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Board of Trustees of University of Illinois v. Illinois Educational Labor Relations Board

Court of Appeals of Illinois, Fourth District

April 16, 2018

THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS, Petitioner,
v.
THE ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD and UNIVERSITY PROFESSIONALS OF ILLINOIS, LOCAL 4100, IFT-AFT, AFL-CIO, Respondents.

          Review of Order of the Illinois Educational Labor Relations Board No. 2016-RS-0006-S

          JUSTICE KNECHT delivered the judgment of the court, with opinion. Justices DeArmond and Turner concurred in the judgment and opinion.

          OPINION

          KNECHT, JUSTICE.

         ¶ 1 The Board of Trustees of the University of Illinois (Board of Trustees) seeks direct review of a decision of the Illinois Educational Labor Relations Board (Board), finding department chairs at its Springfield campus were entitled to be included in a bargaining unit consisting of all tenured and tenure-track faculty. The Board of Trustees argues we should reverse the Board's decision because it is based on a clearly erroneous determination the department chairs are not managerial employees, supervisors, or confidential employees as defined by the Illinois Educational Labor Relations Act (Act) (115 ILCS 5/2(g), (n), (o) (West 2016)). The Board's determination the department chairs are not managerial employees is clearly erroneous. We reverse.

         ¶ 2 I. BACKGROUND

         ¶ 3 A. Overview of the University of Illinois

         ¶ 4 The University of Illinois (University) is a large public institution, employing approximately 23, 000 persons on three main campuses. The three main campuses are located in Urbana-Champaign, Chicago, and Springfield. The University system is governed by the University of Illinois Statutes (University Statutes). The University Statutes set forth the policies and procedures of the University and defines the structure, positions, and functioning of the University.

         ¶ 5 The Board of Trustees is the governing body of the University system. The Board of Trustees elects a president, who serves as the University system's chief executive officer. At each campus, a chancellor/vice president serves as the chief executive officer. The chancellor/vice president oversees campus affairs. Each campus also has a provost/vice chancellor, who serves as its chief academic officer. The provost/vice chancellor oversees the faculty and academic affairs as well as manages the budget for the functions he or she oversees.

         ¶ 6 Each campus is comprised of several academic colleges. Each academic college covers a broad academic area of study. The University's Springfield campus is divided into four academic colleges: (1) the College of Liberal Arts and Sciences; (2) the College of Education and Human Services; (3) the College of Public Affairs and Administration; and (4) the College of Business and Management. A dean oversees each college, including its academic programs, faculty, and the infrastructural aspects of the college.

         ¶ 7 Each college is divided into smaller areas of study, called departments. The department is the primary unit of education and administration within the University. Each department has an executive officer, called the department head or chair.

         ¶ 8 The University system operates under a "shared governance" model, meaning the faculty, administrators, and Board of Trustees share in the governance of the institution. The University Statutes provide:

"As the responsible body in the teaching, research, and scholarly activities of the [u]niversity, the faculty has inherent interests and rights in academic policy and governance. Each college or other academic unit shall be governed in its internal administration by its faculty ***. Governance of each academic unit shall be based on unit bylaws established and amended by the faculty of that unit. The bylaws shall provide for the administrative organization and procedure of the unit ***. Except that they may not conflict with these Statutes, or other specific actions of the Board of Trustees, or with the bylaws of a unit which encompasses it, the details of the bylaws are left to the faculty of the unit."

         ¶ 9 B. Certification of Tenure-System Faculty

         ¶ 10 In February 2015, the Board's executive director certified the University Professionals of Illinois, Local 4100, IFT-AFT, AFL-CIO (Union), as the exclusive representative of a bargaining unit of tenured and tenure-track faculty employed at the University's Springfield campus. The certification specifically excluded department heads and chairs and all managerial employees, supervisors, and confidential employees as defined by the Act.

         ¶ 11 C. Majority-Interest Representation Petition

         ¶ 12 In May 2016, the Union filed a majority-interest representation petition, seeking to add 28 employees at the University's Springfield campus with the title of department chair to the existing tenure-system faculty bargaining unit. The Board of Trustees opposed the petition, asserting the department chairs were ineligible for membership because they were managerial employees, supervisors, and/or confidential employees as defined by the Act. ¶ 13 D. Administrative Hearing

         ¶ 14 In June 2016, an administrative law judge (ALJ) conducted a three-day hearing. The Board of Trustees presented the testimony of six witnesses: (1) Renee Taylor, vice provost for faculty affairs and professor of occupational therapy at the University's Chicago campus; (2) Leonard Branson, accountancy department chair at the University's Springfield campus; (3) Rassule Hadidi, management information systems head and former department chair at the University's Springfield campus; (4) James Ermatinger, provost/vice chancellor for academic affairs and interim dean of the College of Public Affairs and Administration at the University's Springfield campus; (5) Hanfu Mi, dean of the College of Education and Human Services at the University's Springfield campus; and (6) Lucia Vasquez, acting dean of the College of Liberal Arts and Sciences at the University's Springfield campus. The Union presented the testimony of five current or former department chairs at the University's Springfield campus: (1) Deborah Anthony, legal studies department chair; (2) Amy McEuen, biology department chair; (3) Heather Bailey, history department chair; (4) Richard Gilman-Opalsky, political science department chair; and (5) Kristi Barnwell, history department chair and vice president of the tenure-system faculty bargaining unit. The parties also presented various exhibits, including, inter alia, the following relating to the Springfield campus: (1) the University Statutes, (2) the faculty personnel policy, (3) the collective bargaining agreement between the University and its graduate assistants, (4) grievance-arbitration procedure proposals relating to the first contract of the tenure-system faculty bargaining unit, and (5) departmental faculty bylaws.

         ¶ 15 1. Departments at the University's Springfield Campus

         ¶ 16 Within the four colleges at the University's Springfield campus are 32 academic departments, which employ 193 full-time faculty members and 165 part-time nontenure faculty members (adjuncts). The Springfield campus has 28 department chairs. The 28 department chairs serve 30 academic departments. The two remaining departments are served by department heads. The Union did not seek to add employees with the title of department head to the tenure-system faculty bargaining unit.

         ¶ 17 2. The Selection and Removal of Department Chairs

         ¶ 18 The University Statutes provide department chairs are appointed annually by the Board of Trustees on recommendation of the president and the chancellor/vice president after consultation with the dean of the college and the executive committee of the department concerned. A department's executive committee is elected annually by and from a department's faculty.

         ¶ 19 Each department, through its bylaws, sets provisions for the selection of proposed department chairs. Generally, chairs are selected from and by the department faculty for one or more three-year terms, after which they resume their regular faculty role. In some departments, chairs rotate terms among the tenured faculty. Other departments have long-standing chairs who are chosen based on their seniority within the department. In other cases, a dean may solicit nominations and deliver ballots to the department's tenure-system faculty to select their choice for chair by a majority vote. Although not required, chairs normally are tenured faculty members. Anthony explained her department typically chooses a tenured professor because chairs might "have to stick their neck out a little bit, " and nontenured professors are "in a more vulnerable position in doing that if they're trying to represent the department to administration."

         ¶ 20 After the faculty has selected their proposed department chair, the dean will review the faculty's selection. The dean rarely rejects the faculty's selection. If the faculty's selection is rejected, the department may hold another vote, or the dean may elect to either appoint a chair or have the dean's office provide administrative support to the department. The provost and the Board of Trustees must also approve the faculty's selection. Taylor explained, while the appointment of a chair involved significant collaboration with a department's faculty, the Board of Trustees did not allow the faculty to directly appoint a chair because the chair was also responsible for carrying out the agendas of the college and the University.

         ¶ 21 Each department, through its bylaws, also sets provisions for the removal of department chairs. Removal of a chair normally requires concurrence of both the department and the dean. A dean can remove a chair without consent from the department's faculty. A dean can object to a faculty's vote to remove a chair. If the dean objects to the faculty's vote to remove a chair, the faculty may override the dean's wishes by a majority vote to remove.

         ¶ 22 3. The Responsibilities of Department Chairs as Provided in the University Statutes

         ¶ 23 The University Statutes provide department chairs "shall be responsible for the formulation and execution of departmental policies and the execution of University and college policies insofar as they affect the department." Chairs are required to:

"(1) report on the teaching and research of the department; (2) have general oversight of the work of students in the department; (3)collaborate with the executive committee in the preparation of the budget and be responsible for the expenditure of departmental funds for the purposes approved by the executive committee; and (4)call and preside at meetings of the executive committee and at meetings of the department faculty of which there shall be not fewer than one in each academic year for consideration of questions of departmental governance and educational policy."

         ¶ 24 The University Statutes provide department chairs have the power to "act independently in such matters as are delegated to the chair by the executive committee." A department chair is ex officio a member and chair of the executive committee. When the executive committee is in session to evaluate the chair's performance, the chair does not partake in the session and the committee is chaired by a different committee member.

         ¶ 25 The University Statutes provide both the department chair and the executive committee "are responsible for the preparation of the budget and for such matters as may be delegated to them by the faculty of the department." The chair "together with the executive committee is responsible for the organization of the work of the department and for the quality and efficient progress of that work."

         ¶ 26 Taylor described the roll of the executive committee as a committee that advises the chair on a range of issues. She also indicated the chair has the ultimate authority as a decision maker.

         ¶ 27 4. The Responsibilities of Department Chairs as Provided in the Faculty Personnel Policy

         ¶ 28 The faculty personnel policy in effect at the University's Springfield campus provides:

"Department administrators, irrespective of whether they are called [d]irectors or [c]hairs, have similar functions and responsibilities. Functions of department administrators are the following: provide effective leadership for faculty in the department/division; assume responsibility for seeing that decisions assigned to the department/division by university policies and procedures are made and communicated to others in the [u]niversity; convey recommendations concerning such matters as curriculum development, budgetary requests, position requests, multi-year schedules, and faculty development activities. Responsibilities of department administrators include overseeing, supervising[, ] and/or coordinating the following: the work of faculty in the development of department curriculum, educational philosophy[, ] and academic standards and the department's long-term planning efforts; coordinate formal reviews of degrees and certificates (if applicable), oversee preparation of documents for follow-up and accreditation review, prepare documents for curricular changes, catalog revisions and other documents necessary to convey the department's curricular plans; develop multi-year course schedules and staffing plans for curricular delivery, consistent with institutional priorities and student needs. Prepare annual course schedule documents and faculty assignment summary sheets for faculty approval, and coordinate curricular delivery and make recommendations about non-instructional assignments; lead and participate in the selection and development of full and part-time faculty; oversee faculty searches in accordance with [u]niversity polices and procedures; develop and coordinate student recruitment, retention, advising[, ] and service activities of the unit; implement and monitor admissions, student progress[, ] and closure requirements of the department's degree(s) and certificates(s) (if applicable), as well as professional certification or registration of students; represent the department(s) to external organizations and groups, inter-institutional activities and accrediting agencies; lead the department(s) in developing budget requests and priorities and approve expenditures according to them; oversee selection and supervision of the department graduate assistants and student workers as appropriate; direct the work of support staff; communicate information to and from the dean and appropriate governance bodies and report the results of department actions and deliberations; ensure representation of the department(s) on appropriate [c]ollege-level committees; represent department(s) at [c]ampus and [u]niversity level meetings; lead the development of public affairs activities in the department(s) and the offering of general education courses; oversee students' clubs, honorary societies, advisory committees, etc."

         ¶ 29 The faculty personnel policy further provides that the necessary amount of support required of department chairs will depend on a variety of factors relating to the department being administered, such as the number of degree programs available.

         ¶ 30 5. Leadership Meetings

         ¶ 31 Department chairs are required to attend their respective colleges' cabinet meetings. The college cabinet consists of the dean and the chairs. At the cabinet meetings, the dean and chairs discuss various issues concerning the college, including the budget, the direction of the college, faculty resources, and strategic and policy issues. A dean may task chairs with handling various assignments delegated from the provost's office.

         ¶ 32 After the union certification of tenure-system faculty, department chairs attended a meeting with the labor relations representative and the University's labor relations lawyer. At the meeting, they discussed the need for "confidentiality concerning the position of the administration vis a vis the Union." They also discussed acceptable communication between the chair and other faculty members, ...


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