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this document
Appellate Court Date: 2022.08.30
10:19:09 -05'00'
City of Springfield v. Policemen’s Benevolent & Protective Ass’n, Unit #5,
2021 IL App (4th) 200164
Appellate Court THE CITY OF SPRINGFIELD, Petitioner, v. THE POLICEMEN’S
Caption BENEVOLENT AND PROTECTIVE ASSOCIATION, UNIT #5;
THE SPRINGFIELD FIREFIGHTERS, INTERNATIONAL
ASSOCIATION OF FIREFIGHTERS, LOCAL 37; and THE
ILLINOIS LABOR RELATIONS BOARD, STATE PANEL,
Respondents.
District & No. Fourth District
No. 4-20-0164
Filed July 27, 2021
Decision Under Petition for review of order of Illinois Labor Relations Board, State
Review Panel, Nos. S-CA-19-046, S-CA-19-066.
Judgment Affirmed.
Counsel on James K. Zerkle, Steven C. Rahn, and John M. Zimmerman, of
Appeal Springfield, for petitioner.
Ronald J. Stone, of Stone Law Office, of Springfield, for respondent
Policemen’s Benevolent and Protective Association, Unit No. 5.
Matt Pierce and Margaret Angelucci, of Asher, Gittler & D’Alba, Ltd.,
of Chicago, for respondent Springfield Firefighters, International
Association of Firefighters, Local 37.
Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz,
Solicitor General, and Carson R. Griffis and Valerie Quinn, Assistant
Attorneys General, of counsel), for other respondent.
Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.
Presiding Justice Knecht and Justice Turner concurred in the judgment
and opinion.
OPINION
¶1 Petitioner, the City of Springfield (City), seeks administrative review of a decision of the
Illinois Labor Relations Board, State Panel (Board). The Board found the City committed
unfair labor practices and violated sections 10(a)(1) and 10(a)(4) of the Illinois Public Labor
Relations Act (Act) (5 ILCS 315/10(a)(1), (4) (West 2016)) by (1) unilaterally adopting a rule
amendment affecting City employees without giving respondents—the Policemen’s
Benevolent and Protective Association, Unit #5 (Policemen’s Union) and the Springfield
Firefighters, International Association of Firefighters, Local 37 (Firefighter’s Union)—notice
and an opportunity to bargain over the change and (2) altering the status quo during interest
arbitration with the unions. Policemen’s Benevolent & Protective Ass’n, Unit #5, 36 PERI
¶ 113 (ILRB State Panel 2020) (hereinafter Policemen’s Benevolent & Protective Ass’n, 36
PERI ¶ 113). On review, the City argues the Board erred in finding it violated the Act because
it neither (1) refused to bargain the application or impact of the amendment nor (2) altered the
status quo. We affirm.
¶2 I. BACKGROUND
¶3 The City is a public employer under the Act. It has 1400 employees, 237 of which are
members of the Policemen’s Union and 205 of which are members of the Firefighter’s Union.
The City also has a civil service commission, established by city ordinance, which sets forth
“standards” for City employees. Commissioners of the City’s Civil Service Commission are
appointed by the City’s mayor with the advice and consent of its city council.
¶4 On September 5, 2018, the Civil Service Commission adopted an amendment to one of its
rules, Civil Service Commission Rule 4.3 (Rule 4.3), that allowed for an award of residency
“preference points” to City employees on examinations for promotion. In November 2018, the
Firefighter’s Union filed an unfair labor practice charge against the City (case No. S-CA-19-
046) based on that amendment. It alleged the City violated sections 10(a)(1), 10(a)(4), and
14(l) (5 ILCS 315/10(a)(1), (4); 14(l) (West 2016)) of the Act because it unilaterally changed
the status quo during the parties’ contract negotiations “by amending the rules for promotions”
without notice or an opportunity for bargaining with the union. In December 2018, the
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Policemen’s Union also filed an unfair labor practice charge against the City (case No. S-CA-
19-066), raising similar claims. Following investigations, the Board’s executive director issued
complaints for hearing in each case. The matters were consolidated for a hearing, which
occurred in June 2019 before an administrative law judge (ALJ).
¶5 At the hearing, the parties presented a combined stipulation of facts for the ALJ’s
consideration that showed the following. The City and the Policemen’s Union were parties to
a collective bargaining agreement (CBA) that expired on February 28, 2018. In December
2017, shortly prior to the expiration of that CBA, the parties began negotiations for a successor
CBA. In January 2018, the Policemen’s Union invoked the “interest arbitration process” under
section 14 of the Act (id. § 14). During the bargaining process, the City proposed a change to
residency requirements for union members, in that newly hired members would be required to
live within the City while current members “would be subject to a grandfather clause.” The
City “did not make any proposals relating to residency preference points for promotions.”
Conversely, the Policemen’s Union “proposed that the status quo on residency requirements
be maintained.”
¶6 The parties’ stipulated facts also showed the City and the Firefighter’s Union were parties
to a CBA that expired on February 29, 2016. On January 27, 2016, the Firefighter’s Union also
invoked “the interest arbitration process” under section 14 of the Act. Id. On February 28,
2019, the City and the Firefighter’s Union signed a successor CBA, effective March 1, 2016,
through February 28, 2021.
¶7 The parties agreed that, on September 5, 2018, the City’s Civil Service Commission
approved a change to one of its rules, Rule 4.3, entitled “Veteran’s Preference in Examinations
and Promotions and Residency Preference for Original Appointment/Entry-Level Positions
and Promotions.” The change added a new subsection that provided for an award of residency
“preference points” to City employees on examinations for promotions in the event the
employee had lived within the city for nine consecutive months prior to the examination. The
added subsection stated as follows:
“D. Qualified persons who have passed an examination for promotion shall be
granted residency preference points if the following condition is met:
1. The legal residence of the candidate must be an address that is within the City of
Springfield corporate limits and has been the candidate’s legal residence for at least
nine (9) consecutive months as determined by the chief Examiner in the application
packet. Residency preference points shall be made effective and apply to any promotion
eligibility list that is certified after the date this rule is passed by the Civil Service
Commission. For any written examination taken prior to the certification of an
eligibility list that is certified after the date this rule is passed, proof of residency shall
be provided within the thirty (30) days after the passage of this rule, and proof of
residency shall include but is not limited to a prior utility and/or telephone bill in the
candidate’s name, rental agreement in the candidate’s name or property tax bill in the
candidate’s name. Thereafter, proof of residency must be provided prior to taking the
written examination for promotion, which may include but is not limited to a prior
utility and/or telephone bill in the candidate’s name, rental agreement in the candidate’s
name or property tax bill in the candidate’s name.
2. The Civil Service Commission shall add three points to the final examination
grade of any candidate who has met the criteria outlined above.”
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¶8 The change to Rule 4.3 was adopted while contract negotiations were ongoing between
both unions and the City and after both unions had invoked interest arbitration procedures. In
correspondence between the City and the Policemen’s Union after the rule amendment, the
union asserted the change concerned “a mandatory subject of bargaining” while the City
maintained the change would not apply to existing employees and offered to bargain its
“impact.”
¶9 Also at the hearing, both unions presented testimony from their respective union presidents.
Grant Barksdale testified he was the president of the Policemen’s Union and was involved in
its contract negotiations with the City. He stated that “residency” was “a topic” of current
negotiations but that there were no proposals for “anything that had to do with promotional
exams.”
¶ 10 Barksdale testified he was aware that the City claimed the amendment to Rule 4.3 would
not be applied for many years. However, he noted that there were other provisions in the
parties’ contract that similarly covered future events, including “the sick leave cash-out at the
end of someone’s career.” Barksdale stated the terms of the parties’ contract were changed as
to that topic and that the change only affected new hires and would not be applied for
approximately 20 years.
¶ 11 On cross-examination, Barksdale testified that a police officer had to serve as a patrol
officer for seven years before he or she became eligible to apply for a promotion. Further, he
agreed that the Policemen’s Union had not asked to bargain the “impact” of the amendment
and that the City had not refused “impact” bargaining.
¶ 12 Gary Self testified he was the president of the Firefighter’s Union from 2015 to 2019 and
involved in the most recent CBA negotiations with the City, which began in November 2015.
The previous CBA expired in February 2016, and the new CBA was not finally agreed to until
February 2019. Self testified that during the parties’ contract negotiations, no proposals were
made relating to residency preference points for promotional exams.
¶ 13 Self testified that he did not become aware of the rule amendment adopted by the City’s
Civil Service Commission until after its adoption. He learned of the rule change through
conversations with the fire chief. Self further testified that when there was promotional testing
for members of his bargaining unit, the top scores would sometimes “come[ ] down to tenths
of a point.” According to him, adding three points to a candidate’s score “[a]bsolutely could
decide if someone was promoted.”
¶ 14 On cross-examination, Self testified City firefighters had “to have ten years’ total
department seniority” before they were eligible for promotion. Further, he agreed that the
Firefighter’s Union had not requested “to impact bargain” the amendment and also that the
City had not refused to “impact bargain.”
¶ 15 In October 2019, the ALJ issued a recommended decision and order, finding the City
violated the Act as alleged by the unions. See 36 PERI ¶ 113 (Administrative Law Judge’s
Recommended Decision and Order, Oct. 24, 2019) (hereinafter ALJ decision, 36 PERI ¶ 113).
Initially, the ALJ found the City’s Civil Service Commission was “an arm of the City” and that
its actions were “attributable to the City.” Id. He then determined that the issue of residency
preference points relating to the promotional process was a mandatory subject of bargaining
and that the City violated sections 10(a)(4) and 10(a)(1) by amending Rule 4.3 to allow for
such preference points without first providing both unions notice and an opportunity to bargain.
Id. The ALJ also found the City violated sections 10(a)(4) and 10(a)(1) of the Act because it
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failed to maintain the status quo during interest arbitration procedures as required under section
14(l) of the Act. Id.
¶ 16 In November 2019, the City filed exceptions to the ALJ’s recommended decision and
order, denying that it committed unfair labor practices by (1) altering Rule 4.3 without first
bargaining with the unions or (2) failing to maintain the status quo during interest arbitration
with the unions. Although it agreed that “a change in promotional preferences for residency”
was a mandatory subject of bargaining, the City maintained that the ALJ erred in finding the
matter had to be bargained before the rule change was adopted by the City’s Civil Service
Commission. The City cited a Board decision that it argued was factually similar to the present
case and demonstrated an employer does not commit an unfair labor practice if, after a change
is adopted, the union has an opportunity to bargain the change before it goes into effect.
Additionally, it maintained that supreme court case authority required only that “negotiation
must take place after a rule is adopted [by the City’s Civil Service Commission] but before
[the rule] is applied to union members.”
¶ 17 The City asserted that, in this case, it had not applied the challenged amendment to any
member of either the Policemen’s Union or the Firefighter’s Union. Citing the Illinois
Municipal Code, the City argued that state law expressly prohibited “the application of new
residency restrictions to current fire and police employees.” See 65 ILCS 5/10-1-7(b) (West
2016) (“Residency requirements in effect at the time an individual enters the fire or police
service of a municipality *** cannot be made more restrictive for that individual during his or
her period of service for that municipality, or be made a condition of promotion, except for the
rank or position of Fire or Police Chief.”). Accordingly, it maintained it could not apply the
preference points rule change to any police officer or firefighter who was employed on the date
the amendment was adopted, i.e., September 5, 2018.
¶ 18 The City further argued that the challenged amendment could not be applied for several
years to any member of the Policemen’s Union and Firefighter’s Union who was hired after
the amendment’s adoption. It noted police officers were required to serve a minimum of 7
years before becoming eligible for promotion, while firefighters were required to serve a
minimum of 10 years. Therefore, according to the City, the earliest that residency preference
points could be awarded to police officer candidates for promotion was 2025 and the earliest
they could be awarded to firefighter candidates for promotion was 2028.
¶ 19 Additionally, the City denied that either the Policemen’s Union or the Firefighter’s Union
was denied an opportunity to bargain. It argued that “[c]ontract negotiations were open for
both [unions] after the rule was adopted and before it was applied to [union] members.” The
City also asserted it had “offered to bargain over the application and impact of the rule” before
it was applied to union members and that both unions had refused.
¶ 20 In February 2020, the Board issued its decision and order, rejecting the City’s exceptions
and adopting the ALJ’s findings and recommendations in their entirety. Policemen’s
Benevolent & Protective Ass’n, 36 PERI ¶ 113. Initially, the Board found the City’s second
exception—its denial that it failed to maintain the status quo during interest arbitration—was
procedurally deficient. Id. The Board noted its rules required a party to state the grounds for
each exception the party submitted, along with citation to authority and the record. Id. It found,
however, that the City’s brief failed to discuss or mention its second exception and provided
no citations to authority or the record regarding that issue. Id. The Board stated it accepted the
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ALJ’s recommendation as to that issue, finding his decision well-reasoned and supported by
the record. Id.
¶ 21 The Board determined the City’s remaining exception—its challenge to the ALJ’s finding
that it unlawfully changed Rule 4.3 without first bargaining the change with the unions—
lacked substantive merit. Id. It noted the case authority relied upon by the City had been
sufficiently distinguished by the ALJ in his recommended decision and order and stated it
agreed with the ALJ’s assessment. Id.
¶ 22 This appeal followed.
¶ 23 II. ANALYSIS
¶ 24 On appeal, the City argues the Board erred in finding it committed unfair labor practices
by adopting a civil service commission rule amendment without offering either the
Policemen’s or Firefighter’s Unions “an opportunity to bargain its application and impact” and
while the parties were engaged in interest arbitration. As it did before the Board, the City
maintains there was no violation of the Act because the unions had the opportunity to bargain
before the amendment was applied to any union member.
¶ 25 A. Standards of Review
¶ 26 Initially, the parties dispute the applicable standard of review. The City argues a de novo
standard applies because the case involves no disputed facts and the question before this court
is a legal one: “[W]hen is a public employer obligated to negotiate the impact of a civil service
commission rule, (a) before the rule is adopted for all employees generally, including nonunion
employees, or (b) any time before the rule is applied to union members?” Conversely, the
Board and both the Policemen’s and Firefighter’s Unions contend that whether the City
committed an unfair labor practice presents a mixed question of law and fact, requiring
application of a clearly erroneous standard of review. We agree with the Board and the unions.
¶ 27 The Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2016)) governs our
review of the Board’s final order. See 5 ILCS 315/11(e) (West 2016). Under the Administrative
Review Law, judicial review extends “to all questions of law and fact presented by the entire
record before the court.” 735 ILCS 5/3-110 (West 2016). “The applicable standard of review
depends upon whether the question presented is one of fact, one of law, or a mixed question of
fact and law.” American Federation of State, County & Municipal Employees, Council 31 v.
Illinois State Labor Relations Board, State Panel, 216 Ill. 2d 569, 577, 839 N.E.2d 479, 485
(2005) (hereinafter AFSCME).
¶ 28 “An administrative agency’s findings and conclusions on questions of fact are deemed to
be prima facie true and correct.” City of Belvidere v. Illinois State Labor Relations Board, 181
Ill. 2d 191, 204, 692 N.E.2d 295, 302 (1998) (citing 735 ILCS 5/3-110 (West 1994)). On
review, this court “is limited to ascertaining whether such findings of fact are against the
manifest weight of the evidence.” Id. However, an agency’s findings on a question of law “are
reviewed with less deference” “on a de novo basis.” Id. at 205.
¶ 29 Finally, when a “case involves an examination of the legal effect of a given set of facts, it
involves a mixed question of fact and law” and a clearly erroneous standard of review applies.
Id.
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“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.)
AFSCME, 216 Ill. 2d at 577.
“A decision is ‘clearly erroneous’ when the reviewing court is left with the definite and firm
conviction that a mistake has been committed.” Id. at 577-78.
¶ 30 Here, the material facts are undisputed. In fact, the parties primarily relied upon an agreed
set of facts when presenting this case to the ALJ and the Board. Nevertheless, we disagree with
the City’s assertion that its appeal concerns solely a question of law. We note the applicable
rules of law are also not disputed. Instead, the primary conflict between the City and the unions
concerns the manner in which to interpret the relevant legal authorities when applying them to
the agreed-upon facts in this case. See City of Belvidere, 181 Ill. 2d at 205. Under these
circumstances, we find the City’s appeal presents mixed questions of law and fact and are
subject to the clearly erroneous standard of review.
¶ 31 B. The City’s Obligation to Bargain
¶ 32 Here, both the ALJ and the Board determined the City committed an unfair labor practice
by amending Rule 4.3 without first providing the Policemen’s and Firefighter’s Unions with
notice of the change and an opportunity for bargaining. As stated, the City challenges this
determination on appeal.
¶ 33 Under the Act, “[a] public employer and the exclusive representative [for its employees]
have the authority and the duty to bargain collectively.” 5 ILCS 315/7 (West 2016). Although
employers are not “ ‘required to bargain over matters of inherent managerial policy,’ ” they
must “ ‘bargain collectively with regard to policy matters directly affecting wages, hours and
terms and conditions of employment.’ ” City of Belvidere, 181 Ill. 2d at 203 (quoting 5 ILCS
315/4 (West 1994)). “The criteria used for determining promotions [is a] mandatory subject[ ]
of bargaining.” Mahoney v. City of Chicago, 293 Ill. App. 3d 69, 72, 687 N.E.2d 132, 135
(1997).
¶ 34 Under section 10(a)(4) of the Act (5 ILCS 315/10(a)(4) (West 2016)), a public employer
commits an unfair labor practice by refusing “to bargain collectively in good faith with a labor
organization which is the exclusive representative of public employees in an appropriate unit.”
Pursuant to section 10(a)(1) of the Act (id. § 10(a)(1)), it is also an unfair labor practice for a
public employer “to interfere with, restrain or coerce public employees in the exercise of the
rights guaranteed in th[e] Act.” Ultimately, “[a] public employer *** violates its obligation to
bargain in good faith, and therefore sections 10(a)(1) and (4) of the Act, when it makes a
unilateral change in a mandatory subject of bargaining without granting notice and an
opportunity to bargain with its employees’ exclusive bargaining representative.” Amalgamated
Transit Union, Local 241 v. Illinois Labor Relations Board, Local Panel, 2017 IL App (1st)
160999, ¶ 35, 87 N.E.3d 315.
¶ 35 On appeal, the City acknowledges that the amendment to Rule 4.3, which provided for an
award of preference points based on residency during the promotional process, concerned a
mandatory subject of bargaining. Further, it does not challenge the ALJ and Board’s findings
that it did not provide notice of or an opportunity for bargaining the decision to change Rule
4.3 before September 5, 2018, when the amendment to the rule was adopted. Instead, the City
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contends that no unilateral change resulted from the adoption of the amendment because the
amendment (1) did not apply to any current union members and (2) could not be applied to
future union members for a period of several years. As a result, the City maintains an
opportunity for bargaining was not required before the amendment was adopted in September
2018 but only sometime before it was actually “applied to union members,” which according
to the City will not occur until 2025 at the earliest. It further argues that it “offered to bargain
over the application and impact of the rule before it applies” to union members but both unions
refused its offer.
¶ 36 1. Current Union Members
¶ 37 To support its contention that the amendment to Rule 4.3 did not apply to any union
member that was already employed on the date of its adoption, the City cites section 10-1-7(b)
of the Municipal Code (65 ILCS 5/10-1-7(b) (West 2016)). That section, entitled “Examination
of applicants; disqualifications,” states as follows:
“Residency requirements in effect at the time an individual enters the fire or police
service of a municipality (other than a municipality that has more than 1,000,000
inhabitants) cannot be made more restrictive for that individual during his or her period
of service for that municipality, or be made a condition of promotion, except for the
rank or position of Fire or Police Chief.” Id.
According to the City, section 10-1-7(b) should be interpreted to mean the September 5, 2018,
amendment went “into effect for all City employees except the members of the charging unions
in this case.” (Emphasis in original.) In other words, the amendment’s application was limited
to only new hires.
¶ 38 The City’s argument as to section 10-1-7(b) is conclusory in that it fails to present any
reasoned analysis as to how that section impacts upon its amendment to Rule 4.3. We note that
when interpreting a statute, the “primary objective is to ascertain and give effect to the intent
of the legislature.” County of Du Page v. Illinois Labor Relations Board, 231 Ill. 2d 593, 603-
04, 900 N.E.2d 1095, 1101 (2008). “The most reliable indicator of such intent is the language
of the statute, which is to be given its plain and ordinary meaning.” Id. at 604.
¶ 39 Here, as the unions argue, section 10-1-7(b), by its plain and unambiguous terms, prohibits
a City from making “[r]esidency requirements” for police and fire personnel more restrictive
than they were at the time of hire or making them “a condition of promotion.” However, the
challenged amendment in this case, sets forth no “requirements” or restrictions based on
residency nor does it make residency status a “condition” of promotion. Rather, it has the effect
of giving employees who live within the City an advantage when competing for a promotion
by providing for an award of preference points on promotional examinations. Individuals living
outside the City remain eligible for both employment and promotion. Accordingly, section 10-
1-7(b) simply does not restrict the application of the Rule 4.3 amendment as asserted by the
City.
¶ 40 Similarly, nothing in the language of the Rule 4.3 amendment limits its application to only
new police officer or firefighter hires. The amendment contains no qualifying language and
applies on its face to “[q]ualified persons who have passed an examination for promotion.”
Moreover, even assuming that the amendment’s application was limited to new hires, the City
fails to address the Board’s contention on appeal that “current” employees would still be
affected by application of the amendment. As the Board points out, those employees hired prior
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to the amendment’s adoption could ultimately be disadvantaged by the amendment’s
application because they could compete for promotions against new hires who are eligible to
receive residency preference points. Given the circumstances presented, we find no merit to
the City’s argument that the Rule 4.3 amendment could not be applied to, or that it had no
effect on, current union members.
¶ 41 2. Future Union Members
¶ 42 Next, in arguing that no unilateral change resulted from the adoption of the amendment to
Rule 4.3 because it could not be applied for several years to future union members, i.e., those
hired after its adoption in September 2018, the City primarily relies upon one Board decision—
International Brotherhood of Electrical Workers, Local 193, 35 PERI ¶ 15 (ILRB State Panel
2018) (hereinafter IBEW, 35 PERI ¶ 15)—and two supreme court decisions—City of Decatur
v. American Federation of State, County, & Municipal Employees, Local 268, 122 Ill. 2d 353,
522 N.E.2d 1219 (1988), and American Federation of State, County & Municipal Employees,
Council 31 v. County of Cook, 145 Ill. 2d 475, 584 N.E.2d 116 (1991).
¶ 43 In IBEW, six labor organizations filed unfair labor practice charges against the City,
alleging an ordinance, which concerned the timing of vacation payouts, “constituted an
unlawful change to a mandatory subject of bargaining.” IBEW, 35 PERI ¶ 15. The ordinance
was passed and signed into law in July 2015 but did not take effect until June 1, 2016. Id. The
ALJ found the City committed unfair labor practices in two of the cases because it failed to
bargain over the changes, which concerned mandatory subjects of bargaining, prior to passing
the ordinance. Id. Before the Board, the City challenged the ALJ’s conclusion that the
ordinance “constituted an unlawful unilateral change with respect to” the unions. Id.
¶ 44 The Board noted that “[a]n employer violates its duty to bargain in good faith when it
makes a unilateral change to a mandatory subject of bargaining without granting notice and an
opportunity to bargain with its employees’ exclusive representative.” (Emphasis in original.)
Id. It found that in the case before it, the ALJ overlooked the fact that the unions “had the
opportunity to bargain before the June 1, 2016 effective date of the [ordinance].” (Emphasis in
original.) Id. Specifically, it noted that the unions “had notice and an opportunity to bargain
the timing of vacation payouts as both entered into negotiations for a successor [CBA] after
the *** [o]rdinance was introduced and ratified the agreement before the June 1, 2016 effective
date of the ordinance.” Id.
¶ 45 Here, we agree with the Board’s finding that IBEW is distinguishable. As noted by the
Board, the change at issue in IBEW was not immediately effective and the evidence presented
indicated notice to the unions and opportunities for bargaining prior to its effective date. By
contrast, the amendment to Rule 4.3 was effective when it was approved by the City’s Civil
Service Commission in September 2018, and the City does not dispute that it failed to give
notice of the amendment and an opportunity for bargaining prior to its effective date.
¶ 46 The City argues that, in distinguishing IBEW, the Board ignored “the fact that the rule
change here does not apply to [union] members for at least [seven] years.” (Emphasis omitted.)
However, as found by both the ALJ and the Board, “the unfair labor practice here is the
unilateral change to Rule 4.3, and not its application to particular individuals.” Policemen’s
Benevolent & Protective Ass’n, 36 PERI ¶ 113 (citing Wapella Education Ass’n v. Illinois
Educational Labor Relations Board, 177 Ill. App. 3d 153, 168, 531 N.E.2d 1371, 1380 (1988)
(stating a “claimed unfair labor practice is the unilateral change in policy not its application to
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particular individuals per se”)). In this instance, the City unilaterally changed Rule 4.3 through
the amendment adopted by the City’s Civil Service Commission on September 5, 2018. Even
if we were to agree that the amendment could not be applied to union members for several
years, such circumstances do not negate the fact that a change, without notice and an
opportunity for bargaining, occurred when the amendment was adopted and in effect.
¶ 47 As stated, the City also cites two supreme court cases for the proposition that bargaining
between a public employer and a labor representative may lawfully occur after a city’s civil
service commission adopts a rule but before the rule is applied to union members. First, in City
of Decatur, 122 Ill. 2d at 357, a union alleged the City of Decatur committed an unfair labor
practice by refusing “to bargain over a union proposal that would permit employees to submit
disciplinary grievances to arbitration.” The City, which had adopted a civil service commission
under the Municipal Code, argued it had “no duty to bargain over disciplinary matters that fell
within the scope of the municipal civil service system.” Id.
¶ 48 In addressing the issue, the supreme court considered the policy behind the Act, the
legislative preference for arbitration to resolve disputes, and the “nature” of the civil service
system provided for in the Municipal Code. Id. at 364-66. With respect to that latter
consideration, it noted the Municipal Code provided for “an optional scheme” and that,
generally speaking, “a municipality that has adopted the system may unilaterally alter or amend
one of its terms.” Id. at 365. Ultimately, however, the court rejected the City’s argument and
stated it did “not believe that the legislature would have intended that the civil service system
it made available, as an optional matter, to municipalities in the Municipal Code would
eliminate the duty to bargain over the union’s proposal.” Id. at 367.
¶ 49 Second, in County of Cook, 145 Ill. 2d at 478, the union filed an unfair labor practice charge
with the Board, asserting the county failed to bargain in good faith over the effects of a civil
service commission examination requirement for a computer operator position. Relying on the
rationale set forth in City of Decatur, the supreme court held the county was obligated to
bargain as asserted by the union. Id. at 482. It held public policy considerations, especially
“[w]hen coupled with the optional nature of the civil service system under which the county
operate[d],” supported the finding of a duty to bargain. Id. at 486. It further stated as follows:
“In City of Decatur, this court observed that ‘[w]e do not believe that the legislature
intended to make the broad duties imposed by the Act hostage to the myriad of State
statutes and local ordinances pertaining to matters of public employment.’ [Citation.]
To the State statutes and local ordinances mentioned in City of Decatur, we now add
local civil service commission rules as not precluding the broad duty to bargain
recognized in [the Act].” Id. at 490 (quoting City of Decatur, 122 Ill. 2d at 364).
¶ 50 Here, as determined by both the ALJ and the Board, City of Decatur and County of Cook
do not support the City’s arguments in this case. Both cases confirmed a public employer’s
duty to bargain as set forth in the Act even over subjects that may also fall within the scope of
a civil service commission. Moreover, neither case addresses the precise issue presented in this
case, nor do they stand for the proposition argued by the City on appeal—that it was not
required to bargain before adopting the amendment to Rule 4.3. As stated by the ALJ and
confirmed by the Board, the City has selectively quoted portions of City of Decatur without
putting the language it cites in the proper context. See Policemen’s Benevolent & Protective
Ass’n, 36 PERI ¶ 113. Ultimately, none of the case authority cited by the City warrants reversal
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of the Board’s decision.
¶ 51 3. Opportunity to Bargain
¶ 52 The City additionally argues that neither the Policemen’s Union nor the Firefighter’s Union
were denied an opportunity for bargaining in this case. It notes that after the amendment to
Rule 4.3 was adopted, it “offered to bargain over the application and impact of the rule.”
¶ 53 The Act provides that public employers are “required to bargain collectively with regard
to policy matters directly affecting wages, hours and terms and conditions of employment as
well as the impact thereon upon request by employee representatives.” (Emphasis added.) 5
ILCS 315/4 (West 2014). Additionally, “impact” bargaining is not the same as, nor a substitute
for, bargaining over a mandatory subject of bargaining in the first instance. See Central City
Education Ass’n v. Illinois Educational Labor Relations Board, 199 Ill. App. 3d 559, 569, 557
N.E.2d 418, 425 (1990) (holding the impact bargaining that followed a layoff decision was not
a substitute for mandatory bargaining of the decision itself).
¶ 54 Here, the City’s willingness to bargain the impact of its amendment to Rule 4.3 did not
excuse it from providing notice of and an opportunity to bargain its initial decision to adopt
the amendment. As the ALJ determined and the Board confirmed, the City’s arguments
otherwise “ignore” its “decisional bargaining” obligation. See Policemen’s Benevolent &
Protective Ass’n, 36 PERI ¶ 113. The Board’s determination that the City committed unfair
labor practices by amending Rule 4.3 without notice to the unions or an opportunity for
bargaining was not clearly erroneous.
¶ 55 C. Status Quo During Interest Arbitration
¶ 56 On appeal, the City also asserts a challenge to the Board’s determination that it
impermissibly changed the status quo during interest arbitration with the unions.
¶ 57 “In a typical negotiation where the parties have reached an impasse, the employer can
unilaterally implement its final offer, and employees can strike.” Village of North Riverside v.
Illinois Labor Relations Board, State Panel, 2017 IL App (1st) 162251, ¶ 20, 87 N.E.3d 394.
However, the Act prohibits certain employees, like police officers and firefighters, from
striking, given the essential nature of the services they provide to the community. Id. (citing 5
ILCS 315/14(l), (m) (West 2014)). As an alternative to the ability to strike, such employees
have the ability to submit bargaining disputes to impartial arbitrators. 5 ILCS 315/2 (West
2016) (“To prevent labor strife and to protect the public health and safety of the citizens of
Illinois, all collective bargaining disputes involving persons designated by the Board as
performing essential services and those persons defined herein as security employees shall be
submitted to impartial arbitrators, who shall be authorized to issue awards in order to resolve
such disputes.”).
¶ 58 More specifically, “the legislature has empowered firefighters [and police officers] through
interest arbitration,” as set forth in section 14 of the Act (id. § 14). Village of North Riverside,
2017 IL App (1st) 162251, ¶ 22. Subsection (l) of that section provides as follows:
“During the pendency of proceedings before the arbitration panel, existing wages,
hours, and other conditions of employment shall not be changed by action of either
party without the consent of the other ***. The proceedings are deemed to be pending
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before the arbitration panel upon the initiation of arbitration procedures under this Act.”
5 ILCS 315/14(l) (West 2016).
¶ 59 In this case, the ALJ determined that the City committed an unfair labor practice by failing
to maintain the status quo during interest arbitration as required by section 14(l) of the Act.
See ALJ decision, 36 PERI ¶ 113. The City filed an exception to that finding with the Board;
however, the Board found the issue as presented by the City was procedurally deficient based
on the City’s failure to present a sufficient argument as to that issue, and it affirmed the ALJ’s
decision. Policemen’s Benevolent & Protective Ass’n, 36 PERI ¶ 113. On appeal, the unions
and the Board argue the City has forfeited any challenge to the Board’s finding that it failed to
maintain the status quo. We agree with the unions and the Board.
¶ 60 First, “[t]he failure of a party to raise an argument in its exceptions to the hearing officer’s
recommended decision and order [forfeits] that argument for purposes of review.” Department
of Central Management Services v. Illinois State Labor Relations Board, 278 Ill. App. 3d 79,
82, 662 N.E.2d 131, 133 (1996). Here, although the City raised an exception to the ALJ’s
decision that it violated section 14(l) of the Act, it did not develop its argument as to that claim,
providing no reasoned analysis or citation to legal authority. Such inaction amounts to a failure
to raise the argument with the Board and warrants a finding of forfeiture for purposes of
appellate review.
¶ 61 Second, the City’s arguments on appeal as to this issue are similarly deficient. In its
appellant’s brief, the City presents a single conclusory sentence, asserting it did not “alter[ ]
the status quo for either unions’ current members.” It neglects to fully develop that argument
and does not challenge the Board’s earlier rejection of its argument on the basis that it was
procedurally deficient. We note the argument section of an appellant’s brief must “contain the
contentions of the appellant and the reasons therefor, with citation of the authorities and the
pages of the record relied on.” Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018). Additionally,
“[p]oints not argued are forfeited and shall not be raised in the reply brief, in oral argument, or
on petition for rehearing.” Id. Here, the City failed to present a reasoned argument as to this
issue, and we agree it has been forfeited.
¶ 62 Additionally, even if we were to set aside the City’s forfeiture, we would find no merit to
its claim. In its reply brief, the City maintains “it cannot be argued that [it] waived an objection
to the ALJ’s finding that [it] altered the status quo during negotiations” because its “consistent
response to all the findings is that no change has occurred at this time to the union’s [sic]
membership.” However, for all the reasons discussed above, a “change” to a mandatory subject
of bargaining occurred when the City’s Civil Service Commission unilaterally adopted the
amendment to Rule 4.3 in September 2018. The amendment altered the status quo between the
parties without the unions’ consent. Further, the City does not dispute that the amendment was
adopted while interest arbitration was pending. Accordingly, the Board did not err in finding
the City committed unfair labor practices based upon violations of section 14(l) of the Act.
¶ 63 III. CONCLUSION
¶ 64 For the reasons stated, we affirm the Board’s decision.
¶ 65 Affirmed.
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