Forest Preserve District of Cook County v. Illiniois Labor Relations Board

FOURTH DIVISION
December 21, 2006

No. 1-05-0813

FOREST PRESERVE DISTRICT OF COOK COUNTY, )
ILLINOIS, an Illinois Special District, )
)
Petitioner-Appellant, ) Petition For Review
) of Order of The Illinois
v. ) Labor Relations Board
) Case No. L-CA-3020
ILLINOIS LABOR RELATIONS BOARD, ILLINOIS ) L-CU-3020
LABOR RELATIONS BOARD, Local Panel, FRED )
WICKIZER, Acting Executive Director, JACKIE )
GALLAGHER, Panel Chairman, DONALD HUBERT, )
Member, EDWARD E. SADLOWSKI, Member, JOHN )
L. CLIFFORD, Administrative Law Judge, MICHELE )
CONTRUPE, Administrative Law Judge, JACALYN J. )
ZIMMERMAN, General Counsel, STATE AND )
MUNICIPAL TEAMSTERS, CHAUFFEURS, AND )
HELPERS, LOCAL 726, and INTERNATIONAL )
BROTHERHOOD OF TEAMSTERS, LOCAL 726, )
)
Respondents-Appellees. )

PRESIDING JUSTICE QUINN delivered the opinion of the court:

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)
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(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.

I. Background

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

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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

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"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.

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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."

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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."

C. The Complaint

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

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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.1

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

1
In accordance with MOU III, Local 726 formally withdrew the UC Petition on

the day of the hearing and agreed to file the papers for the parties to jointly agree to the

addition of the resource technician position to the bargaining unit. On August 6, 2004,

ALJ Clifford returned the UC Petition to investigation for action by the Board’s Acting

Executive Director, who amended the unit to include the title of resource technician on

September 20, 2004.

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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

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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.

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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

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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 implement a layoff of unit

employees.'

I think the evidence is very clear that the Forest Preserve District was

contemplating the layoff of unit employees and, indeed, the layoff that

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was the budgetary layoff in October 2002; and as a consequence, I think,

if you read the complaint very closely, there is nothing in the complaint

that’s inconsistent with dealing with a layoff that occurred after 2002, in

either golf or an economic layoff, or in the layoffs that were caused by the

merger of the two departments."

Counsel for the District then stated:

"The complaint for hearing that was issued by the Board specifically

addresses the October 2002, layoff. It makes no reference whatsoever to a

December 2002, layoff. Therefore, that issue is not before the Board at this time,

as a complaint for the December 2002, layoff has not been filed by the Board."

ALJ Cotrupe noted that counsel for Local 726 had moved to amend the complaint

and allowed Local 726 to proceed with the presentation of its evidence. ALJ Cotrupe

also noted that the parties would be allowed to brief whether the complaint should be

amended to reflect the December 2002 layoff.

Local 726 called Jim Green to testify on its behalf. Green testified that he had

been employed as Local 726's counsel for 10 years and served as chief spokesman during

contract negotiations. When Green learned about possible layoffs during the summer of

2002, relating to the District’s golf courses, Green testified that Local 726 demanded to

meet with the District and filed a grievance. Local 726 demanded to bargain about the

District’s decision to lay off employees, but the District’s position was that it did not

have to bargain over that issue. Green testified that the parties did bargain over the

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effects of the layoffs and reached an agreement on November 1, 2002, which was

memorialized in a memorandum of understanding dated November 4, 2002.

Green testified that the secretary-treasurer for Local 726 subsequently showed

him a press release from the District’s website. Sometime after October 30, 2002, Green

downloaded the press release from the District’s website, which set out highlights from

the District’s proposed 2003 budget, including the combination of two existing

departments into one and the elimination of 473 positions. Green testified that at the

time, there were also articles in newspapers regarding the budget and potential layoffs

and reductions. Green also testified that shortly thereafter, Local 726 received a “Notice

of Proposed Reduction in Work Force” from the District, which was dated November 4,

2002.

Green also testified that after the District refused to bargain about its decision to

privatize the golf courses, Local 726 filed an unfair labor practice charge. After the

announcement of the subsequent budgetary layoffs, Green directed another attorney for

Local 726 to write a letter objecting to that action, demanding to meet with the District,

and demanding rescission or postponement pending bargaining of that action. Such a

letter was issued by an attorney for Local 726 on November 6, 2002, but Green testified

that the District did not respond to the letter. Green testified that an attorney for Local

726 issued a follow-up letter on November 20, 2002, which was during the time that the

proposed budget was in the process of being adopted by the District.

Green testified that after the budget had been adopted, the parties began to meet

on December 3, 2002, regarding the effect of that budget on bargaining unit employees.

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Green testified that the District refused to bargain with respect to Local 726's demand

that the District rescind its action and postpone the layoffs pending bargaining about the

decision. The District then sent out a "Notice to Employee" to employees that potentially

were to be laid off, advising that "[t]here are plans to have a reduction in force (Layoff)

in late December." Notices to individuals of termination of services effective December

31, 2002, were issued by the District on December 4, 2002.

Green testified that the parties met again to bargain about the effects of the layoff

due to the District’s reduced budget in late December 2002, and continued to bargain into

January and February 2003. Green testified that the parties also began bargaining about

the effect of the reorganization of the other department. Green testified that the parties

entered into a memorandum of understanding, which set forth the process by which

people would be recalled, what rights they would have to bump to a different position,

and the amount of time that they would retain those rights. Green testified that the

parties also entered into a memorandum of understanding regarding the effects of the

reorganization of the two departments into one, which included that the newly created job

title would be under Local 726's jurisdiction. Green testified that the parties never

bargained about the District’s decision to have the layoffs. Green testified that the

District made it clear that it would not bargain over its decision and Local 726 made it

clear that it would bargain about the effects, but would not in any way waive its position

that the District was required to bargain about the decision.

During cross-examination, Green testified that the collective bargaining

agreement between the District and Local 726 contained a "management rights" clause.

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The record shows that the collective bargaining agreement between the parties was

effective from January 1, 2000, through December 31, 2002. The "management rights"

clause in article II, section 1, of the agreement provides:

"The Union recognizes that the District has the full authority and responsibility

for directing its operations and determining policy. The District reserves unto

itself all powers, rights, authority, duties and responsibilities conferred upon it

and vested in it by the statutes of the State of Illinois, and to adopt and apply all

rules, regulations and policies as it may deem necessary to carry out its statutory

responsibilities; provided, however, that the District shall abide by and be limited

only by the specific and express terms of this Agreement, to the extent permitted

by law."

Green testified that he did not recall the management rights clause being mentioned

during negotiations. Green testified that if the parties had agreed on a layoff provision

during contract negotiations, they could have put that agreement in the collective

bargaining agreement. Green also testified that the collective bargaining agreement did

not contain some of the topics addressed in the memorandum of understanding regarding

employee layoff and recall.

The District called its chief financial officer, Barbara McKinzie, to testify

concerning the District’s budgetary constraints. She testified that the District was legally

required to have a balanced budget and that tax caps enacted in 1995 limited increases in

its income and capped infrastructure debt. McKinzie testified that the income for each

fiscal year lagged by 12 to 24 months, and therefore the budget had to be balanced based

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on expected income. McKinzie testified that the District received its revenue in two

installments, with the first one in March. McKinzie testified that because the District

used "seasonal help" to cover the heavy peak time between May and October, the

District’s expenses would go up a lot while it was not getting any revenue and that it

would receive the second installment of income after the season was theoretically over.

McKenzie also testified that, in 2001, the District’s board passed a resolution that

"went on record with a policy *** that there would not be borrowing anymore."

McKinzie subsequently joined the District in February 2002. McKenzie testified that an

audit through 2001 showed that, for a number of years, the District had been spending

more money than it had received in revenues. McKenzie testified that the "first step in

the budget would be to get the managers to determine how they can operate and reduce

cost to mirror what we were taking in." McKenzie testified that the District had a $2

million deficit in 2001, but that the District did not fill all budgeted positions and made

an effort to cut costs in 2002, resulting in no deficit in 2002. McKenzie also testified that

due to an adjustment in accounting procedures, the District’s balance at the end of 2002

showed a $2 million increase in debt. McKenzie testified that the District took steps to

reduce the deficit in the 2003 budget. McKenzie testified that in 2002, when she arrived,

the Board had decided to privatize its golf courses and proposed an overall reduction in

operations within the District.

The District also called Jonathan Rothstein to testify. Rothstein testified that he

was an attorney representing the District during its negotiation of the collective

bargaining agreement with Local 726. Rothstein testified that the collective bargaining

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agreement did not contain layoff provisions and stated that it was not a subject of

negotiations. Rothstein testified that the agreement had a provision addressing when

seniority rights could be terminated. Rothstein also testified that all employees in the

resource technician job classification had previously been in forestry positions.

Following the hearing, ALJ Cotrupe resigned her position with the Board and

ALJ John Clifford was assigned to this case. ALJ Clifford notified the parties of his

assignment on or around June 28, 2004, and the record does not reflect that either party

objected to that assignment. On August 30, 2004, ALJ Clifford issued a recommended

decision and order, in which he granted Local 726's motion to amend the complaint. In

doing so, ALJ Clifford found that as late as February 2004, both parties assumed that

paragraph 7 of the complaint referred to the District’s decision in October 2002 to

implement a December 2002 layoff. ALJ Clifford stated, "The amendment merely

clarifies the original allegation and arises out of the same subject matter, as it merely

adds that the October 2002 decision to implement a layoff resulted in the December 2002

layoff. Although Local 726's proposed amendment adds nothing to paragraph 7 as

originally understood, I grant it to avoid any confusion."

ALJ Clifford found that the District’s decision to implement a layoff for

budgetary reasons was a mandatory subject of bargaining and that Local 726 did not, in

bargaining with the District, waive its right to bargain about the budgetary layoff. ALJ

Clifford found that the District violated sections 10(a)(1) and (a)(4) of the Act by failing

and refusing to bargain with Local 726 over its October 2002 decision to lay off

employees in December 2002.

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On October 6, 2004, the District filed exceptions to ALJ Clifford’s recommended

decision and order. On March 5, 2005, the Board affirmed the ALJ’s decision and, inter

alia ordered the District to: (1) reinstate the laid off employees and make them whole; (2)

on request, bargain collectively with Local 726 about the decision; (3) post notices; and

(4) notify the Board of its actions. The District appeals from the Board's determination.

II. Analysis

A. The District’s Procedural Arguments

The District raises several arguments that the Board exceeded its authority during

the proceedings. "Pursuant to the Act, judicial review of the Board’s decision is limited

and governed by the Administrative Review Law (735 ILCS 5/3-110; 5 ILCS 315/11(e)

(West 2002))". City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191,

204 (1998). When reviewing proceedings under the Administrative Review Law, this

court must determine whether the procedures required by law were taken by the

administrative agency and, if so, whether the decision of the agency was against the

manifest weight of the evidence. Metz v. Illinois State Labor Relations Board, 231 Ill.

App. 3d 1079, 1093 (1992). An administrative agency’s factual determinations are

contrary to the manifest weight of the evidence where the opposite conclusion is clearly

evident. City of Belvidere, 181 Ill. 2d at 205. The reviewing court also has a duty to

examine the procedural methods employed at the administrative hearing to ensure that a

fair and impartial procedure was used. Anderson v. Human Rights Comm'n, 314 Ill.

App. 3d 35, 41 (2000).

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1. The District’s Argument That All Charges in the Complaint Were Settled

The District first contends that the Board erred by conducting a hearing where the

matters raised in the complaint had been resolved by the various memorandums of

understanding entered into by both parties. Contrary to the District’s contention, nothing

in the three MOUs states that Local 726 was to withdraw its charge and amended charge

so far as it concerned an alleged violation by the District to bargain over the October

2002 decision to lay off individuals that resulted in the December layoffs. While the

MOUs stated that various other aspects of the allegations were to be withdrawn, they did

not include the October 2002 decision to lay off individuals.

In addition, Local 726 clarified that it was continuing to pursue this issue in its

letter to a Board investigator on September 11, 2003. In that letter, counsel for Local 726

stated 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.”

Further, on February 16, 2004, counsel for Local 726's letter to counsel for the

District stated that its amended charge alleged that on October 30, 2002, the District

announced a plan to lay off approximately 95 bargaining unit members at the end of the

calendar year for economic reasons. Counsel for Local 726 also stated that while the

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parties met to bargain about the effects of the layoff, “at no time did the Union waive or

withdraw its claim that the decision was made in violation of the law.”

2. Local 726's Amendment to the Complaint

The District also contends that the Board exceeded its authority in granting Local

726's motion to amend the complaint where none of the requirements for allowing

amendments are present in this case. We disagree.

Section 11(a) of the Act provides that “[a]ny such complaint may be amended by

the member or hearing officer conducting the hearing for the Board in his discretion at

any time prior to the issuance of an order based thereon.” 5 ILCS 315/11(a) (West

2002). Under section 1220.50(f) of the Rules and Regulations of the Illinois Labor

Relations Board (Rules) (80 Ill. Admn. Code, amended at 27 Ill. Reg. 7436 (eff. May 1,

2003) § 1220.50(f)), “[t]he Administrative Law Judge, on the judge's own motion or on

the motion of a party, may amend a complaint to conform to the evidence presented in

the hearing or to include uncharged allegations at any time prior to the issuance of the

Judge's recommended decision and order.” The Board’s case law provides two specific

instances in which a complaint may be amended: “(1) where, after the conclusion of the

hearing, the amendment would conform the pleadings to the evidence and would not

unfairly prejudice any party; and (2) to all allegations not listed in the underlying charge,

so long as the added allegations are closely related to the original charge, or grew out of

the same subject matter during the pendency of the case.” Service Employees

International Union, Local 73 v. Village of Wilmette, 20 Pub. Employee Rep. (Ill.) Par.

85, Nos. S-CA-01-231, S-CA-01-233, S-CA-02-125 (May 14, 2004).

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Here, we find that the ALJ properly allowed Local 726 to amend the

complaint where the amendment merely clarified the original allegation and arose out of

the same subject matter as the original allegation. The record showed that as late as

February 2004, when counsel for Local 726 wrote a letter to the District’s counsel, the

parties assumed that paragraph 7 of the complaint referred to the District’s decision in

October 2002 to implement a December 2002 layoff. The amendment merely added that

the October 2002 decision resulted in the December 2002 layoff. The amendment made

clear what the complaint intended and what the parties understood it to mean prior to the

hearing.

The District further argues that the ALJ was required to conduct a new

investigation prior to amending the complaint because the December 2002 layoff was a

new untimely charge. However, we reject the District’s argument where, as previously

discussed, the amendment did not constitute a new charge, but rather clarified the

complaint in this case.

3. The District’s Argument that Only ALJ Cotrupe Was Permitted to Amend the

Complaint and Issue the Recommended Decision and Order

The District argues that as the judge who conducted the hearing, only ALJ

Cotrupe had the authority to amend the complaint. In his recommended decision and

order, ALJ Clifford found that “the proposed amendment adds nothing to paragraph 7 as

originally understood” and “grant[ed] it to avoid any confusion.” However, the

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record shows that during the hearing, ALJ Cotrupe did grant Local 726's amendment to

the complaint then later stated that she would allow the parties to submit further briefs on

the issue. The following exchange took place during the hearing:

“[Counsel for Local 726]: Let’s do it this way: I would like to move

on the record to amend the complaint, and my proposed amendment is the

following: ***

[A]dd to paragraph 7 the sentence, ‘That on December 31, 2002, the Employer

laid off approximately 95 unit employees.’

***

[Counsel for the District]: If that’s his amendment, that’s his amendment.

[ALJ Cotrupe]: Do you oppose it?

[Counsel for the District]: Oppose him amending? He’s going to refile anyway.

So no, I don’t oppose. There is no sense in prolonging it.

[ALJ Cotrupe]: Okay. Then the complaint will be amended.”

Contrary to the District’s contention, ALJ Cotrupe did permit Local 726 to amend the

complaint.

The District also contends that ALJ Clifford had no authority to issue his order

granting the amendment simultaneously with his recommended decision and order. The

District argues that it was deprived of its right to file a written response to the decision to

amend the complaint.

Section 11(a) provides that “[t]he person who is the subject of the complaint has

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the right to file an answer to the original or amended complaint and to appear in person or

by a representative and give testimony at the place and time fixed in the complaint.” 5

ILCS 315/11(a) (West 2002). Here, the District’s counsel was present at the hearing and

presented testimony and other evidence. Counsel was not precluded from filing an

answer to the amendment, but waived his objection to the amendment by stating “I don’t

oppose.” The District also notes that it was able to brief the issue relating to the

amendment in its closing brief. Therefore, the District was not prevented from

presenting its position in this case.

The District further argues that ALJ Clifford lacked the authority to issue his

recommended decision and order where he was not the ALJ who conducted the hearing.

Our supreme court has held that, in the absence of statutory provisions to the

contrary:

“‘[I]t is not necessary that testimony in administrative proceedings be

taken before the same officers who have the ultimate decision-making authority.

[Citations.] *** [A]dministrative proceedings may be conducted by hearing

officers who refer the case for final determination to a board which has not

“heard” the evidence in person. The requirements of due process are met if the

decision-making board considers the evidence contained in the report of

proceedings before the hearing officer and bases its determination thereon.

[Citations.]’” Starkey v. Civil Service Comm’n, 97 Ill. 2d 91, 100 (1983), quoting

Homefinders Inc. v. City of Evanston, 65 Ill. 2d 115, 128 (1976).

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This court has also found that the requirements of procedural due process are also met,

under the Act, when a substituting hearing officer bases his decision not only on the

evidence presented before him but also on the evidence contained in the report of

proceedings before a prior hearing officer. North Shore Sanitary District v. Illinois State

Labor Relations Board, 262 Ill. App. 3d 279, 295 (1994).

Here, ALJ Clifford considered the evidence presented to him as well as the

evidence presented to ALJ Cotrupe during the hearing. In addition, neither party

objected to ALJ Clifford’s assignment to this case after ALJ Cotrupe left the Board’s

employ. ALJ Clifford also noted in his recommended decision and order that he was

unable to discern any credibility issues in this case. See North Shore Sanitary District,

262 Ill. App. 3d at 295 (where credibility is a determining factor in a case, the presiding

hearing officer must participate in the decision). Therefore, the fact that ALJ Clifford,

rather than ALJ Contrupe, made the ultimate recommended decision to the Board is

inconsequential.

The District, nonetheless, cites Gilchrist v. Human Rights Comm’n, 312 Ill. App.

3d 597 (2000), in support of its argument that ALJ Clifford lacked the authority to issue

the recommended decision and order in this case. We find Gilchrist to be

distinguishable. In Gilchrist, this court found that the Human Rights Commission

exceeded its authority where its determination failed to meet the specific requirements of

the Illinois Human Rights Act. This court held that the statutory requirement that the

presiding hearing officer transmit his or her impression of witness credibility to the

hearing officer who authors the findings and recommended order was not met. This

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court also found that the requirement, under the Human Rights Act, that there be no

questions of witness credibility presented by the record as found by the presiding officer

was not met. Unlike Gilchrist, the ALJ in this case was not bound by the specific

requirements under the Human Rights Act. In addition, we agree with ALJ Clifford’s

determination that there were no credibility issues present in this case.

4. The District’s Affirmative Defenses and Motion for Summary Judgment

The District next contends that because Local 726 did not respond to its

affirmative defenses and motion for summary judgment, the District’s affirmative

defenses should have been deemed admitted and the complaint should have been

dismissed or the District’s motion for summary judgment should have been granted.

The District argues that where the Board’s rules are silent, the Board should have applied

provisions of the Illinois Code of Civil Procedure to find that the District’s affirmative

defenses are admitted.

Under the Act, the Board has the obligation to promulgate “procedural rules and

regulations which shall govern all Board proceedings.” 5 ILCS 315/5(I) (West 2002).

Pleading before the Board in unfair labor practice proceedings is governed not by the

Illinois Code of Civil Procedure (Code) (735 ILCS 5/1-101 et seq.) (West 2002)), but

rather by the Board’s Rules (80 Ill. Adm. Code §§ 1200 through 1240) amended at 27 Ill.

Reg. 7436 (eff. May 1, 2003). General Service Employees Union, Local 73, 3 Public

Employee Rep. (Ill.) Par. 3030, Nos. L-CA-87-200, L-CA-87-205 (September 21, 1987),

International Brotherhood of Electrical Workers, Local 193, Public Employee Rep. (Ill.)

Par. 2024, No. S-CA-92-104 (April 30, 1993). This court has also noted that the Code’s

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provisions generally do not apply to administrative proceedings. See Jones v.

Department of Human Rights, 162 Ill. App. 3d 702 (1987); Desai v. Metropolitan

Sanitary District of Greater Chicago, 125 Ill. App. 3d 1031 (1984). This is because

administrative procedure is simpler, less formal and less technical than judicial

procedure. Desai, 125 Ill. App. 3d at 1033.

Also, pursuant to the Board’s Rules, once the complaint for hearing is issued in an

unfair labor practice proceeding, the charging party is not required to file anything.

Section 1220.40(b) of the Rules provides in pertinent part:

“(b) Whenever the Executive Director issues a complaint for hearing, the

respondent shall file an answer within 15 days after service of the complaint and

deliver a copy to the charging party by ordinary mail to the address set forth in

the complaint. ***

***

(2) The answer shall also include a specific, detailed statement of any

affirmative defenses.” 80 Ill. Adm. Code § 1220.40(b)(2), amended at Ill.

Reg. 7436 (eff. May 1, 2003).

Contrary to the District’s contention, the Rules are not silent on the matter of affirmative

defenses. Rather, section 1220.40(b)(2) of the Rules compels a respondent to file an

answer to the complaint and include in the answer any affirmative defenses. However,

there is nothing in the Rules stating that a charging party, such as Local 726, must then

respond to the affirmative defenses. There is also no provision for a respondent to file

any motion or pleading, other than an answer, when served with a complaint. The Rules

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do not provide that if a charging party declines to file a response to a respondent’s

affirmative defenses or summary judgment motion, it will be subject to default judgment.

Further, the standard for granting summary judgment is not whether a party filed

a response but whether the right of the moving party is clear and free from doubt.

Midfirst Bank v. Abney, 365 Ill. App. 3d 636, 643 (2006). "Summary judgment is

appropriate only where 'the pleadings, depositions, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law.' " Midfirst Bank, 365 Ill.

App. 3d at 643, quoting 735 ILCS 5/22-1005(c)(West 2002). When a motion for

summary judgment is unopposed, the court must nonetheless conduct an examination to

determine whether the moving party is entitled to summary judgment. Midfirst Bank,

365 Ill. App. 3d at 643. For these reasons, we reject the District’s argument that its

affirmative defenses should have been deemed admitted and motion for summary

judgment should have been granted against Local 726.

B. Mandatory Subject of Bargaining

The District next contends that its refusal to bargain with Local 726 regarding the

December 2002 layoff did not constitute an unfair labor practice in violation of section

10 of the Act (5 ILCS 315/10 (West 2002)) where the burden on the District to bargain

over the layoff outweighed any benefits to Local 726 and, therefore, was not a mandatory

subject of bargaining.

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Section 10 of the Act provides in pertinent part:

"(a) It shall be an unfair labor practice for an employer or its agents:

(1) to interfere with, restrain or coerce public employees in

the exercise of the rights guaranteed in this Act or to dominate

or interfere with the formation, existence or administration of

any labor organization or contribute financial or other support

to it ***;

***

(4) to refuse to bargain collectively in good faith with a labor

organization which is the exclusive representative of public

employees in an appropriate unit ***." 5 ILCS 315/10(a)(1),

(a)(4) (West 2002).

In resolving whether the District committed an unfair labor practice in violation of these

sections, this court must determine whether the District had a mandatory duty to bargain

collectively with Local 726 regarding the December 2002 layoff.

Before addressing the merits of this issue, we must first address the applicable

standard of review. The issue of whether a public employer is required to bargain over a

specific subject generally involves a mixed question of law and fact, and the applicable

standard of review is "clearly erroneous." City of Belvidere, 181 Ill. 2d at 205. In City of

Belvidere, our supreme court explained that the term "wages, hours, and other conditions of

employment" is a legal term that requires interpretation and found that the Illinois State Labor

Relations Board's determination whether the matter was a mandatory bargaining subject

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involved the factual consideration of whether the bargaining subject in question affected

"wages, hours, and other conditions of employment." City of Belvidere, 181 Ill. 2d at 205.

Under the clearly erroneous standard of review, an agency's decision will be reversed

only where the reviewing court, on the entire record, is " 'left with the definite and firm

conviction that a mistake has been committed.' " AFM Messenger Service, Inc. v.

Department of Employment Security, 198 Ill. 2d 380, 395 (2001), quoting United States v.

United States Gypsum Co., 333 U.S. 364, 395, 92 L. Ed. 746, 766, 68 S. Ct. 525, 542 (1948).

Our supreme court has also stated that, notwithstanding the clearly erroneous standard of

review, an agency's factual findings should be afforded a great deal of deference and will not

be reversed on appeal unless such findings were against the manifest weight of the evidence.

City of Belvidere, 181 Ill.2d at 205. We can now turn to the merits of this appeal.

The Act imposes a duty on a public employer, such as the District, to engage in good-

faith collective bargaining with its employees’ representative under certain circumstances.

Pursuant to section 7 of the Act, an employer has a duty to bargain over issues which affect

"wages, hours, and other conditions of employment." 5 ILCS 315/7 (West 2002). Section 4

of the Act further provides in part: "Employers shall not be required to bargain over matters of

inherent managerial policy ***. Employers, however, shall be required to bargain

collectively with regard to policy matters directly affecting wages, hours and terms and

conditions of employment." 5 ILCS 315/4 (West 2002).

Oftentimes, however, an issue affects both the conditions of employment and

management’s inherent authority. In such a “hybrid” situation, the determination of whether

the employer must collectively bargain can only be resolved by weighing the benefits of

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bargaining with the burdens on management. Central City Education Association v. Illinois

Educational Labor Relations Board, 149 Ill. 2d 496, 523 (1992).

In Central City, our supreme court set forth a three-part test for determining whether a

matter is a mandatory subject of bargaining. Pursuant to the Central City test, a matter is a

mandatory subject of bargaining if it: (1) concerns wages, hours, and terms and conditions of

employment; and (2) is either not a matter of inherent managerial authority; or (3) is a matter

of inherent managerial authority, but the benefits of bargaining outweigh the burdens

bargaining imposes on the employer's authority. Central City, 149 Ill. 2d at 523. Whether a

matter concerns wages, hours, and terms and conditions of employment is a question that the

administrative agency "is uniquely qualified to answer." Central City, 149 Ill. 2d at 523.

Here, the Board relied on this court’s decision in American Federation of State,

County & Municipal Employees v. State Labor Relations Board, 274 Ill. App. 3d 327 (1995)

(AFSCME), in determining that the December 2002 layoff was a mandatory subject of

bargaining. In AFSCME, this court recognized that the employer’s decision to lay off

employees was inextricably connected with the terms and conditions of employment, but that

it also involved a matter of inherent managerial authority. In that case, this court noted that

the reduction in force was motivated primarily, if not exclusively, by economic constraints

resulting from a shortfall in the employer’s budget and that matters relating to overall budget

are within the scope of managerial policy. This court concluded:

“[A]fter weighing the benefits and burdens, it becomes clear that a decision to layoff

employees due to a decrease in State funding truly invites the use of the collective

bargaining process. *** [A] bargaining representative is frequently in the best position

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to provide alternatives which may alleviate economic conditions and avoid employee

layoffs. Not only is the representative authorized to negotiate on behalf of the

employees, but he or she often possesses information which may not be available to

management and which could influence management’s decision to reduce its force.”

AFSCME, 274 Ill. App. 3d at 333.

This court also found that the purported burdens upon management were illusory and affirmed

the State Labor Relations Board’s determination that the layoff was a mandatory subject of

bargaining.

Here, the Board determined that the December 2002 layoff was a mandatory subject of

bargaining based on this court’s analysis in AFSCME. The District argues that the Board

erred by failing to apply the Central City test to this case and failing to weigh the benefits and

burdens of bargaining in this case. However, both parties acknowledged that the lay off was

connected with the terms and conditions of employment and that it also involved a matter of

inherent managerial authority. Contrary to the District’s assertion, the Board did conduct a

benefit and burden analysis of bargaining. The Board agreed with ALJ Clifford’s determi-

nation that the District violated sections 10(a)(1) and (c)(4) of the Act. In his recommended

decision and order, ALJ Clifford specifically included the benefits of bargaining regarding

layoffs, as this court discussed in AFSCME. ALJ Clifford also rejected the District’s

asserted burdens that bargaining would impose upon it. ALJ Clifford determined that the

District’s asserted budgetary problems were not so immediate that bargaining could not have

occurred. ALJ Clifford noted that the District was aware of budgetary issues in February

2002 when it hired a new chief financial officer and adopted a policy to have a balanced

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budget and not borrow funds. The District also announced its plans in October 2002, which

included the December 2002 layoff. Therefore, the District had time to bargain.

Accordingly, we find that the Board properly determined that the District’s decision involved

a mandatory subject of bargaining and that the District committed an unfair labor practice in

violation of sections 10(a)(1) and (a)(4) of the Act.

The District, nonetheless, cites Chicago Transit Authority v. Amalgamated Transit

Union, Local 241, 299 Ill. App. 3d 934 (1998) (CTA) in support of its argument that the

December 2002 layoff was not a mandatory subject of bargaining where Local 726 did not

present any evidence relating to the benefits of bargaining. In CTA, this court upheld the

Board’s determination that the CTA’s decision to reclassify job positions was not a mandatory

subject of bargaining. In CTA, the Board found that the union that filed the unfair labor

practice charge " 'presented no evidence or legal argument to demonstrate that the benefits of

bargaining over the particular reclassification decision *** outweighed the burdens that

bargaining would impose on CTA’s authority to administer its position classification

system.' " CTA, 299 Ill. App. 3d at 939. Unlike CTA, in this case, the Board relied on legal

arguments regarding the benefits of bargaining relating to layoffs, as this court discussed in

AFSCME. The Board also rejected the District’s asserted burdens that bargaining would

impose upon it. We find no error in the Board’s application of the Central City test, where it

considered the benefits and burdens of bargaining.

The District also contends that, even if its decision was a mandatory subject of

bargaining, Local 726 waived any right to bargain about the decision to conduct a layoff.

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A party to a collective bargaining agreement may waive its rights to bargain under the

Act where the contractual language evinces an unequivocal intent to relinquish such rights.

AFSCME, 274 Ill. App. 3d at 334. However, evidence that a party to a labor agreement

intended to waive a statutory right must be clear and unmistakable. The language sustaining

the waiver must be specific and waiver is never presumed. AFSCME, 274 Ill. App. 3d at 334.

We find that no clear and unmistakable intent to waive rights to bargain exists in this

case. The District points to the management rights clause of the collective bargaining

agreement as reserving the District’s right to lay off employees. However, that clause does

not mention layoffs or reductions in force. The District cites AFSCME in support of its

argument that such clauses can constitute waiver, but in that case it was critically important

that the clause expressly included as management functions the right " 'to relieve employees

from duty because of lack of work or other legitimate reasons; [and] to determine the size and

composition of the work force.' " AFSCME, 274 Ill. App. 3d at 334-35. No such language

appears in the collective bargaining agreement in this case. The District has therefore failed

to demonstrate that the contractual provisions constitute “clear and unmistakable” evidence

of waiver.

The District further argues that by engaging in impact bargaining and accepting the

benefits of the MOUs, Local 726 waived its right to bargain regarding the District’s decision

to implement layoffs in December 2002. However, the first MOU expressly dealt only with

the golf and driving range privatization. It also included a statement 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." The second

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MOU explicitly stated that the parties wished to resolve "certain of these matters" and the

third MOU stated that the parties wished to settle "all disputes between them regarding the

reorganization, elimination of positions, unit placement of RT’s and Resource Aides, and the

hiring of RT’s." No waiver is clear and unmistakable on the face of these documents. In

addition, the second and third MOUs were entered into after Local 726 filed its charge about

the decision to lay off employees in December 2002, yet nothing in the MOUs required Local

726 to withdraw that aspect of the charge although Local 726 was required to withdraw other

portions of the charge.

Further, there is no evidence that the District’s representatives offered to bargain or

attempted to bargain about Local 726 waiving any right to bargain about the District’s

decision. The evidence showed that the District’s representatives refused to bargain about the

decision to lay off employees in December 2002. Local 726's counsel, Green, testified that

the parties never bargained about the District’s decision to have the layoffs and that Local 726

made it clear that it would bargain about the effects, but would not in any way waive its

position that the District was required to bargain about the decision. Green also testified that

he did not recall the management rights clause being mentioned during negotiations and that

if the parties had agreed on a layoff provision during contract negotiations, they could have

put that agreement in the collective bargaining agreement. For these reasons, we conclude

that the evidence fails to demonstrate that Local 726, in a clear and unmistakable manner,

waived its right to bargain about the decision to conduct the December 2002 layoff.

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C. Local 726's Unit Clarification Petition

The District lastly contends that the Board should not have amended the description of

the bargaining unit because Local 726 had agreed to withdraw its UC Petition.

The record shows that on September 20, 2004, the Acting Executive Director issued

an order and certification of clarified unit in case No. L-UC-03-002, which added the

District’s newly created title of Resource Technician to the existing historical bargaining unit

represented by Local 726. The record also shows that in MOU II, the District and Local 726

agreed that "the Union will withdraw its pending UC petition before the ILRB, Case No. L-

UC-03-002." However, in that same memorandum of understanding, the parties also agreed

that “[t]he RT [resource technician] position will be added to the bargaining unit and the

Parties agree to take all steps necessary to accomplish this accretion, including jointly

petitioning the ILRB, if necessary, for an amendment to the existing unit description.” Also,

at the hearing, counsel for Local 726 stated: “With respect to the third issue, on the record

today we would like to amend the UC petition, per an agreement with the Forest Preserve, to

just include the title of Resource Technician.” Counsel for the District then responded,

"That’s fine. We have no objections." Accordingly, the District is precluded from arguing

that the Board erred in amending the bargaining unit description on appeal.

III. Conclusion

For the above-stated reasons, we affirm the Board’s determination that the District’s

decision to layoff employees was a proper subject for mandatory bargaining, that Local 726

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did not waive bargaining over that issue, and that the District committed an unfair labor

practice under sections 10(a)(1) and (4) of the Act by failing to comply with bargaining

requirements.

Affirmed.

CAMPBELL and NEVILLE, JJ., concur.

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