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Appellate Court Date: 2018.12.04
13:29:13 -06'00'
Illinois Troopers Lodge No. 41 v. Illinois Labor Relations Board, State Panel,
2018 IL App (1st) 171382
Appellate Court ILLINOIS TROOPERS LODGE NO. 41, FRATERNAL ORDER OF
Caption POLICE, Petitioner, v. THE ILLINOIS LABOR RELATIONS
BOARD, STATE PANEL; and THE DEPARTMENT OF CENTRAL
MANAGEMENT SERVICES (STATE POLICE), Respondents.
–THE DEPARTMENT OF CENTRAL MANAGEMENT
SERVICES (STATE POLICE), Petitioner, v. ILLINOIS TROOPERS
LODGE NO. 41, FRATERNAL ORDER OF POLICE; and THE
ILLINOIS LABOR RELATIONS BOARD, STATE PANEL,
Respondents.
District & No. First District, Sixth Division
Docket Nos. 1-17-1382, 1-17-2003 cons.
Filed October 5, 2018
Decision Under Petition for review of order of the Illinois Labor Relations Board,
Review State Panel, No. S-CB-16-023.
Judgment Board decision affirmed.
Counsel on Asher, Gittler & D’Alba, Ltd., of Chicago (Joel A. D’Alba and Ryan
Appeal A. Hagerty, of counsel), for petitioner Illinois Troopers Lodge No. 41.
Lisa Madigan, Attorney General, of Chicago (David L. Franklin,
Solicitor General, and Ann C. Maskaleris, Assistant Attorney General,
of counsel), for respondent Illinois Labor Relations Board.
Thomas S. Bradley, Mark W. Bennett, David A. Moore, and Darin M.
Williams, Special Assistant Attorneys General, of Laner Muchin,
Ltd., of Chicago, for respondent State of Illinois.
Panel PRESIDING JUSTICE DELORT delivered the judgment of the court,
with opinion.
Justices Connors and Harris concurred in the judgment and opinion.
OPINION
¶1 The State of Illinois Department of Central Management Services (State) filed an unfair
labor practice charge before the Illinois State Labor Relations Board, State Panel (Board),
against Illinois Troopers Lodge No. 41, Fraternal Order of Police, a union representing a unit
of state police officers (the union). The Board dismissed the unfair labor practice charge and
denied the union’s motion for sanctions against the State. Both the Board and the union have
sought direct administrative review of the decision in this court. We affirm both the Board’s
dismissal of the unfair labor practice charge and the Board’s decision not to impose sanctions
against the State.
¶2 BACKGROUND
¶3 The union is the bargaining unit for about 1500 state police officers. Because of the nature
of their work, the officers in the union are not allowed to strike. 5 ILCS 315/2, 14, 17 (West
2016). This court has explained how the bargaining process operates with respect to groups of
employees who may not strike:
“Mandatory subjects of bargaining are those matters that neither party can refuse to
negotiate. [Citation.] If an agreement cannot be reached, impassed mandatory subjects
must be decided by the arbitrator. [Citation.] On the other hand, permissive subjects of
bargaining are terms that the parties are not required to negotiate, but if one side
proposes negotiation on those matters, the other side may voluntarily negotiate.
[Citation.] A party cannot insist on bargaining over a permissive subject to the point of
impasse and negotiation can be cut off at any time without recourse. [Citation.]
Permissive subjects of bargaining are not to be decided by the arbitrator.” Skokie
Firefighters Union, Local 3033 v. Illinois Labor Relations Board, State Panel, 2016 IL
App (1st) 152478, ¶ 6.
¶4 Pursuant to the State Employees Group Insurance Act of 1971 (Group Insurance Act) (5
ILCS 375/1 et seq. (West 2016)), the State administers a plan providing health insurance
coverage to about 350,000 state employees, dependents, and retirees, including the police
officers who are members of the union. Section 7 of the Illinois Public Labor Relations Act
(Labor Relations Act) requires the State and union to collectively bargain with employee
unions over matters concerning “wages, hours and other conditions of employment.” 5 ILCS
315/7 (West 2016). However, the State is not required to bargain over matters that are “matters
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of [the State’s] inherent managerial policy” as defined in section 4 of the Labor Relations Act
(id. § 4).
¶5 The Labor Relations Act has long contained a “supremacy clause” providing that it takes
precedence over conflicting state laws. Id. § 15(a). In 2004, the State of Illinois enacted Public
Act 93-839, which amended both the Labor Relations Act and the Group Insurance Act. Pub.
Act 93-839 (eff. July 30, 2004). Public Act 93-839 excised benefits provided under the Group
Insurance Act from the Labor Relations Act’s “supremacy clause.” Section 15(a) of the Labor
Relations Act now provides: “In case of any conflict between the provisions of this Act and
any other law (other than Section 5 of the State Employees Group Insurance Act of 1971 ***),
executive order or administrative regulation relating to wages, hours and conditions of
employment and employment relations, the provisions of this Act or any collective bargaining
agreement negotiated thereunder shall prevail and control.” (Emphasis added.) 5 ILCS
315/15(a) (West 2016).
¶6 With that legal backdrop in place, we proceed to explain the facts of the case now before
us. The record is 21,909 pages long, so we have omitted large portions of background and facts
that are not relevant to our ultimate disposition. To avoid repetition and provide reading
continuity, we will set forth some additional facts later in the Analysis section of this opinion.
The following chronology and recitation of facts is taken from the pleadings, exhibits,
affidavits, and other evidence in the record, most of which was adduced at a 10-day hearing
before a Board administrative law judge on the unfair labor practice charge.
¶7 In 2015, the State and the union were in the process of bargaining a successor collective
bargaining agreement to replace an existing agreement set to expire on June 30, 2015. Two
union officials, Bruce Bialorucki and Michael Powell, negotiated the union’s 2012-2015
collective bargaining agreement with the State. Health insurance was a significant issue during
that bargaining. The parties exchanged various proposals aimed at saving the State some of its
health insurance costs. No agreement was reached, and the union filed an unfair labor practice
charge against the State. The Board’s general counsel issued a declaratory ruling that health
insurance was a mandatory subject of bargaining. An arbitrator awarded the health insurance
plan that the State had previously implemented unilaterally.
¶8 Bialorucki, who is an attorney, also participated in negotiations for the successor
2015-2019 collective bargaining agreement. Once again, the parties exchanged numerous
written proposals regarding health insurance. Bialorucki testified regarding those negotiations
as follows. The State never contended that it was not required to bargain over health insurance
during the negotiation sessions, at the bargaining table, or before interest arbitration. There
being no agreement on the issue, interest arbitration began before a three-member panel
consisting of Bialorucki as the union representative, Joseph Hartzler representing the State,
and a neutral arbitration panel member, Daniel Nielsen. The panel had over a dozen sessions
beginning in late 2015 and ending in April 2016. Bialorucki attended every session. Both the
union and State submitted health insurance proposals to the panel. Both sides stipulated to the
arbitration panel’s jurisdiction over health insurance, and the State did not object to arbitrating
health insurance issues until the “final submissions” stage at the very end. The “process” in
place required each party to submit final offers. The other party could submit an objection to
that final offer, and the submitting party could file something to “cure or fix” its final offer.
However, because the union was waiting for certain information, the parties agreed to submit
final offers on all issues except health insurance first, to be followed by final offers on health
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insurance only. During the time final offers were being exchanged regarding
non-health-insurance issues, the State provided health insurance information to the union as
requested. In early January 2016, the parties exchanged final offers regarding health insurance.
This exchange included a final offer from the State and objections by the union to the State’s
offer.
¶9 Despite its active participation in ongoing bargaining regarding health insurance, on
January 13, 2016, the State requested a declaratory ruling from the Board’s general counsel on
whether its own final offer on health insurance encompassed permissive or mandatory subjects
of bargaining. The State requested that the general counsel find that Public Act 93-839’s
amendment to the “supremacy clause” in 2004 made health insurance a prohibited subject of
bargaining, with the result that the State could take the issue of health insurance entirely out of
postimpasse arbitration if it desired to do so. See Skokie Firefighters Union, Local 3033, 2016
IL App (1st) 152478, ¶ 6. On March 1, 2016, the general counsel ruled that the State’s final
offer related to a mandatory subject of bargaining. This ruling relied on an earlier 2013 ruling
issued by a prior general counsel to the same effect. But recognizing that the issue would be
better resolved after a full factual hearing, the general counsel suggested that a party file an
unfair labor practice charge to trigger such a hearing. The State followed up on that suggestion
and filed the charge at issue here on March 14, 2016.
¶ 10 The arbitration panel’s hearings concluded in April 2016. In a posthearing brief filed in
June, the State referenced its pending unfair labor practice charge but noted: “For purposes of
efficiency and without waiving any arguments raised by the State before the [Board] which
could impact this panel’s jurisdiction to issue an award on health insurance, until such time as
the [Board] issues a ruling in that matter, the State does not object to this panel’s consideration
of the parties’ respective health insurance proposals.”
¶ 11 Then, in August 2016, the Board directed that a complaint issue on the charge and that an
administrative hearing be held on it. One day later, the State notified the arbitration panel
(which had already closed its record on July 1, 2016) that it now had a “good faith objection” to
the arbitration panel deciding the health insurance issue, based on the Board’s order. The State
requested a stay of the arbitration pending the Board’s resolution of the unfair labor practice
charge. Bialorucki characterized the State’s August notification as the first time the State
objected to arbitrating health insurance. Despite the Board having issued a complaint on its
unfair labor practice charge, the State did not withdraw its pending final health insurance offer.
¶ 12 On October 3, 2016, the arbitration panel denied the State’s request for a stay. The panel
found that the State did not make its objection to arbitrating health insurance in “good faith” as
required by the Board’s rules (80 Ill. Adm. Code 1230.90(k) (2003)), because the State did not
object until seven months after the January 2016 objections deadline that the panel had set. The
panel further found that the Board’s decision to issue a complaint and hold an evidentiary
hearing on the unfair labor practice charge was not relevant to its consideration of the stay
request. As an alternative ground, the panel relied on the Board general counsel’s prior ruling
that health insurance was a mandatory subject of bargaining. On December 2, 2016, the
arbitration panel issued an award that granted the union’s health insurance proposal. About the
same time, the Board also denied the State’s request for a stay.
¶ 13 The next proceedings involved an entity established by sections 3(h) and 14(n) of the
Labor Relations Act (5 ILCS 315/3(h), 14(n) (West 2016)) called the “governing body.” The
governing body consists of various State department heads and the members of the Board. The
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governing body has the authority to reject an arbitration panel’s award and return the matter for
supplemental arbitration proceedings. Id. On December 13, 2016, the governing body rejected
the arbitration panel’s award, and the matter proceeded to supplemental arbitration
proceedings.
¶ 14 That brings us back to the unfair labor practice charge. The complaint issued on the charge
proceeded to a full evidentiary hearing before the Board’s administrative law judge. Hearings,
which included Bialorucki’s testimony, were held on various dates between October 18, 2016,
and January 6, 2017. At the conclusion of the hearings, the union moved for sanctions because,
among other things, a State witness allegedly provided false testimony regarding the State’s
past bargaining practices, namely that the State had never bargained with any union other than
the American Federation of State, County, and Municipal Employees (AFSCME) over health
insurance. The union also objected to similar assertions the State’s counsel made in his
opening statements. The State responded that sanctions were not warranted because the issue
was one of genuine disputed fact.
¶ 15 On March 31, 2017, the administrative law judge issued a 106-page opinion exhaustively
detailing the testimony and evidence presented at the nine-day hearing. In summary, she found
that the State had bargained over health insurance with employee unions for over 28 years. The
State primarily bargained over health insurance with the AFSCME union, which represented
the largest number of employees. Through the acquiescence of smaller unions, which allowed
AFSCME to take the lead, the terms of the AFSCME agreement were generally applied to
other bargaining units. However, beginning in 2015, the State began bargaining over health
insurance with other unions before it had reached an agreement with AFSCME. Generally,
health insurance bargaining did not include vendor contracts and overall premium rates. The
premium rates that were negotiated with unions concerned the share of the insurance premium
cost that employees would pay vis-à-vis the State. The judge found that the State and union
exchanged numerous health insurance proposals during the 2015 negotiations and the State
never objected to the topic’s inclusion in the bargaining process. She also found that the State
never objected to including health insurance in the interest arbitration convened following the
parties’ impasse and, in fact, that the parties stipulated to the “arbitrator’s jurisdiction over
wages, hours, and conditions of employment, including health insurance.” Further, she stated,
the State did not even make a reservation of rights regarding the topic before submitting its
final proposals and that the matter proceeded to interest arbitration at which the State never
objected to the inclusion of health insurance as a topic of bargaining. The judge found that the
State did not object to the consideration of health insurance in its June 2016 arbitration brief
and had not objected before filing its August 9, 2016, stay request.
¶ 16 Notwithstanding her findings regarding the State’s failure to make a timely objection to
consideration of health insurance, the administrative law judge addressed the merits of the
State’s contention that the Public Act 93-839 amendments took the entire issue of health
insurance outside of the scope of the collective bargaining process. She disagreed with the
State’s interpretation of the relevant statutes and found that health insurance, in all of its
aspects, was a mandatory subject of bargaining.
¶ 17 The administrative law judge granted the union’s motion for sanctions in part and denied in
part. She declined to impose a sanction on the basis that the State engaged in frivolous
litigation, finding in relevant part as follows:
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“there is insufficient evidence that the State advanced the disputed claim for the
purpose of delay or to needlessly increase costs. At the time the State claimed that it
had never bargained health insurance with unions other than AFSCME, it already knew
that Union planned to call at least one witness on the issue of the State’s bargaining
history. From the State’s perspective, its claim would not have changed the course of
the hearing and it is therefore difficult to find that the State made the claim for purposes
of delay or to increase the Union’s costs.”
She likewise denied sanctions for the opening statement comments of the State’s counsel,
noting that doing so would be unprecedented in unfair labor practice charge hearings.
However, she granted the union’s motion for sanctions regarding the testimony of the State’s
witness who claimed that the State had never bargained over health insurance with any union
other than AFSCME. The administrative law judge found that those statements were untrue, in
that “the evidence without a doubt proved the contrary” because “[t]he State repeatedly
bargained over health insurance with many unions other than AFSCME, most notably, the
respondent union in this case.” The sanction was an “admonishment” rather than an award of
fees and costs, which the union had sought.
¶ 18 The administrative law judge concluded that (1) the union did not violate section 10(b)(4)
of the Labor Relations Act when it submitted its proposal on health insurance to the arbitration
panel, (2) health insurance is a mandatory subject of bargaining, and (3) the union’s motion for
sanctions should be denied in part and granted in part, as explained above. She dismissed the
complaint brought under the unfair labor charge, subject to the filing of exceptions and the
Board’s consideration of those exceptions.
¶ 19 Both parties filed exceptions to the administrative law judge’s recommended decision and
order. On July 11, 2017, the Board issued a written decision and order that (1) accepted and
adopted the administrative law judge’s findings of fact; (2) determined that the union did not
commit an unfair labor practice when it submitted the issue of health insurance to arbitration
and refused to withdraw it; (3) health insurance premiums, copayments, deductibles, and
out-of-pocket maximums (OPMs) are mandatory subjects of bargaining; and (4) procurement
and choice of vendor are permissive subjects of bargaining. In so holding, the Board
specifically rejected the State’s contention that the Public Act 93-839 amendments to section
15(a) of the Labor Relations Act took health insurance completely outside the scope of
collective bargaining. The Board rejected the administrative law judge’s recommendation to
sanction the State with an admonishment, finding that sanctions were not warranted in light of
“the extensive record of this case, the amount of time devoted to describing the bargaining
history, and the State’s legal arguments regarding the duty to bargain.”
¶ 20 Although it held that certain aspects of health insurance were permissive, rather than
mandatory, subjects of bargaining, the Board nonetheless dismissed the unfair labor charge,
finding that the State interposed its objection too late. The Board explained as follows:
“Based on the conduct of both parties, and their bargaining history, the Union did not
have a clear indication that health insurance was a permissive subject of bargaining,
nor did the State timely and clearly object to consideration of this issue by the interest
arbitration panel. Therefore, we find that the Union did not commit an unfair labor
practice when it insisted that health insurance proposals be submitted to and considered
by the interest arbitrator and panel.”
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¶ 21 Both the State and the union have filed petitions for administrative review of the Board’s
decision in this court pursuant to Illinois Supreme Court Rule 335 (eff. July 1, 2017). This
court consolidated the two petitions.
¶ 22 ANALYSIS
¶ 23 Union’s Petition for Review (Case No. 1-17-1382)
¶ 24 We first address the union’s petition for review, which contains two primary contentions.
First, the union takes issue with the Board’s parsing of the various elements of health
insurance, finding some to be mandatory subjects of bargaining but others only permissive
subjects. Second, the union requests that this court reverse the Board’s determination not to
impose sanctions on the State.
¶ 25 The administrative law judge found that health insurance, as a whole, is a mandatory
subject of bargaining under the test established in Central City Education Ass’n v. Illinois
Educational Labor Relations Board, 149 Ill. 2d 496, 523 (1992). The Central City court
established a three-part test to determine whether a matter is a permissive or mandatory subject
of bargaining:
“The first part of the test requires a determination of whether the matter is one of
wages, hours and terms and conditions of employment. *** If the answer to this
question is no, the inquiry ends and the employer is under no duty to bargain.
If the answer to the first question is yes, then the second question is asked: Is the
matter also one of inherent managerial authority? If the answer to the second question
is no, then the analysis stops and the matter is a mandatory subject of bargaining. If the
answer is yes, then the hybrid situation *** exists: the matter is within the inherent
managerial authority of the employer and it also affects wages, hours and terms and
conditions of employment.” Id.
¶ 26 The administrative law judge determined that all five elements of health insurance at
issue—premiums, deductibles, copayments, OPMs, and procurement/vendors—were
mandatory subjects of bargaining. The Board modified that recommendation. It found that
“those items that directly impact the compensation of covered employees—namely, premiums,
deductibles, co-payments, and OPMs,” were mandatory subjects of bargaining pursuant to
Central City. But the Board found that items that “did not bear on wages or terms and
conditions of employment, including choice of vendor and procurement of health care” were
permissive subjects of bargaining.
¶ 27 The union requests us to reverse the Board and reinstate the administrative law judge’s
determination on this particular issue. It contends that choice of vendor and procurement are
mandatory, rather than permissive, subjects of bargaining, and it seeks review of the Board’s
decision on that basis. But it is a basic principle of Illinois law that “one who has obtained ***
all that has been asked for” in the lower tribunal “cannot appeal from the judgment.” Material
Service Corp. v. Department of Revenue, 98 Ill. 2d 382, 386 (1983) (citing cases). Further, our
supreme court has explained, “ ‘It is fundamental that the forum of courts of appeal should not
be afforded to successful parties who may not agree with the reasons, conclusion or findings
below.’ ” Id. (quoting Illinois Bell Telephone Co. v. Illinois Commerce Comm’n, 414 Ill. 275,
282-83 (1953)); see also Finko v. City of Chicago Department of Administrative Hearings,
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2016 IL App (1st) 152888, ¶ 27 (rejecting appeal of party who obtained a full refund of a fee he
paid but insisted that it should be paid by the City of Chicago rather than the court clerk).
¶ 28 The union never filed any affirmative litigation of its own before the Board. The case
before the Board, and before this court, solely involves the State’s charge that the union
engaged in an unfair labor practice, and the complaint that the Board issued on that charge.
Section 11(c) of the Labor Relations Act (5 ILCS 315/11(c) (West 2016)) provides that “[i]f
there is no preponderance of evidence to indicate to the Board that the person named in the
charge has engaged in or is engaging in the unfair labor practice, then the Board shall state its
findings of fact and shall issue an order dismissing the complaint.” Since the union obtained all
the relief it was entitled to—a dismissal of the unfair labor charge—it cannot complain about
the Board’s rationale in reaching that result. See Illinois Bell, 414 Ill. at 282-83.
¶ 29 As its second contention of error, the union takes issue with the Board’s refusal to grant
sanctions against the State because one of the State’s witnesses testified that the State had not
bargained over health insurance with unions other than AFSCME in the past. The
administrative law judge recommended that the State be sanctioned with an admonishment
because of that testimony. The Board found, however, that sanctions were not warranted. The
Board explained there was an “extensive record in this case” and noted “the amount of time
devoted to describing the bargaining history, and the State’s legal arguments regarding the
duty to bargain.” The Board determined that sanctions were not appropriate because the
testimony did not ultimately impact the case, the State’s pursuit of the point was not clearly
frivolous, and the testimony stemmed from a factual dispute. In this court, the union requests
reinstatement of the admonishment and an award of fees and costs.
¶ 30 Section 11(c) of the Labor Relations Act governs sanctions that the Board may impose. It
provides, in relevant part, the following:
“The Board’s order may in its discretion also include an appropriate sanction, based on
the Board’s rules and regulations, and the sanction may include an order to pay the
other party or parties’ reasonable expenses including costs and reasonable attorney’s
fee, if the other party has made allegations or denials without reasonable cause and
found to be untrue or has engaged in frivolous litigation for the purpose of delay or
needless increase in the cost of litigation; the State of Illinois or any agency thereof
shall be subject to the provisions of this sentence in the same manner as any other
party.” 5 ILCS 315/11(c) (West 2016).
¶ 31 We review the Board’s determination not to impose sanctions for abuse of discretion. City
of Bloomington v. Illinois Labor Relations Board, State Panel, 2011 IL App (4th)
100778, ¶ 17. An abuse of discretion exists where the underlying decision is arbitrary, fanciful,
or unreasonable, such that no reasonable person would take the view adopted by the tribunal.
Seymour v. Collins, 2015 IL 118432, ¶ 41.
¶ 32 On this record, we cannot say that the Board abused its discretion in refusing to impose
sanctions for the testimony at issue and the related opening statement comments. The
testimony was isolated and hardly led anyone astray. The Board correctly recognized that,
based on the full and exhaustive record, the testimony did not “ultimately impact the case” and
that the testimony involved “a fact dispute about the collective bargaining history.” We must
agree. The record contains evidence that the State had a history of bargaining health insurance
with AFSCME with the intent that “lead” bargaining would apply to smaller unions. While the
witness’s testimony that AFSCME was the only union with which the State bargained over
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health insurance was imprecise and ultimately found to be inaccurate, the underlying facts
were complex and nuanced. In sum, we cannot say the Board abused its discretion in refusing
to impose a sanction for it, nor for the related arguments of counsel.
¶ 33 State’s Petition for Review (Case No. 1-17-2003)
¶ 34 In its petition for review, the State asks us to determine that the Board erred in dismissing
the unfair labor practice charge. The State focuses most of its arguments on its contention that
the Board erred in finding that any aspect of health insurance was either a mandatory or
permissive subject of bargaining. The State takes the position that the Public Act 93-839
amendments made health insurance a completely prohibited subject of collective bargaining.
The Board interpreted the relevant statutes differently and rejected this contention. The second
part of the Board’s decision, which addresses this issue, contains no language linking its
interpretation of Public Act 93-839 to its disposition of the unfair labor practice charge.
Therefore, it appears that the Board’s decision regarding that issue is akin to dicta and that the
Board’s interpretation of the Public Act did not provide an independent basis to dismiss the
unfair labor charge.
¶ 35 In contrast, the Board specifically found that the union did not commit an unfair labor
practice because the State did not timely object to consideration of health insurance by the
arbitration panel—or put another way, because the State forfeited its right to object to
arbitrating the health insurance impasse. In the conclusion of the first part of its decision, the
Board stated: “Therefore, we find that the Union did not commit an unfair labor practice when
it insisted that health insurance proposals be submitted to and considered by the interest
arbitrator and panel.”
¶ 36 We begin, therefore, with the Board’s finding regarding the State’s forfeiture. The
Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2016)) governs our review of the
Board’s decision. The scope of that review “extend[s] to all questions of law and fact presented
by the entire record before the court.” Id. § 3-110. “The applicable standard of review ***
depends upon whether the question presented is a question of fact, a question of law, or a
mixed question of law and fact.” Marconi v. Chicago Heights Police Pension Board, 225 Ill.
2d 497, 532 (2006). The Board’s findings of fact are “held to be prima facie true and correct”
(735 ILCS 5/3-110 (West 2016)) and will be disturbed on review only if they are against the
manifest weight of the evidence. City of Belvidere v. Illinois State Labor Relations Board, 181
Ill. 2d 191, 204 (1998). The Board’s findings of fact are against the manifest weight of the
evidence only if the opposite conclusion is clearly evident. Id.
¶ 37 After it adopted all of the administrative law judge’s factual findings regarding the
bargaining history between the parties, the Board recited some of them in detail to explain why
the union did not commit an unfair labor practice. This history included the following facts:
(1) the State “never clearly and formally objected to the interest arbitration panel considering
the issue of health insurance”; (2) although the State filed the unfair labor practice charge in
March 2016, it made statements in its June 2016 arbitration brief and in its August 2016 Board
filings “that it believed health insurance was a permissive subject of bargaining”; (3) the
State’s objections were not made in “good faith” because “they were raised too late, after the
parties had stipulated to health insurance as an issue before the arbitrator, had engaged in
bargaining regarding health insurance, and had exchanged proposals on health insurance”;
(4) given this conduct, the union had no clear indication that it should withdraw or amend its
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health insurance proposal; and (5) the State did not timely and clearly object to the arbitration
panel’s consideration of the subject. All of these facts are well supported by the record adduced
before the Board—not only the voluminous documentary history of the bargaining process
between the parties but also the testimony of Bruce Bialorucki.
¶ 38 Whether an unfair labor practice has been committed presents a mixed question of fact and
law. City of Belvidere, 181 Ill. 2d at 205. Mixed questions of fact and law “ ‘are questions in
which the historical facts are admitted or established, the rule of law is undisputed, and the
issue is whether the facts satisfy the statutory standard, or to put it another way, whether the
rule of law as applied to the established facts is or is not violated.’ ” (Internal quotation marks
omitted.) Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200,
211 (2008) (quoting American Federation of State, County & Municipal Employees, Council
31 v. Illinois State Labor Relations Board, 216 Ill. 2d 569, 577 (2005)). Under this standard,
the Board’s decision will be reversed only when the decision is clearly erroneous, that is,
when, based on the entire record, we are “ ‘left with the definite and firm conviction that a
mistake has been committed.’ ” (Internal quotation marks omitted.) Board of Trustees of the
University of Illinois v. Illinois Education Labor Relations Board, 224 Ill. 2d 88, 97 (2007)
(quoting AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380,
395 (2001)).
¶ 39 Based on our review of the entire record, we are unable to find that the Board’s decision to
dismiss the unfair labor practice charge because of the State’s tardy objection was clearly
erroneous. After leading the union down a costly primrose path for months (if not years) by
bargaining over the troopers’ health insurance to the point of exhaustion, the State pulled the
rug out from under the union by formally objecting to bargaining over health insurance at all.
When it did so, the deadline for objections had long passed, and the impasse had been fully
submitted to the arbitration panel. As noted above, the arbitration panel’s proceedings
concluded in April 2016. In its posthearing brief filed in June, the State referred to its just-filed
unfair labor practice charge, but it contradictorily stated that it would allow the arbitration
panel to consider the health insurance impasse “[f]or purposes of efficiency” and further
stated, “the State does not object to this panel’s consideration of the parties’ respective health
insurance proposals” (emphasis added). The State, in essence, was trying to have it both ways.
It cannot do this and justifiably claim the union was committing an unfair labor charge by
taking health insurance to postbargaining impasse arbitration.
¶ 40 Because we find that the Board properly dismissed the entire unfair labor practice charge
on the basis that the State acquiesced to bargaining the disputed issues and did not interpose a
timely objection, we have no need to resolve the parties’ dispute regarding the interpretation of
the Labor Relations Act and the State Employees Group Insurance Act and determine which, if
any, elements of health insurance are properly subjects of mandatory or permissive bargaining.
¶ 41 CONCLUSION
¶ 42 We affirm the Board’s order dismissing the unfair labor practice charge and denying
sanctions against the State.
¶ 43 Board decision affirmed.
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