTO Richard Daly, and Lodge President Mark Donahue as witnesses. The testimony of these witnesses indicated that FTOs are responsible for teaching fundamental policing skills to new recruits who train for four weeks with an FTO at each different watch, for a total of 12 weeks of training. FTO positions are filled through a formal application and testing process, and FTOs earn a higher rate of pay than that received by other police officers, regardless of whether they actually have a probationary police officer to train at any given time, and they also receive additional compensation for various training-related activities.
¶ 7 On June 6, 2007, the Lodge submitted, in the successor negotiations, its proposal to expand FTO assignments to all police districts and to increase the rate of FTOs' compensation. The purpose of this proposal was to improve the working conditions of FTOs and to attract more officers to apply for such positions, though at least one training district had an excess number of FTOs with no recruits to train. The City rejected this proposal in December 2007.
¶ 8 There were two meetings during the summer of 2008 at which the FTO program was discussed. On June 17, 2008, several Lodge members, including those in leadership positions, attended a meeting to get acquainted with Superintendent Weis and his staff, all of whom had recently been appointed. At some point during this meeting, Superintendent Weis mentioned that the Department was contemplating making some changes to the FTO program and that he intended to ask some of the more senior FTOs for their input. Though Superintendent Weis indicated that Aguilar, who had been an FTO for more than 20 years, would be included in any conversations regarding changes to the program, Aguilar was never contacted about that issue. A subsequent meeting was held on July 23, 2008, between several supervisory police officers and FTOs Richard Daly and Shawn Hallinan. The purpose of this meeting was to solicit input from the FTOs about how to improve the field training program, and Daly was directed by his watch commander to attend the meeting.
¶ 9 On September 3, 2008, Superintendent Weis issued a bulletin announcing the consolidation of field training districts as a "first step" in the process of improving the FTO program. The bulletin stated that recruits would be trained in six particular districts, representing all of the Department's five police areas, and that the selected districts "have broad-scale policing issues ranging from crime, diverse communities, schools, business districts, and other service issues." The bulletin explained that, as a result of this change, recruits will be trained in "some of the busiest districts in the City, and will be well prepared to work in any district at the successful completion of their training." The bulletin further explained that consolidation was "necessary to ensure that a high concentration of [FTOs] are available in training districts, providing recruits with greater interaction and more focused instruction with [FTOs]." The following day, the Department issued a memorandum detailing the two-level bidding process by which FTOs who were not already assigned to one of the consolidated districts would move into one. Those FTOs who were not successful bidders or who did not bid would be reassigned to a new district, and any FTOs who wanted to remain in their existing district could avoid reassignment by resigning as an FTO. The "current watch" of any FTOs who transferred would be honored in the new training district until the end of the year, after which, transferring FTOs would be assigned to all three watches. Following the consolidation, approximately 30 FTOs resigned their field training positions.
¶ 10 The City called Deputy Superintendent Peter Brust, Lieutenant Michael Dejanovich, Commander Donald O'Neill, Lieutenant Jeff Mappa, and Michael Masters, the superintendent's chief of staff, as witnesses. The testimony of these witnesses indicated that, at the "get acquainted" meeting in June 2008, members of the Lodge and Superintendent Weis and his staff generally discussed issues related to the Department, including the improvement of the FTO, but no specific contract proposals affecting FTOs were addressed. Superintendent Weis had established an internal committee to study ways to strengthen and improve the field training program, but this informal group was not connected to the negotiations for a successor collective bargaining agreement. In July 2008, the committee conducted a meeting, which was also attended by Daly and Hallinan. This meeting was informational and provided an opportunity for FTOs Hallinan and Daly to express their views on the field training program. No consensus was reached as to how to change the FTO program, and the July 2008 meeting was the only occasion on which the internal committee received input from FTOs regarding the program before the consolidation was announced. The consolidation did not reduce the total number of available FTO positions, but it concentrated the assignment of those FTO positions into six, rather than 18, designated districts.
¶ 11 During the testimony of Commander Donald O'Neill, the Lodge's attorney objected to the City's examination regarding how the Department would implement the consolidation decision, claiming that this line of questioning was not relevant to the charge at issue. Counsel for the City responded that the testimony related to "the issue of impact bargaining" because it showed that the City did have discussions with the Lodge about the "impact of the consolidation." She further indicated that, based on comments made during the Lodge's opening statement, she was under the impression that "what happened after the consolidation" was at issue, in addition to the decision to consolidate itself. Counsel for the City stated that, if her impression was incorrect, she would "cease this line of questioning." The ALJ then expressed her understanding that the Lodge's charge was based on the City's refusal to bargain over the consolidation of the field training districts, but the Lodge had not alleged that the City refused to bargain about the impact of that decision. When the ALJ inquired whether the charge was based on the refusal to bargain about the ...