Opinion
2-21-0271
09-29-2022
THE COUNTY OF DU PAGE, Petitioner, v. THE ILLINOIS LABOR RELATIONS BOARD, STATE PANEL, and THE AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 31, Respondents.
Attorneys for Appellant: David L. Miller, of Rock Fusco & Connelly, LLC, of Chicago, for petitioner. Attorneys for Appellee: Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz, Solicitor General, and Laura Wunder, Assistant Attorney General, of counsel), for respondent Illinois Labor Relations Board, State Panel. Melissa J. Auerbach, of Dowd, Bloch, Bennett, Cervone, Auerbach & Yokich, LLP, of Chicago, for other respondent.
On Petition for Administrative Review from the Illinois Labor Relations Board, State Panel. ILRB Case No. S-CA-19-116
Attorneys for Appellant:
David L. Miller, of Rock Fusco & Connelly, LLC, of Chicago, for petitioner.
Attorneys for Appellee:
Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz, Solicitor General, and Laura Wunder, Assistant Attorney General, of counsel), for respondent Illinois Labor Relations Board, State Panel.
Melissa J. Auerbach, of Dowd, Bloch, Bennett, Cervone, Auerbach & Yokich, LLP, of Chicago, for other respondent.
JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justice Jorgensen concurred in the judgment and opinion. Justice McLaren dissented, with opinion.
OPINION
SCHOSTOK, JUSTICE
¶ 1 This appeal arises out of a decision and order of the Illinois State Labor Relations Board, State Panel (Board), finding that the County of Du Page (County) committed an unfair labor practice under sections 10(a)(1) and 10(a)(4) of the Illinois Public Labor Relations Act (Act) (5 ILCS 315/10(a)(1), (a)(4) (West 2018)). This case involves the specific time period after union certification but prior to the execution of a first contract. The Board determined that the County had committed an unfair labor practice because it failed to provide notice and an opportunity to bargain prior to the dismissal of Jeannell Gatson, one of the County's employees who was represented by the American Federation of State, County, and Municipal Employees, Council 31 (Union). The Board found that the County had violated the Act also by refusing to bargain, upon the Union's request, after the discharge. The Board applied its decision retroactively and issued a remedy that included the duty to bargain over the discharge and also reinstatement and back pay for Gatson. The County appeals from the decision of the Board. We affirm in part, reverse in part, and vacate in part.
¶ 2 I. BACKGROUND
¶ 3 On May 31, 2019, the Union filed an unfair labor practice charge with the Board. On September 30, 2019, following an investigation, the Board's executive director issued a complaint for hearing. The complaint alleged that, in November 2018, the Board certified the Union as the exclusive representative of a bargaining unit composed, in part, of "registry" employees holding the title of certified nursing associate. In late January 2019, the County discharged Gatson, a registry employee. At that time, the Union and the County were still in the process of negotiating an initial collective bargaining agreement and had not yet executed a contract. After Gatson's termination, the Union sent the County a demand to bargain over the discharge, but the County refused. The complaint alleged that the County violated sections 10(a)(4) and 10(a)(1) of the Act (id.), by failing to bargain in good faith over Gatson's termination and its effects. In its answer, the County denied that it violated the Act.
¶ 4 On December 12, 2019, a hearing was held before an administrative law judge (ALJ). The evidence indicated that Gatson's employer, the DuPage Care Center, was a short- and long-term care facility for residents of the County. It was staffed by various full-time, part-time, and registry employees. Registry employees were licensed nurses or certified nursing associates. The registry employees were considered temporary employees and received no benefits but were paid at a higher rate and expected to fill in on holiday, weekend, and other shifts. Registry employees signed a registry agreement that required them to work a minimum number of shifts per month, at least six weekend days monthly, and certain holidays. The agreement provided that if the registry employee did "not comply with the policies and procedures associated with the temporary registry position [his or her] employment may be terminated at such time as the [County] sees fit."
¶ 5 The County had an attendance and punctuality policy. The policy originally applied a point system to measure an employee's compliance. An employee would accumulate points for absences, tardiness, or leaving early that could eventually result in disciplinary consequences. That system was discontinued in 2016, and a memo advising employees that the point system was no longer in effect also stated that "[a] ttendance and punctuality will continue to be monitored and addressed on a case-by-case basis." The policy listed the following types of conduct as those that could lead to discipline: consistently calling in absent, consistently calling in absent on days scheduled as overtime days, consistently being late for work or late from breaks, and consistently leaving early. Finally, the policy provided that each occurrence of absenteeism or tardiness was subject to evaluation by the department manager or human resources representative.
¶ 6 Clementine Nelson, the interim director of nursing at the time of Gatson's discharge, testified that the County had no specific procedure in place to monitor whether a registry employee was taking the proper number of shifts and meeting attendance requirements. Nelson testified that she became aware of attendance issues from either nurses, supervisors, or other employees. When she became aware of an issue, she would look through records to determine if the complained-about employee was meeting attendance requirements. Nelson said that there was no specific number of absences or tardiness that would result in automatic termination; decisions to terminate employees for attendance related reasons were made on a case-by-case basis.
¶ 7 Gatson started working as a registry employee in August 2017. In December 2017, she gave notice and stopped working because she was undergoing a high-risk pregnancy. Gatson was rehired as a registry employee and returned to work in May 2018. Annabel Lomadilla, the current director of nursing, testified that, in August 2018, Gatson was called in to speak to Nadja James, the director of nursing at that time. James had planned to terminate Gatson for excessive attendance and punctuality issues. Lomadilla testified that Gatson cried and argued and eventually James decided to give her a warning and another chance.
¶ 8 Gatson testified that, in late January 2019, she called in absent because she and her child were both sick. The next day she received a phone call from Nelson, who asked if she was planning to come in for her shift the next day. Gatson informed Nelson that she would not be in the next day due to her illness. Nelson then informed Gatson that she was being removed from the registry and that her services were no longer needed. Nelson testified that Gatson was discharged because of excessive absences, excessive call-ins on the weekend shifts, and failure to complete the required number of shifts. Attendance reports indicated that, in the three months prior to her termination, Gatson was absent 18 times, was tardy 50 times, and left early twice. Additionally, call-in logs indicated that she did not work all her scheduled weekend shifts between September 2018 and January 2019. Other records demonstrated that, since January 2017, other registry employees were terminated for poor attendance or failing to meet shift requirements and that there were variations in the number of absences, late arrivals, and shift sign-ups that resulted in termination.
¶ 9 After she was discharged, Gatson told Union representative Carla Williams that she had been discharged. On January 31, 2019, Williams sent to David Miller, the County's legal counsel and collective bargaining representative, an e-mail that stated she was making a formal demand to bargain over Gatson's discharge. In his response, Miller stated that the County objected to the Union's demand to bargain over specific discipline. Miller maintained that the County was not obligated to bargain, because it had not unilaterally altered employee working conditions or changed the status quo.
¶ 10 In August 2020, the ALJ issued a recommended decision and order. The ALJ noted that, in arguing that there was a duty to bargain, the Union primarily relied on the decision of the National Labor Relations Board (NLRB) in Total Security Management, Illinois 1, LLC, 364 N.L.R.B. 106 (2016) (Total Security). In that case, which involved the duty to bargain during the time period after union certification but prior to the execution of a first collective bargaining agreement, the NLRB found that an employer must provide the union representative notice and the opportunity to bargain before exercising its discretion to impose certain discipline on individual employees. Id. at *10.
¶ 11 The ALJ found the Union's reliance on Total Security to be unpersuasive. The ALJ noted that the Board had never adopted the rationale of Total Security. Further, Total Security had been overruled by the NLRB in 800 River Road Operating Co., 369 N.L.R.B. 109 (2020). In 800 River Road, the NLRB held that, "upon commencement of a collective-bargaining relationship, employers do not have an obligation *** to bargain prior to disciplining unit employees in accordance with an established disciplinary policy or practice." Id. at *11.
¶ 12 The ALJ found the County's reliance on the Board's decision in Metropolitan Alliance of Police, Grundy County Civilians, Chapter 693, 32 PERI ¶ 26 (ILRB State Panel 2015) (Grundy County), to be more persuasive. In that case, the Board affirmed a refusal to bargain on the basis that the employer's personnel manual established at-will employment as the status quo pending negotiations of a collective bargaining agreement. The ALJ found that, in the present case, the County essentially had an at-will employment policy. The ALJ concluded that Gatson's discharge was consistent with established practices and thus there was no duty to bargain pre-discharge. The ALJ further concluded that there was no duty to bargain the effects of Gatson's termination post-discharge because the effects were the inevitable result of her discharge. The ALJ determined that the County had not committed an unfair labor practice in violation of the Act.
¶ 13 Pursuant to Board rules, the Union filed exceptions to the ALJ's decision. The Union argued that the ALJ erred in relying on Grundy County, because it was poorly reasoned, and the Union asserted that the Board should adopt the Total Security rationale. The Union argued that the purpose of union representation was to obtain protection from unilateral employer action. The Union further argued that to permit employers to exercise unfettered unilateral discretion over discipline and discharge decisions following certification would render the Act ineffectual and undermine the Union's ability to represent employees in a new bargaining unit prior to a first contract.
¶ 14 In its response, the County argued that the ALJ correctly applied appropriate case law and Board precedent and that current law adequately protected employees because employers are shielded from the duty to bargain only as long as discipline is within established practices. The County urged the Board to continue to follow Grundy County rather than Total Security. The County asserted that, if the Board adopted the rationale in Total Security, it should do so prospectively and assess a remedy that did not include reinstatement or back pay for Gatson.
¶ 15 In April 2021, following a hearing, the Board issued its final administrative decision, reversing the ALJ's recommendation. The Board acknowledged that, in Grundy County, it determined that there was no duty to bargain pending negotiations for an initial collective bargaining agreement because the employee discharge in that case conformed with a preexisting at-will personnel policy that represented the status quo. The Board declined to follow the decision in Grundy County, however, because that case did not consider "the exercise of discretion in an employer's decision-making." Further, the Board noted that Grundy County relied on case law that involved parties with an established bargaining history, unlike the present case involving certification and newly gained rights. The Board found that "certification of the exclusive representative triggers a public employer's bargaining obligations and our decision in [Grundy County] fails to adequately preserve and protect the collective bargaining rights of employees and their exclusive representatives during that tenuous period between certification and execution of an initial collective bargaining agreement."
¶ 16 While acknowledging that Total Security had been overruled, the Board found the NLRB's analysis in Total Security to be persuasive and consistent with the purposes of the Act. The Board held that the bright line rule set forth in Total Security-that, during negotiations for a first collective bargaining agreement, an employer is obligated to bargain over the imposition of discipline regardless of preexisting practices if the employer exercises discretion in disciplining employees-provided protection of employees' rights during negotiations for a first contract. The Board found that the County exercised considerable discretion in its discipline and discharge of registry employees and that, under Total Security, the County's exercise of discretion in discharging Gatson altered the status quo and required the County to provide notice and an opportunity to bargain in good faith to impasse prior to discharging Gatson. In support of finding that the County exercised considerable discretion, the Board noted that the County's attendance policy relied on subjective factors and the County applied disciplinary action on a case-by-case basis.
¶ 17 The Board also found that the County unlawfully refused to bargain upon the Union's request post-discharge. The Board explained that "discipline and discharge are mandatory subjects of bargaining" and that the Union's "certification established a bargaining relationship," thus "trigger[ing] the County's duty to bargain over mandatory subjects."
¶ 18 As to an appropriate remedy, the Board noted that its policy was to restore the status quo and order a make-whole remedy such that the parties were in the same position as prior to the commission of the unfair labor practice. The Board noted that the County first engaged in an unfair labor practice by failing to bargain with the Union prior to discharging Gatson. The Board concluded that Gatson's reinstatement, and the appropriate amount of back pay, would place the parties in the same position had the County not failed to provide notice and an opportunity to bargain. Thereafter, the County filed a timely notice of appeal for administrative review of the Board's decision in this court.
¶ 19 II. ANALYSIS
¶ 20 On appeal, the County argues that the Board erred in determining that the County had a duty to provide notice and an opportunity to bargain prior to discharging Gatson and had an obligation to bargain upon the Union's request post-discharge. The County also argues that the Board erred in applying its determination retroactively and finding the appropriate remedy to include reinstatement and back pay.
¶ 21 A. Duty to Bargain Prior to Discharge
¶ 22 Sections 10(a) (1) and 10(a) (4) of the Act make it an unfair labor practice for an employer to "refuse to bargain collectively and in good faith" with a union (5 ILCS 315/10(a) (4) (West 2018)) or to interfere with or restrain public employees in the exercise of rights guaranteed by the Act (id. § 10(a)(1)). When a public employer breaches its obligation to bargain pursuant to section 10(a) (4), it also violates section 10(a) (1). County of Cook v. Illinois Labor Relations Board, Local Panel, 2017 IL App (1st) 153015, ¶ 42. Judicial review of a decision of the Board is governed by the Administrative Review Law (Review Law) (735 ILCS 5/3-101 et seq. (West 2018)). AMF Messenger Service, Inc. v. Department of Employment Security, 198 Ill.2d 380, 395 (2001). Under the Review Law, the scope of judicial review extends to all questions of law and fact presented by the record before the court. Id.
¶ 23 The applicable standard of review, which determines the degree of deference afforded to an agency's decision, depends upon whether the question presented is one of fact, one of law, or a mixed question of law and fact. Id.; see also City of Belvidere v. Illinois State Labor Relations Board, 181 Ill.2d 191, 204 (1998) ("[t]he standard of review applicable to the agency's decision depends upon whether the question presented is one of fact or law"). An administrative agency's findings on questions of fact are deemed to be prima facie true (735 ILCS 5/3-110 (West 2018)), and a reviewing court will reverse the Board's factual determinations only if they were contrary to the manifest weight of the evidence. Sudzus v. Department of Employment Security, 393 Ill.App.3d 814, 819 (2009).
¶ 24 Questions of law presented by an administrative appeal are reviewed de novo. Village Discount Outlet v. Department of Employment Security, 384 Ill.App.3d 522, 525 (2008). However, we accord deference to the agency's experience and expertise in interpreting the law or rule at issue. See Department of Central Management Services/Department of Public Health v. Illinois Labor Relations Board, State Panel, 2012 IL App (4th) 110209, ¶ 16.
¶ 25 If the question presented for review is a mixed question of law and fact, then we review the Board's decision to determine if it was clearly erroneous. AMF Messenger Service, Inc., 198 Ill.2d at 395. Mixed questions of law and fact 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.'" American Federation of State, County & Municipal Employees, Council 31 v. Illinois State Labor Relations Board, 216 Ill.2d 569, 577 (2005) (quoting Pullman-Standard v. Swint, 456 U.S. 273, 289 n.19 (1982)). An agency's decision is clearly erroneous when the entire record leaves the reviewing court with the definite and firm conviction that a mistake has been made. Id.; see also Department of Central Management Services v. Illinois Labor Relations Board, State Panel, 2011 IL App (4th) 090966, ¶ 129 (under the clearly erroneous standard, if there are two reasonable but opposing views of whether the facts satisfy the statutory standard, "the Board cannot have committed clear error by choosing between those views").
¶ 26 The County's first contention on appeal is that the Board erred in finding that the County had a duty to provide notice and an opportunity to bargain prior to taking disciplinary action against Gatson. The County argues that Board precedent established that it did not have a duty to bargain unless there was a change in the status quo. The County argues that this is a question of law, reviewed de novo. We disagree. Whether the County had a duty to bargain required the Board to apply the Act to the circumstances at issue in this case, thus requiring a clearly erroneous standard of review. City of Belvidere, 181 Ill.2d at 205 (whether an employer had committed an unfair labor practice is generally a mixed question of law and fact, reviewed for clear error). However, even if the issue presented was a pure question of law, this court still accords deference to the Board's interpretation of the Act. Department of Central Management Services v. Illinois Labor Relations Board, State Panel, 2018 IL App (4th) 160827, ¶ 23 (despite de novo review, deference is accorded to the Board's interpretation of the Act). Indeed, there is authority for applying the "arbitrary and capricious" standard (the least demanding standard of review) to an agency's departure from its prior decisions. See American Federation of State, County & Municipal Employees, Council 31 v. Illinois Labor Relations Board, State Panel, 2018 IL App (1st) 172476, ¶ 25. Under any of these standards, we would uphold the decision of the Board.
¶ 27 In the present case, we cannot say that the Board's determination was clearly erroneous, error as a matter of law, or arbitrary and capricious. Public employers and employee representatives share a statutory duty "to negotiate in good faith with respect to wages, hours, and other conditions of employment, not excluded by section 4 of this Act." 5 ILCS 315/7 (West 2018). Employers are not required to bargain over matters of inherent managerial policy, but they must bargain over "policy matters directly affecting wages, hours[,] and terms and conditions of employment as well as the impact thereon." Id. § 4. It is undisputed that the issue of discipline, generally, is a mandatory subject of bargaining. City of Decatur v. American Federation of State, County & Municipal Employees, Local 268, 122 Ill.2d 353, 359 (1988); American Federation of State, County & Municipal Employees, AFL-CIO v. Illinois State Labor Relations Board, 190 Ill.App.3d 259, 268 (1989).
¶ 28 In determining that the County had a duty to provide notice and an opportunity to bargain prior to Gatson's discharge, the Board relied on Total Security In Total Security, 364 N.L.R.B 106, at *1, the issue was whether an employer committed an unfair labor practice when it discharged three employees without first giving the union notice and an opportunity to bargain about the discharges. The employees were discharged after they voted to be represented by a union but before the employer and the union had entered into a collective bargaining agreement or other agreement governing discipline. Id. The NLRB concluded that
"where an employer's disciplinary system is fixed as to the broad standards for determining whether a violation has occurred, but discretionary as to whether or what type of discipline
will be imposed in particular circumstances, we hold that an employer must maintain the fixed aspects of the discipline system and bargain with the union over the discretionary aspects (if any), e.g., whether to impose discipline in individual cases and, if so, the nature of the discipline to be imposed." Id. at *6.
The NLRB reasoned that requiring a pre-discipline obligation to bargain was "likely to lead to a more accurate understanding of the facts, a more even-handed and uniform application of rules of conduct, often a better and fairer result, and a result the employee is more able to accept." Id. at *10. It further reasoned:
"To hold otherwise, as the dissent would, and permit employers to exercise unilateral discretion over discipline after employees select a representative-i.e., to proceed as before despite the fact that the employees have chosen to be represented- would demonstrate to employees that the [National Labor Relations Act (NLRA) (29 U.S.C. § 151 et seq. (2014))] and the [NLRB's] processes implementing it are ineffectual, and would render the union (typically, newly certified or recognized) that represents the employees impotent." Id. at *12.
¶ 29 The Board's reliance on Total Security was not improper. See American Federation of State, County & Municipal Employees, 216 Ill.2d at 579 (NLRB decisions constitute persuasive authority). The Board specifically stated that the rationale in Total Security was persuasive and consistent with the purposes of the Act. The Act states that its purpose is to "regulate labor relations between public employers and employees" and "to provide peaceful and orderly procedures for protection of the rights of all." 5 ILCS 315/2 (West 2018). The Board noted that imposing a pre-discipline obligation to bargain under the circumstances in this case provides protection to "employee's rights during negotiations for a first contract when employees and unions can be particularly vulnerable to retaliatory action or retribution by an employer for their organizing efforts." The Board explained that allowing an employer to make unilateral discretionary decisions was incompatible with the bargaining rights conferred by union certification. We agree that, during the period between certification and a first collective bargaining agreement, imposing a duty to bargain prior to implementing a discretionary disciplinary decision supports the Act's purpose of regulating labor relations and protecting employee rights. Accordingly, we decline to disturb the Board's determination.
¶ 30 The County argues that the Board's decision was improper because Board precedent establishes that an employer has no duty to bargain over discipline where issuing the discipline does not change the status quo. In support, the County cites Illinois Fraternal Order of Police Labor Council, 28 PERI ¶ 154 (ILRB State Panel 2012) (Village of Summit). In Village of Summit, the union had been certified for a significant number of years and the parties had an active collective bargaining agreement. The Board held that the use of video footage from surveillance cameras as a basis for discipline of certain employees did not constitute a material change in the employees' terms and conditions of employment that would trigger a duty to bargain. The Board noted that the presence of the surveillance cameras was well known to both parties and that the union never raised an issue regarding the presence of the cameras. Further, the employees were disciplined based on rules and procedures already in place.
¶ 31 The County argues that, as in Village of Summit, it subjected Gatson to the same attendance standards and penalties that were already in place prior to Union certification. The County's reliance on Village of Summit is unpersuasive, as that case did not involve disciplinary action taken after union certification but prior to a first contract. Rather, that case involved action taken after a history of collective bargaining and past practice between the parties. Accordingly, disciplinary rules, procedures, and sanctions were already bargained-for and in place. The County's reliance on other cases suffers from the same flaw. See Peoria Firefighters Ass 'n, Local 544, 3 PERI ¶ 2025 (already had bargaining history and executed agreement); American Federation of State, County, & Municipal Employees, Council 31 v. Illinois Labor Relations Board, State Panel, 2017 IL App (5th) 160229, ¶ 38 (same).
¶ 32 The only Board precedent on point was Grundy County, 32 PERI ¶ 26. In Grundy County, the union alleged that the county made an improper unilateral change when, without bargaining, it discharged an employee during the time period after union certification but while the parties were negotiating a first contract. The Board, in affirming its executive director's decision denying the union's request to issue a complaint, agreed that the discharge conformed to the county's preexisting at-will personnel policy and that this constituted the status quo pending negotiations. The Board thus concluded that the employer did not have a duty to bargain prior to discharging the employee.
¶ 33 In the present case, the Board acknowledged its decision in Grundy County but concluded that its decision in that case was wrongly decided. The Board noted that, in Grundy County, it failed to address a critical issue-namely, the employer's exercise of discretion in its decisionmaking during the time period between certification and a first contract. It also noted that the precedent relied on in Grundy County was misplaced because it involved parties with an established bargaining history and an executed collective bargaining agreement. The Board concluded that Grundy County failed to further the purposes of the Act by protecting "the collective bargaining rights of employees and their exclusive representatives during that tenuous period between certification and execution of an initial collective bargaining agreement."
¶ 34 There was nothing preventing the Board from departing from its decision in Grundy County. The Board's repudiation of Grundy County parallels somewhat the NLRB's own rocky history with the issue. In Warehouse Union Local 6, International Longshore & Warehouse Union, AFL-CIO, 359 N.L.R.B. 396 (2012) (Alan Ritchey), the NLRB overruled McClatchy Newspapers, Inc. d/b/a The Fresno Bee, 337 N.L.R.B. 1161 (2002) (Fresno Bee), and held that an employer must provide notice and an opportunity to bargain before imposing certain discipline on employees following union certification but prior to a first contract. Alan Ritchey was subsequently invalidated by the United States Supreme Court (National Labor Relations Board v. Noel Canning, 573 U.S. 513 (2014)) because of the improper composition of the NLRB at the time. Thereafter, Total Security, 364 N.L.R.B. 106, at * 8, adopted the reasoning of Alan Ritchey and again overruled Fresno Bee, on the basis of "well-established Board precedent." However, just four years later, the majority in 800 River Road, 369 N.L.R.B. 109, at *1, saw that "well-established Board precedent" quite differently and accused the majority in Total Security of "[d]ismissively overruling *** controlling precedent," i.e., Fresno Bee. The unsettled nature of the issue before us, both on a federal and a state level, makes it a particularly appropriate area for judicial deference to agency experience and expertise.
¶ 35 The County argues that the Board erred in failing to follow its decision in Grundy County, because it failed to set forth a reasoned explanation for its departure. We agree that the Board was required to provide a reasoned analysis for its determination. Board of Education of the City of Chicago v. Moore, 2021 IL 125785, ¶ 50; Department of Central Management Services, 2018 IL App (4th) 160827, ¶ 28. We note that the Board explained why it was departing from Grundy County and why it believed that the Total Security rationale was more aligned with the requirements and purposes of the Act. The Board explained that in the precontract setting, where there is not an established history of collective bargaining, the better course is to impose a duty to bargain before an employer can take discretionary disciplinary measures. As such, the Board complied with the requirement that it provide a reasoned analysis for its decision to depart from prior precedent.
¶ 36 Finally, the County argues that, while the Board relied on Total Security, it failed to follow that decision. Specifically, the County notes that, in Total Security, the NLRB found that there was no need to reach an impasse in bargaining before implementing the discipline. The County argues that the Board's failure to define the scope of bargaining will lead to "endless litigation." We acknowledge that the Board did not provide explicit direction on the pre-discipline duty to bargain at issue in this case. However, the County fails to cite any case law that would require us to reverse the Board's decision on this basis, and we decline to do so. Given the unsettled nature of the issue before us, it is appropriate to give the Board the opportunity to define the scope of bargaining in future proceedings in this or other cases.
¶ 37 B. Duty to Bargain Post-Discharge
¶ 38 The County's next contention on appeal is that the Board erred in concluding that it had a duty to bargain upon the Union's request after Gatson's discharge. Once again, determining whether the County had a duty to bargain required the Board to apply the Act to the circumstances at issue in this case, thus requiring a clearly erroneous standard of review. City of Belvidere, 181 Ill.2d at 205. The County argues that this is a pure question of law, which should be reviewed de novo. Under either standard, however, we affirm the Board's decision.
¶ 39 The Board explained that certification of the Union triggered the County's bargaining obligations and that matters of discipline and discharge are mandatory subjects of bargaining. The Board thus concluded that the County had a duty to bargain upon the Union's request post-discharge. This conclusion is supported by the Act. See 5 ILCS 315/4, 7 (West 2018) (employer is required to bargain over policy matters affecting conditions of employment upon request by a union representative).
¶ 40 The Board's determination is also supported by NLRB authority. In Fresno Bee, 337 N.L.R.B. 180, at *44, the NLRB held that, although an employer "has no obligation to notify and bargain to impasse with the [u]nion before imposing discipline," it does have "an obligation to bargain with the [u]nion, upon request, concerning the discharges, discipline, or reinstatement of its employees." While Total Security did not adopt, and in fact overruled, the Fresno Bee approach regarding a duty to bargain prior to imposing discipline (Total Security, 364 N.L.R.B, 106, at *8), it did not address or disrupt Fresno Bee's finding of a post-discipline duty to bargain upon request. Thus, there is authority establishing that it is unlawful for an employer to refuse to bargain upon request post-discharge. Fresno Bee, 337 N.L.R.B. 180, at * 44; see also Oberthur Technologies of America Corp., 368 N.L.R.B. 5, at *5 (2019) (recognizing that "an employer has a duty to bargain about specific discharges after the fact, upon request").
¶ 41 In arguing that the Board erred, the County asserts that any post-discharge duty to bargain depended on whether the Union's motivation was to attack the inevitable consequence of the discharge. The County argues that, by seeking reinstatement and lost wages, the Union was improperly trying to overturn Gatson's discharge. This argument confuses various bargaining obligations. Generally, there is no duty to bargain over the effects of a decision where the effects are the inevitable consequence of the decision itself. See American Federation of State, County & Municipal Employees, Council 31, 31 PERI ¶ 114 (ILRB State Panel 2014) (implementation of reorganization plan was not a mandatory subject of bargaining and the union was not entitled to bargain over the effects of the plan, because the issues it identified were not severable from the underlying implementation). In the present case, the Union was not requesting to bargain over the effects of Gatson's discharge. In its brief written in support of its position prior to the ALJ hearing, the Union argued that the County should be ordered to bargain in good faith "over its decision to terminate Gatson." Accordingly, the Union was seeking to bargain over the discharge decision itself. As such, effects bargaining was not at issue in this case and the County's argument is therefore misplaced.
¶ 42 C. Retroactivity
¶ 43 The County's third contention on appeal is that the Board should have applied its decision prospectively. The County argues that the Board's retroactive application of its decision presents a mixed question of law and fact, reviewed under the clearly erroneous standard. The Board argues that the question of retroactivity is part of the assessment of an appropriate remedy and, therefore, is reviewed for an abuse of discretion. While the exact standard of review is not well settled, it is clear that a reviewing court should afford deference to the Board's decision on the issue of retroactivity. See Lake City Foundry Co. v. National Labor Relations Board, 432 F.2d 1162, 1167 (7th Cir. 1970) (noting that the Board's decision to give its new rule retroactive application was a gross abuse of discretion); see also Construction Industry Welfare Fund v. Jones, 672 F.Supp. 291, 293 (N.D. Ill. 1987) (a reviewing court must give due deference to the intent of the Board on the issue of retroactivity).
¶ 44 The Board's customary practice is to apply all of its decisions retroactively. Service Employees International Union, Local 11, 4 PERI ¶ 2030 (ISLRB 1988) (Crest Hill). An exception to this practice exists, however, if a retroactive remedy would be unfair. Id. In Crest Hill, the Board noted that, in Chevron Oil Co. v. Huson, 404 U.S. 97 (1971), the Supreme Court listed three factors for determining whether a decision should be applied retroactively and further noted that, in Board of Commissioners of Wood Dale Public Library District v. County of Du Page, 103 Ill.2d 422 (1984), our supreme court adopted those factors. Crest Hill, 4 PERI ¶ 2030. Accordingly, in Crest Hill, the Board similarly adopted those factors for determining whether a decision should be applied retroactively. The factors to be considered are:
"(1) whether the decision to be applied nonretroactively established a new principle of law, either by overruling clear past precedent on which litigants may have relied or by deciding an issue of first impression whose resolution was not clearly foreshadowed; (2) whether, given the purpose and history of the new rule, its operation will be retarded or promoted by prospective application; and (3) whether substantial inequitable results would be produced if the former decision is applied retroactively." Tosado v. Miller, 188 Ill.2d 186, 197 (1999).
In the present case, retroactive application of the Board's decision would be unfair. At the time the County failed to provide pre-discipline notice and an opportunity to bargain, Grundy County was the only Board case on point and, as explained, the Board in that case affirmed the executive director's determination that there was no duty to bargain post-certification but prior to a first contract. Further, while Total Security had not yet been overruled, federal labor law had already exhibited a rocky history with this issue. Accordingly, the Chevron factors favor prospective application. The Board's ruling established a new requirement to provide notice and an opportunity to bargain before taking discretionary disciplinary action after union certification but prior to a first contract. Further, prospective application promotes the operation of the new ruling and it balances the equities, as retroactive application would be unfair because the County reasonably relied on the Board's ruling in Grundy County. For these reasons, the Board erred in applying its decision retroactively.
¶ 45 D. Remedy
¶ 46 Finally, the County argues that reinstatement and back pay are not an appropriate remedy. As explained in its ruling, the Board's decision to impose reinstatement and back pay was based on its policy to place the parties in the same position they would have been in had the unfair labor practice not been committed. Since it had determined that the County engaged in an unfair labor practice by failing to bargain before discharging Gatson, it concluded that Gatson's reinstatement and back pay would place the parties in the same position had the County not failed to bargain. Since we hold that the Board's decision to impose a pre-discharge duty to provide notice and an opportunity to bargain should be applied only prospectively, we vacate the portion of the remedy that included Gatson's reinstatement and back pay, as those remedies are no longer appropriate.
¶ 47 III. CONCLUSION
¶ 48 For the reasons stated, we affirm the Board's decision finding that the County engaged in an unfair labor practice by failing to provide notice and an opportunity to bargain pre-discharge and by failing to bargain upon request post-discharge. We reverse the Board's retroactive application of its decision to impose a pre-discharge duty to bargain and we vacate the portion of the remedy that required reinstatement and back pay.
¶ 49 Affirmed in part, reversed in part, and vacated in part.
¶ 50 JUSTICE McLAREN, dissenting:
¶ 51 I respectfully dissent. While reciting the legal axiom of "deference," the majority adopts both the unlawful alteration of contract law and a redefinition of the concept of status quo. It also allows the Board to evade the statutory demands of administrative rulemaking while it imposes new requirements on employers during the post-certification, precontract period of negotiation.
¶ 52 After union certification, an employer must maintain the status quo regarding wages, hours, and other mandatory terms of employment until the parties bargain and execute a contract. NLRB v. Katz, 369 U.S. 736, 743 (1962). "Status quo" is defined as "[t]he existing or current state of affairs." Black's Law Dictionary, https://thelawdictionary.org/status-quo/ (last visited Sept. 21, 2022) [https://perma.cc/NN86-JESX]. The status quo covers the time prior to certification; the touchstone is whether there was a change between what was done before certification and what was done after certification. Prior to certification in this case, the County employed Gatson pursuant to a registry agreement that included specific attendance requirements for continued employment. In its decision to remove Gatson from the registry shortly after union certification, the County did not impose any new changes involving disciplinary rules, policies, or procedures. Yet the Board ruled that the current state of affairs regarding discipline that actually existed pre-certification now required the County to bargain over an employee's dismissal, a requirement that clearly did not exist prior to certification.
¶ 53 This is a change in the law; instead of preserving the status quo during negotiations for a contract, the Board's decision imposes a change in the status quo during that period, granting to the employees rights that do not exist and can exist only in the future, after a contract is executed. I find it interesting that nowhere does the majority attempt to explain its conception of "status quo" and how the Board's imposition of new requirements fits within that conception. The majority has apparently created the concept of "anticipatory status quo," "the [potentially] existing or [future] current state of affairs."
¶ 54 I am bemused by the majority's casual acceptance of the Board's reliance on Total Security. See supra ¶ 29 ("NLRB decisions constitute persuasive authority"). While this is a legal truism, we usually find more persuasive the decisions that are not explicitly rejected and overturned by the original issuing body. In 800 River Road Operating Co., the NLRB clearly stated:
"For all of the reasons stated above, we overrule the new bargaining requirements imposed by the Total Security majority and return to long-standing law establishing that, upon commencement of a collective-bargaining relationship, employers do not have an obligation under Section 8(d) and 8(a)(5) of the Act to bargain prior to disciplining unit employees in accordance with an established disciplinary policy or practice." 800 River Road Operating Co., 369 N.L.R.B. 109, at *11.
The majority notes that courts generally grant deference to an administrative agency's experience and expertise. See supra ¶¶ 25, 35. However, a reviewing court is not bound by an agency's interpretation of the law. Vienna School District No. 55 v. Illinois Education Labor Relations Board, 162 Ill.App.3d 503, 506 (1987). What expertise does the Board demonstrate in adopting overruled federal law? What deference should be granted to the Board's adoption of reasoning that was explicitly rejected by its original author? Is overturned law merely waiting in a time-out for someone to resuscitate it? Granting deference is something more thoughtful and sophisticated than merely rubber-stamping a 180-degree turn in established law. The majority's analysis here does not merely grant deference; it abandons this court's authority and duty to preserve the law, and instead embraces the nonsensical holding of the Board that the status quo is to be determined by the execution of a future contract and its attendant reality.
¶ 55 The majority's unthinking deference to the Board's "expertise" in applying the law also extends to the Board's decision to disregard its own precedent. As the majority described in its analysis of retroactivity:
"At the time the County failed to provide pre-disciplinary notice and an opportunity to bargain, Grundy County was the only Board case on point and, as explained, the Board in that case affirmed the executive director's determination that there was no duty to bargain post-certification but prior to a first contract." (Emphasis added.) Supra ¶ 45.
At the same time, the majority found adequate the Board's "reasoned analysis for its decision to depart from prior precedent," noting its explanation that "where there is not an established history of collective bargaining, the better course is to impose a duty to bargain before an employer can take discretionary disciplinary measures." Supra ¶ 35. I am bemused that the majority passes so lightly on the Board's decision to decline to follow its own precedent and adopt the reasoning of an overturned nonprecedential case.
¶ 56 Further, in finding that the Board's reliance on Total Security "was not improper," the majority describes the Board's explanation that "the rationale in Total Security was persuasive and consistent with the purposes of the Act. The Act states that its purpose is to" 'regulate labor relations between public employers and employees' and 'to provide peaceful and orderly procedures for protection of the rights of all.' 5 ILCS 315/2 (West 2018)." Supra ¶ 29. However, the Board's imposition of a new requirement during negotiations thwarts the Act's plan for peaceful and orderly procedures. Under the Act, public employers and the unions representing their employees are required to bargain collectively over the terms and conditions of employment. 5 ILCS 315/7 (West 2018). The refusal of either party to bargain in good faith is an unfair labor practice. 5 ILCS 315/10(a) (4), (b)(4) (West 2018). "Courts have held that an employer violates the requirement of bargaining in good faith if it unilaterally alters any of the 'prevailing terms and condition [sic] of employment' while the parties are negotiating the terms of a CBA." American Federation of State, County, & Municipal Employees, Council 31 v. Illinois Labor Relations Board, State Panel, 2017 IL App (5th) 160229, ¶ 38 (AFSCME). These changes are prohibited because they frustrate the objective of establishing working conditions through collective bargaining. Id. "The goal is to maintain the status quo until the parties agree to new terms and conditions of employment through the collective bargaining process." Id.
¶ 57 Thus, the legislature has determined that altering the prevailing terms and conditions of employment during negotiations violates the requirement of good-faith bargaining; such changes "frustrate the objective of establishing working conditions through collective bargaining." (Internal quotation marks omitted.) Id. Yet the majority finds that the Board's unilateral alteration of the status quo "supports the Act's purpose of regulating labor relations and protecting employee rights" (supra ¶ 29) instead of "frustrating] the objective of establishing working conditions through collective bargaining." (Internal quotation marks omitted.) AFSCME, 2017 IL App (5th) 160229, ¶ 38. Again, such deference to the Board's "expertise" is illogical, and the illogic of the analysis is manifest.
¶ 58 The Board's identification of an employer's exercise of discretion in its decision-making process during the period between certification and a first contract as a "critical issue" is nothing more than the creation of a straw man. See supra ¶ 34. First, since when has the concept of discretion become a four-letter word in employment law? Mere discretion is not an inherent evil. Second, what makes it a "critical issue?" The Board's attempt to distinguish Grundy County was feeble and pointless. See supra ¶ 33 ("the precedent relied on in Grundy County was misplaced because it involved parties with an established bargaining history and an executed collective bargaining agreement"). This is a distinction without a difference. Established law requires the preservation of the status quo during contract negotiations; it makes no qualification for" 'that tenuous period between certification and execution of an initial collective bargaining agreement.' Supra ¶ 33. The County's discretion in disciplinary actions is an integral part of the status quo that is to be preserved during negotiations. It is an issue that may be the subject of those negotiations, and it may not survive the execution of a contract. However, that is for the future. Prohibiting its exercise now and requiring bargaining on individual acts of discipline both takes away from the County's rights and adds to the employees' rights. Employees never had a right to immunity from the proper exercise of discretion, and creating this new duty to protect nonexistent rights is inconsistent with both the policy of the Act and extant and precedential case law. If discretion is not to be utilized by the employer after certification, does this prohibition also apply to the union? If discretion is a "critical issue," then how are the parties supposed to bargain in good faith- especially when discretion is the stated cause of the bad faith that the Board has demonized and sanctioned. When and if this new mandate is imposed during the period between certification and the execution of the contract, I would reference a quote by Sir Winston Churchill: "It is a riddle, wrapped in a mystery, inside an enigma ***." Winston Churchill, BBC Home Service Radio Broadcast (Oct. 1, 1939), https://www.bbc.com/historyofthebbc/anniversaries/october/winston-churchills-first-wartime-broadcast [https://perma.cc/CNW6-2BV3 ].
¶ 59 I must also question what precontract bargaining regarding discipline would entail. Individual instances of employee discipline are sui generis and separate if terms are not contained in an executed contract. The remedy of an unfair labor practice claim already existed for Gatson without the creation of this new requirement. All the Union had to do was show that the County violated its protocols for terminating an at-will employee or claim that the termination was retaliatory. When there is no contract executed that covers protocols for discipline/termination, how can you measure what constitutes bad faith other than failure to follow the status quo of the established and existing protocols? The majority fails to actually explain what the County would be required to bargain about or why following past practices would not be presumed to be bad faith "discretion." If the parameters are to be measured by the executed contract, then the employer would have to be prescient in order to be in compliance.
¶ 60 The Board's action here goes beyond disregarding precedent and adopting the overruled reasoning of a nonprecedential federal case; it was, in reality, the implementation of a new rule. In the Administrative Procedure Act, a rule is defined as an
"agency statement of general applicability that implements, applies, interprets, or prescribes law or policy but does not include (i) statements concerning only the internal management of an agency and not affecting private rights or procedures available to persons or entities outside the agency, (ii) informal advisory rulings issued under Section 5-150, (iii) intra-agency memoranda, (iv) the prescription of standardized forms, (v) documents prepared or filed or actions taken by the Legislative Reference Bureau under Section 5.04 of the Legislative Reference Bureau Act [(25 ILCS 135/5.04 (West 2020))], or (vi) guidance documents prepared by the Illinois Environmental Protection Agency under Section 39.5 or subsection (s) of Section 39 of the Environmental Protection Act [(415 ILCS 5/39(s), 39.5 (West 2020))]." 5 ILCS 100/1-70 (West 2020).
See also Northwestern Illinois Area Agency on Aging v. Basta, 2022 IL App (2d) 210234, ¶ 56. The majority here describes the Board's decision as having" established a new requirement to provide notice and an opportunity to bargain before taking discretionary disciplinary action after union certification but prior to a first contract." (Emphasis added.) Supra ¶ 45. Clearly, a decision that establishes a new requirement that an employer bargain over employee discipline during the period between the certification and the execution of a contract, instead of applying established employer disciplinary policy or practice, is prescribing law and policy. It either changes the well- established policy requiring an employer to maintain the status quo during that period or changes the definition of the classical term of art of "status quo." This is a decision that will apply to all employers in the period between the certification of a bargaining unit and the execution of a contract. Yet the Board established this new requirement without the benefit of public notice, publication in the Illinois Register, invited comment, review by the Joint Committee on Administrative Rules, hearings, and filing with the Secretary of State. See Basta, 2022 IL App (2d) 210234, ¶¶ 9-12 (complete recitation of the rulemaking process). Instead, the Board merely issued an ersatz rule as a decision in a contested case, changing well-established law and imposing new requirements without compliance with the proper statutory steps to create a new rule.
¶ 61 The majority accepts the Board's explanation that "the rationale in Total Security was persuasive and consistent with the purposes of the Act." Supra ¶ 29. I submit that the recent United States Supreme Court decision in West Virginia v. Environmental Protection Agency, ___U.S. ___, 142 S.Ct. 2587 (2022), is much more persuasive. There, in analyzing the Environmental Protection Agency's attempt to expand its regulatory authority and adopt a regulatory program that Congress had declined to enact itself, the Court stated:
"Nonetheless, our precedent teaches that there are 'extraordinary cases' that call for a different approach-cases in which the 'history and the breadth of the authority that [the agency] has asserted,' and the 'economic and political significance' of that assertion, provide a 'reason to hesitate before concluding that Congress' meant to confer such authority." Id. at ___, 142 S.Ct. at 2608 (quoting Food & Drug Administration v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159-60 (2000)).
The Court ultimately concluded that it was "not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in Section 111(d). A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body." Id. at ___, 142 S.Ct. at 2616.
¶ 62 Similarly, the history and breadth of the Board's action here exceeds any grant of authority given to the Board. By imposing new requirements during post-certification negotiations that counter the stated policy of the Act and redefining the established concept of "status quo," the Board usurps both the legislative power establishing the policy of the Act and the authority of the judiciary to determine traditional legal principles of equity and contract law such as the status quo. The Board is an authority, not The Authority.
¶ 63 The majority here employs paradoxical Orwellian logic to conclude that the policy of the Act is best honored by its reconstitution, that the status quo is best preserved by its alteration, and that overruled, nonprecedential case law is preferable to extant, precedential case law. That might be acceptable if this were Oceania. But it isn't.