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

Docket Nos. 101450, 101508, 101542, 101558 cons.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

THE BOARD OF TRUSTEES OF THE UNIVERSITY OF

ILLINOIS, Appellee, v. THE ILLINOIS LABOR RELATIONS

BOARD et al., Appellants.–THE BOARD OF TRUSTEES OF THE

UNIVERSITY OF ILLINOIS, Appellee, v. THE ILLINOIS

EDUCATIONAL LABOR RELATIONS BOARD et al., Appellants.

Opinion filed January 19, 2007.

JUSTICE KILBRIDE delivered the judgment of the court, with

opinion.

Chief Justice Thomas and Justices Freeman, Fitzgerald, and Burke

concurred in the judgment and opinion.

Justice Garman dissented, with opinion, joined by Justice

Karmeier.

OPINION

In this consolidated case, we must construe whether the unionized

public employees’ proposal on parking arrangements for personal

vehicles constitutes a subject of mandatory collective bargaining under

the applicable state labor relations acts. In each case, the

administrative law judge (ALJ) and the reviewing labor relations board

applied the test in Central City Education Ass’n v. Illinois

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

determine whether bargaining was mandatory and concluded that it

was mandatory. The appellate court reversed, holding that employee

parking is not subject to mandatory bargaining. 359 Ill. App. 3d 1116;

361 Ill. App. 3d 256. We reverse the appellate court in each of the

consolidated cases.

I. BACKGROUND

In the case appealed by the Illinois Educational Labor Relations

Board (IELRB) and the Service Employees International Union, Local

73, Chapter 119 (SEIU), the SEIU proposed a parking fee schedule

that based the amount of the fee on the time of day and type of

parking. The Board of Trustees of the University of Illinois at Urbana

(University) refused to negotiate on the proposal and unilaterally

increased the parking fees because it maintained that parking was

subject only to permissive bargaining.

In June 2001, the SEIU filed an unfair labor practice charge with

the IELRB. The next year, the SEIU filed a second unfair labor

practices charge alleging that the University continued to refuse to

bargain on the issue of parking fees. The cases were consolidated, and

a full evidentiary hearing was held before an ALJ. The ALJ found that

parking and parking fees constituted terms and conditions of

employment and that these matters were outside the University’s

inherent managerial authority. Service Employees International

Union, Local 73, Chapter 119, 19 Pub. Employee Rep. (Ill.) par. 150,

Nos. 2001–CA–0044–S, 2003–CA-0005–S cons. (IELRB, ALJ’s

Recommended Decision and Order, September 5, 2003) (hereinafter

19 Pub. Employee Rep. (Ill.) par. 150). Thus, the ALJ determined

that, pursuant to the test adopted in Central City, 149 Ill. 2d at 523,

the University’s refusal to bargain collectively on the SEIU’s parking

proposal was an unfair labor practice in violation of sections 14(a)(1)

and 14(a)(5) of the Illinois Educational Labor Relations Act

(Educational Act) (115 ILCS 5/14(a)(1), (a)(5) (West 2000)). The

ALJ’s recommended decision and order was supported by findings of

fact and law and required the University to bargain in good faith over

the issue of parking and parking fees. 19 Pub. Employee Rep. (Ill.)

par. 150.

The IELRB reviewed the recommended decision and adopted the

ALJ’s findings of fact. While the IELRB agreed with the

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determination that parking was a term and condition of employment,

the majority believed that parking-related issues were within the

purview of the University’s inherent managerial authority. Service

Employees International Union, Local 73, Chapter 119, 20 Pub.

Employee Rep. (Ill.) par. 40, Nos. 2001–CA–0044–S,

2003–CA–0005–S (IELRB March 22, 2004). The majority then

applied the third step of the Central City test, finding that the benefits

of bargaining the issue of parking and parking fees outweighed the

burden it imposed on the University’s inherent managerial authority.

20 Pub. Employee Rep. (Ill.) par. 40. Accordingly, the IELRB upheld

the ALJ’s finding that the University had engaged in unfair labor

practices and must collectively bargain on parking issues. A partial

dissent to this decision disagreed with the conclusion that the benefits

of bargaining parking fees demonstrably outweighed the burdens of

bargaining on the University’s managerial authority. 20 Pub.

Employee Rep. (Ill.) par. 40, at 264 (Snyder, dissenting in part).

The appellate court reviewed the cause and reversed the IELRB’s

decision. 359 Ill. App. 3d at 1124. The court asserted that the

IELRB’s finding that parking fees involved a term and condition of

employment was not clearly erroneous, but the majority held the

finding that, on balance, the benefits of bargaining outweighed the

burdens was clearly erroneous. The court did not consider whether

parking fees were a matter of the University’s inherent managerial

authority, the second prong of the Central City test, because that issue

was not raised by the parties. 359 Ill. App. 3d at 1122-24.

Acknowledging that the issue was not before the court, the dissent

nonetheless stated that parking fees were not part of the University’s

inherent managerial authority. The dissent concluded that the majority

ignored its limited role on review by overturning the IELRB’s

balancing decision. 359 Ill. App. 3d at 1124-25 (Myerscough, J.,

specially concurring in part and dissenting in part). Both the SEIU and

the IELRB filed petitions for leave to appeal, and this court allowed

the petitions. 210 Ill. 2d R. 315.

In the other cause in this consolidated appeal, the Illinois Fraternal

Order of Police Labor Council (FOP) filed two unfair labor practice

charges against the University, similar to those raised in the SEIU

case. As a part of ongoing negotiations with the University, the FOP

had submitted a proposal containing additional language stating that:

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“[t]he Employer shall provide bargaining unit members with a parking

space for their personal vehicles while on duty in a location reasonably

close to their assignment or work, or alternatively, reimburse them for

the cost of obtaining same.” As in the SEIU cause, the University

refused to bargain, maintaining that parking proposals were not

mandatory bargaining subjects.

After a full evidentiary hearing, the ALJ issued a recommended

decision and order supported by findings of fact and law. The ALJ

concluded that the FOP’s parking proposals were mandatory subjects

of bargaining and that the University’s refusal to bargain in good faith

was a violation of 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 2000)).

This decision was based on the ALJ’s findings that the FOP’s parking

proposal concerned a term or condition of employment, but did not

involve inherent managerial authority. Illinois Fraternal Order of

Police Labor Council, 20 Pub. Employee Rep. (Ill.) par. 84, Nos.

S–CA–02–038, S–CA–02–048 cons. (ILB, State Panel, May 14,

2004). The University brought the case before the Illinois Labor

Relations Board (ILRB). The ILRB upheld the ALJ’s decision,

agreeing that the proposal did not affect the University’s inherent

managerial authority. 20 Pub. Employee Rep. (Ill.) par. 84.

On administrative review, the appellate court reversed the

decisions of the ALJ and the ILRB. 361 Ill. App. 3d at 269. The court

determined that the ALJ’s conclusion that parking and parking fees

constituted terms and conditions of employment was not erroneous,

but the majority believed it was clear error to find that parking and

parking fees were not part of the University’s inherent managerial

authority. 361 Ill. App. 3d at 268. Next, the majority applied the third

prong of the Central City test, finding that the significant burdens that

bargaining placed on the University outweighed its limited benefits.

Thus, the parking issue presented only a permissible subject for

bargaining, not a mandatory one. 361 Ill. App. 3d at 269. The dissent

asserted that the analysis should have ended with the second prong of

the Central City test because the ILRB’s finding that parking issues

did not affect the University’s inherent managerial authority should

not have been overturned as clearly erroneous. 361 Ill. App. 3d at 269

(Myerscough, J., dissenting).

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Both the FOP and the ILRB filed petitions for leave to appeal.

This court allowed the petitions (210 Ill. 2d R. 315) and consolidated

the appeals of the underlying cause of action with those filed by the

SEIU and the IELRB. We allowed the Illinois Education

Association–NEA leave to file a brief as amicus curiae in support of

the IELRB’s order. 210 Ill. 2d R. 345.

II. ANALYSIS

In this appeal, we consider whether the appellate court properly

applied the standard of review in overturning the decisions of the

IELRB and the ILRB (Boards) and holding that the University’s

refusal to bargain was not an unfair labor practice because the

parking-related proposals of the SEIU and the FOP (unions) were not

mandatory subjects of collective bargaining. We begin our analysis

with the applicable statutes.

The purposes of the two statutory schemes are similar. The Act is

intended to “regulate labor relations between public employers and

employees,” specifically excluding labor relations between

“educational employees” and “educational employers.” 5 ILCS 315/2

(West 2000). Labor relations between the latter two groups are

governed by the Educational Act (115 ILCS 5/1 (West 2000)).

“[P]eace officers employed by a State university” are specifically

excluded from coverage by the Educational Act (115 ILCS 5/2(b)

(West 2000)), however, and are deemed “public employee[s]” by the

Act (5 ILCS 315/3(n) (West 2000)). Thus, the charges of unfair labor

practices filed against the University by the FOP are governed by the

Act and fall under the jurisdiction of the ILRB (5 ILCS 315/5 (West

2000)). The charges filed by the SEIU are governed by the

Educational Act, under the jurisdiction of the IELRB (115 ILCS 5/5

(West 2000)).

In relevant part, the Act and the Educational Act similarly define

an unfair labor practice to include both an employer’s interference

with, restraint of, or coercion of “employees in the exercise of the

rights guaranteed” by the statutes (5 ILCS 315/10(a)(1) (West 2000);

115 ILCS 5/14(a)(1) (West 2000)) and an employer’s refusal to

engage in good-faith collective bargaining with the exclusive

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representative of “employees in an appropriate unit” (5 ILCS

315/10(a)(4) (West 2000); 115 ILCS 5/14(a)(5) (West 2000)).

In Central City Education Ass’n v. Illinois Educational Labor

Relations Board, 149 Ill. 2d 496, 523 (1992), this court adopted a

three-part test for determining whether an issue is subject to

mandatory bargaining under the Educational Act. In remanding the

cause in Central City, we explained that “the application of this test

requires a detailed factual analysis that the IELRB is particularly well

suited to examine.” Central City, 149 Ill. 2d at 524. This court has

since also applied the Central City test in cases arising under the Act.

See City of Belvidere v. Illinois State Labor Relations Board, 181 Ill.

2d 191, 206 (1998)). Thus, we will examine each of the consolidated

cases under this test.

In step one, the Central City test considers whether the issue “is

one of wages, hours and terms and conditions of employment,” a

question “the [Boards are] uniquely qualified to answer.” Central

City, 149 Ill. 2d at 523. If the issue does not involve wages, hours,

and terms and conditions of employment, the employer need not

bargain over it, and the analysis is complete. If it does, the second step

is to determine whether the issue is “one of inherent managerial

authority.” Central City, 149 Ill. 2d at 523.

“Inherent managerial authority” was further defined in Ford Motor

Co. v. National Labor Relations Board as those matters residing “ ‘at

the core of entrepreneurial control.’ ” Ford Motor Co. v. National

Labor Relations Board , 441 U.S. 488, 498, 60 L. Ed. 2d 420, 429,

99 S. Ct. 1842, 1850 (1979), quoting Fibreboard Paper Products

Corp. v. National Labor Relations Board, 379 U.S. 203, 223, 13 L.

Ed. 2d 233, 246, 85 S. Ct. 398, 409 (1964) (Stewart, J., concurring,

joined by Douglas and Harlan, JJ.). This definition was quoted with

approval in Central City. Central City, 149 Ill. 2d at 518. If the issue

does not involve the employer’s inherent managerial authority, then it

is subject to mandatory bargaining. If it does, the analysis proceeds to

the third and final step. Central City, 149 Ill. 2d at 523.

The final step is a balancing test, weighing “the benefits that

bargaining will have on the decisionmaking process with the burdens

that bargaining imposes on the employer’s authority.” Central City,

149 Ill. 2d at 523. In this step, the determination of whether an issue

is a subject of mandatory bargaining is “very fact-specific,” and the

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Boards are “eminently qualified to resolve” that question. Central

City, 149 Ill. 2d at 523.

Judicial review of decisions issued by the Boards is necessarily

limited by the Administrative Review Law. 735 ILCS 5/3–110 (West

2000); 5 ILCS 315/11(e) (West 2000). As we explained in City of

Belvidere, the clearly erroneous standard of review is proper when

reviewing a decision of the IELRB or the ILRB because the decision

represents a mixed question of fact and law. City of Belvidere, 181 Ill.

2d at 205. An agency decision will be reversed because it is clearly

erroneous only if the reviewing court, based on the entirety of the

record, is “ ‘left with the definite and firm conviction that a mistake

has been committed.’ ” AFM Messenger Service, Inc. v. Department

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

States v. United States Gypsum Co., 333 U.S. 364, 395, 92 L. Ed. 2d

746, 766, 68 S. Ct. 525, 542 (1948). While this standard is highly

deferential, it does not relegate judicial review to mere blind deference

of an agency’s order. AFM Messenger, 198 Ill. 2d at 395.

A. Step One of the Central City Test

Prior to applying the first step of the Central City test, we must

address a motion filed jointly by the IELRB and the ILRB. In the

motion, the Boards seek to strike the University’s request for cross-

relief and its reply brief addressing that request because the University

had already received full relief from the appellate court and was

merely seeking to present an alternative argument supporting those

courts’ judgments. We agree with the Boards’ view of the

University’s actions. Its request for cross-relief raises only the issue of

whether the appellate court properly favored the position of the

Boards and the unions in step one of the Central City test. Thus, we

grant the Boards’ motion in part, striking the University’s reply brief

as improper. See 210 Ill. 2d R. 315(h) (permitting the appellee to file

a reply brief only “[i]f the brief of the appellee contains arguments in

support of cross-relief”). We will, however, treat the University’s

request for cross-relief as an additional argument for upholding the

appellate court’s judgments and decline the Boards’ suggestion to

strike it entirely.

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On the substantive issue, the University contends that the Boards

erred by concluding that the unions’ proposals involved “wages, hours

and terms and conditions of employment,” step one of the Central

City test (Central City, 149 Ill. 2d at 523). Thus, we must determine

whether the appellate court properly found that the Boards’ decisions

were not clearly erroneous. The parties’ arguments focus on whether

the proposals affected a “term or condition of employment.”

The University contends that parking in University lots is not a

condition of employment because employees are not required to use

these facilities. Parking is merely a “service” for employees, students,

and the general public alike. As a general service, parking is

completely outside the scope of the employees’ working conditions

and cannot logically be deemed a term or condition of employment.

Notably, the University asserts this position while adamantly

maintaining in another part of its argument that adequate parking

services are “essential” to the ability of its students to access their

academic buildings. The University distinguishes Ford Motor Co., 441

U.S. 488, 60 L. Ed. 2d 420, 99 S. Ct. 1842, relied on heavily by the

Boards, and cites decisions by the New York Public Employment

Board finding that a $5 annual vehicle registration fee applicable to all

students, employees, and campus visitors was not subject to

mandatory bargaining because it was not related to employment status

(see, e.g., Council 82 AFSCME, 26 N.Y. Pub. Employee Rep. (LRP)

par. 4615 (1993); State of New York (State University of New York at

Binghamton), 19 Pub. Employee Rep. par. 3029 (1986)).

In Ford Motor Co., the Supreme Court held, in relevant part, that

the food services and prices offered in the employer’s plant

constituted terms and conditions that were obviously relevant to the

employees’ work environment. The Court noted that “[i]t reasonably

follows that the availability of food during working hours and the

conditions under which it is to be consumed are matters of deep

concern to workers, and one need not strain” to find that this issue

constituted a term or condition of employment, triggering a

mandatory duty to bargain. Ford Motor Co., 441 U.S. at 498, 60 L.

Ed. 2d at 428-29, 99 S. Ct. at 1849. The University attempts to

distinguish this case on its facts because in-plant food prices applied

only to employees and “intimately affected” workers, who had no

reasonable alternatives during their workday. We reject that argument,

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finding that the rationale in Ford Motor Co. supports the opposite

conclusion.

The Court in Ford Motor Co. added that while a worker’s interest

in concern about the availability of food during the workday was

justifiable,

“[b]y the same token, where the employer has chosen,

apparently in his own interest, to make available a system of

in-plant feeding facilities for his employees, the prices at

which food is offered and other aspects of this service may

reasonably be considered among those subjects about which

management and union must bargain.” (Emphases added.)

Ford Motor Co., 441 U.S. at 498, 60 L. Ed. 2d at 429, 99 S.

Ct. at 1849.

Here, the record shows that the majority of union employees commute

to work by car and that the University has chosen to provide a system

of parking lots and structures for their use. It is undisputed that the

University is not in the business of providing parking services. The

University argues that the facts in Ford Motor Co. are distinguishable

because while the University’s parking facilities are open to the

students, faculty, and other staff, and the general public, as well as to

union employees, the cafeteria facilities in Ford Motor Co. were used

only by employees.

We are unconvinced by the University’s argument. The relevant

analysis in Ford Motor Co. does not rely on either employees’

mandatory or employees’ exclusive use of the employer’s ancillary

services. Indeed, the Court cited with approval National Labor

Relations Board cases stating that the possibility of alternative service

options was not sufficient to preclude cafeteria food prices from the

scope of mandatory bargaining issues. Ford Motor Co., 441 U.S. at

493 n.6, 60 L. Ed. 2d at 425 n.6, 99 S. Ct. at 1847 n.6. The key to the

analysis is the critical relationship these auxiliary services have to

employees’ working lives. Both here and in Ford Motor Co., the

auxiliary services affect workers’ welfare and permit them to perform

their duties in a timely and efficient manner. Due to the nature of the

services offered in Ford Motor Co., there was little reason for the

public to use the cafeteria facilities. In contrast, the University’s

parking facilities are in high demand by a large number of diverse

groups. The wider demand placed on limited University parking

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services compared to Ford Motor Company’s food services does not

necessitate a different analysis or result. Indeed, that high demand

places even more pressure on the limited alternative parking available

to FOP and SEIU members.

As the ALJs in both the FOP and the SEIU cases noted, the

feasible alternative parking options available to union employees were

often extremely limited, highly competitive, and their use was not

conducive to workplace efficiency. In the findings of fact, the ALJ in

the SEIU case noted that approximately 90% of the union’s members

drive to work and that about half start their workday before the City

of Urbana allows on-street parking in nearby residential areas.

Moreover, some streets near the University have parking restrictions,

and parking problems are exacerbated during daylight hours, when

demand is at a peak. Even SEIU members who work night shifts in

some departments have difficulty finding on-street parking due to

parking restrictions and limited quantity. 19 Pub. Employee Rep. (Ill.)

par. 150. The IELRB agreed with the ALJ’s finding that the SEIU’s

parking proposal involved terms and conditions of employment, and,

as we stated in Central City, we believe the labor board is

“particularly well suited to examine” this type of “detailed factual

analysis.” Central City, 149 Ill. 2d at 524; 20 Pub. Employee Rep.

(Ill.) par. 40.

The ALJ in the FOP case found that “most if not all of the [FOP

members] drive personal vehicles to and from their jobs” and that the

record contains no evidence establishing the sufficiency, availability,

or cost of private parking options. The ALJ also noted that the record

fails to show that alternatives such as bus service, city parking lots,

and free or metered on-street parking spaces were adequate or

consistently available. The ALJ stated that metered municipal parking

lots and some metered on-street parking are not available 24 hours a

day, when FOP members are required to be available for duty. In

addition, free on-street parking is difficult to locate, particularly

during the academic year. 20 Pub. Employee Rep. (Ill.) par. 84. The

ILRB affirmed the ALJ’s findings, specifically stating that “employee

parking in the instant case clearly concerns the wages, hours or terms

and conditions of employment of unit employees.” 20 Pub. Employee

Rep. (Ill.) par. 84, at 481 n.1. As we have noted, the ILRB is “well

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suited” to evaluate the factual findings in these cases. Central City,

149 Ill. 2d at 524; 20 Pub. Employee Rep. (Ill.) par. 84.

Even if metered street parking reasonably close to the workplace

could be reliably found, as the ALJ in the FOP case recognized, the

workday would be repeatedly disrupted by a worker’s need to add

money to the parking meter or risk a parking ticket. Moreover, the

FOP asserts that its peace officers must be available for changing job

assignments and overtime work requiring access to equipment they

transport in their private vehicles, making reliable nearby parking

critical to their ability to perform their jobs. The integral role that

adequate parking plays in any employee’s ability to get to the

workplace in a timely manner and to perform daily duties without

outside disruptions due to parking factors is self-evident. The Boards’

decision is entitled to significant deference (AFM Messenger, 198 Ill.

2d at 395), and their decision that the unions’ parking proposals

related to a term or condition of employment is not clearly erroneous.

B. Step Two of the Central City Test

Turning to the second step of the Central City test, we first

consider whether the parking issues raised in the FOP’s case affect a

matter of inherent managerial authority. The University offers a two-

pronged argument supporting its contention that the parking issues

raised in the FOP’s proposal are an inherent component of its

managerial authority.

First, the University argues that its parking division is legislatively

required to be self-funding. Thus, to pay for large-scale construction

of parking lots and structures, the University generally sells long-term

bonds to investors. Parking fees are then used to provide a consistent

revenue stream to finance lot maintenance and to service the bond

debt.

The University’s parking plan is integrated into its “campus master

plan” that identifies long-term needs for new academic services and

buildings. Historically, the University has located new academic

buildings on parking lots, then replaced the lost surface parking with

parking structures. The University asserts that the FOP proposals

relating to the cost and location of parking impact its ability to finance

parking maintenance and construction and, ultimately, to construct

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new academic buildings on the site of former parking lots. Therefore,

the University claims that parking issues affect its inherent managerial

control by indirectly altering its ability to provide for the future needs

of its academic services.

The University argues that the parking proposals also implicate its

essential academic functions by impacting student services. It

maintains that parking is a critical student service because it provides

access to academic services much the same way running water and

electricity provide for a student’s well-being during study sessions.

Therefore, the University concludes that any proposal seeking to

reduce parking fees necessarily infringes on the core of its managerial

authority.

We are not persuaded by the University’s arguments. Section 4 of

the Act states that “[e]mployers shall not be required to bargain over

matters of inherent managerial policy, which shall include such areas

of discretion or policy as the functions of the employer, standards of

services, its overall budget, the organizational structure and selection

of new employees, examination techniques and direction of

employees.” (Emphasis added.) 5 ILCS 315/4 (West 2000). We note

that the Educational Act contains a nearly identical provision. 115

ILCS 5/4 (West 2000) (recognizing that “[e]mployers shall not be

required to bargain over matters of inherent managerial policy, which

shall include such areas of discretion or policy as the functions of the

employer, standards of services, its overall budget, the organizational

structure and selection of new employees and direction of

employees”).

While the statutory list is not exhaustive, it establishes the

characteristics of managerial rights that are not subject to mandatory

bargaining. Although the University attempts to link the financial

consequences of making changes in its parking fees to its overall

budget, this connection must fail. According to the University’s own

argument, the parking division is required to be completely self-

funding. If so, then funding options for the parking division cannot

affect the University’s overall budget because other funds in the

general budget could not be used to supplement the parking division

finances.

In addition, the University argues that its inherent managerial

rights are infringed because financing additional parking structures to

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replace surface parking lots used to site new academic buildings is

dependent on a reliable stream of revenue from parking fees. Thus, it

contends that the construction of new academic buildings depends on

the ability of the parking division to finance, maintain, and operate

new parking facilities. We reject this argument.

The University’s attempt to bootstrap its overall budgetary

considerations to the independently financed parking division budget

must also fail. Its core management authority is implicated only if the

final collective-bargaining agreement does not provide for sufficient

parking revenue to sustain the parking division’s ongoing and future

financial obligations. Not only is that argument purely speculative, but

it also misses the crux of the inquiry in step two of the Central City

test. The question is not how core managerial rights may be indirectly

affected under some conceivable outcome of the bargaining process.

That question assumes that the proposal under consideration impacts

the employer’s core entrepreneurial control and is properly examined

in Central City’s third step balancing test. Step two of the test

addresses only whether or not the issues raised in the proposal actually

affect inherent managerial authority.

In addition, the ILRB specifically rejected the University’s

assertion that parking fees were a matter of inherent managerial

authority because bargaining on fees could destabilize its projected

revenue stream for parking projects. As the ILRB explained, the

connection between parking fees and the issuance of revenue bonds

to fund parking projects does not turn the fee issue into a matter of

inherent managerial authority. Rather, that connection is relevant to

the balancing of interests that takes place in step three of the Central

City test. That step is not reached, however, unless the proposal

impinges the employer’s inherent managerial authority, the question

currently under examination.

As for the University’s argument that parking issues indirectly

affect essential academic functions by impacting students’ access, we

find the rationale in Ford Motor Co. instructive. In Ford Motor Co.,

the Court explicitly recognized that the employer was not in the

business of selling food to employees, concluding that the incidental

act of setting prices on food sold in the manufacturing plant was

outside the managerial decisions that lie at the core of the employer’s

entrepreneurial control. Ford Motor Co., 441 U.S. at 498, 60 L. Ed.

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2d at 429, 99 S. Ct. at 1850. Here, the University itself deems its

parking division to serve an “auxiliary” function. While student

parking is an appropriate consideration for the University, that does

not necessitate it being deemed an integral part of inherent managerial

authority. Indeed, the IELRB determined that parking fees were not

a matter of inherent managerial authority in Southern Illinois

University Edwardsville Professional Staff Ass’n, 15 Pub. Employee

Rep. (Ill.) par. 1063 (IELRB September 22, 1998), aff’d, 306 Ill.

App. 3d 1189 (1999) (unpublished order under Supreme Court Rule

23).

The University argues that this approach is overly restrictive and

would not recognize a land-use proposal’s infringement on

management rights if the employer had no immediate plan for the land.

This argument fails to address the relevant issues here. The FOP’s

proposal merely discussed the amount and allocation of the costs of

parking “reasonably close” to work. It did not attempt to control or

demand access to specific parking lots or limit the University’s ability

to later convert those locations to the site of new academic facilities.

The University’s contention is far too speculative to require a finding

that the FOP’s proposal infringed on its core entrepreneurial control.

Looking at the record in its entirety, we cannot say that we are

“ ‘left with the definite and firm conviction’ ” that the ILRB erred by

finding the FOP parking proposal did not concern matters that affect

the University’s inherent managerial rights. See AFM Messenger

Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380,

395 (2001), quoting United States v. United States Gypsum Co. 333

U.S. 364, 395, 92 L. Ed. 2d 746, 766, 68 S. Ct. 525, 542 (1948). The

appellate court erred in reversing the ILRB’s analysis on step two of

the Central City test and proceeding to step three of that test. The

FOP’s parking proposal is subject to mandatory bargaining.

In the SEIU case, the union did not raise the second step of the

test in the appellate court. We note, however, that the applicable law

is identical and the relevant facts are virtually indistinguishable from

the FOP case. The FOP’s proposal states that: “[t]he Employer shall

provide bargaining unit members with a parking space for their

personal vehicles while on duty in a location reasonably close to their

assignment or work, or alternatively, reimburse them for the cost of

obtaining same.” The SEIU’s proposal specifies fees for spaces in

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parking lots “close in proximity to [union members’] work stations,”

with those fees varying according to the desired time of day and type

of parking.

Both proposals address employees’ access to appropriate parking

and the cost to employees and, thus, effectively address the same

fundamental parking issues. We note that although the two proposals

suggest differing starting points for negotiations, neither demands that

the University provide guaranteed employee parking spaces at

immutable locations on campus. Given the identical subject matter of

the FOP and SEIU parking proposals, the effect of each proposal on

the University’s inherent managerial authority logically must be the

same.

We also note that step two of the Central City test examines

whether a union proposal addresses an issue “of inherent managerial

authority.” (Emphasis added.) Central City, 149 Ill. 2d at 523. The

scope of that authority is intrinsic to the employer and is independent

of the identity of the union offering the proposal. The intrinsic nature

of that authority precludes this court from proceeding to step three in

the SEIU case when we have already held that the FOP’s parking

proposal on the same subject matter does not implicate that same

employer’s inherent managerial authority.

Moreover, application of the balancing test in step three hinges on

a finding in step two that the union proposal affects the scope of the

employer’s inherent managerial authority. Central City, 149 Ill. 2d at

523 (“If the answer to the second question is no, then the analysis

stops and the matter is a mandatory subject of bargaining”). Indeed,

some impact on the employer’s inherent managerial authority is an

integral part of step three because that step balances the burdens

bargaining imposes on managerial authority against the benefits of

bargaining on the decisionmaking process. Central City, 149 Ill. 2d at

523. Without an affirmative finding at step two, there is simply no

legal basis for a step three analysis. The analytical structure of the

Central City test compels us to conclude our analysis in the SEIU

case at step two.

More generally, the interests of consistent jurisprudence also

require that we conclude the analysis in the SEIU case with the

determination that the union’s proposal does not affect the

University’s inherent managerial rights and, thus, is a subject of

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mandatory bargaining. See People v. Bolden, 197 Ill. 2d 166, 178

(2001). Therefore, we need not, and do not, address the arguments of

the SEIU and the IELRB on the appellate court’s review of the

balancing test enumerated in step three of the Central City test.

III. CONCLUSION

We hold that the appellate court erred by overturning the Boards’

decisions. The unions’ parking proposals involved terms and

conditions of the workers’ employment and did not affect the

University’s inherent managerial rights. The proposals are subject to

mandatory collective bargaining under the Central City test.

Accordingly, we reverse the judgments of the appellate court.

Appellate court judgments reversed.

JUSTICE GARMAN, dissenting:

The majority characterizes its decision as a consideration of

whether the appellate court properly applied the standard of review in

overturning the decisions of the Illinois Educational Labor Relations

Board (IELRB) and the Illinois Labor Relations Board (ILRB).

Ultimately, the majority concludes that the appellate court improperly

applied the standard of review in the case involving the ILRB. I

believe the majority’s decision commits the very same mistake it seeks

to remedy. Specifically, I believe the majority decision incorrectly

applies the standard of review in its consideration of the second step

of the Central City test in the IELRB case. Central City Education

Ass’n v. Illinois Educational Labor Relations Board, 149 Ill. 2d 496

(1992). This failure leads the majority to show no deference to the

IELRB and inappropriately preclude analysis of step three of the

Central City test. It also improperly penalizes the University for this

court’s choice to consolidate these cases. For these reasons, I

respectfully dissent.

As the majority adequately describes, this court adopted a three-

part test for determining whether an issue is subject to mandatory

bargaining under the Educational Act in Central City, and explained

that “the application of the test requires a detailed factual analysis that

the IELRB is particularly well suited to examine.” Central City, 149

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Ill. 2d at 524. Moreover, the majority notes that this court has applied

the Central City test in cases arising under the Illinois Public Labor

Relations Act, at issue in the ILRB case. City of Belvidere v. Illinois

State Labor Relations Board, 181 Ill. 2d 191, 206 (1998). That being

said, the majority explains that it will examine each of the consolidated

cases under this test.

Before undertaking its analysis, the majority enunciates the

standard of review. As the majority notes, the clearly erroneous

standard of review is proper when reviewing a decision of the IELRB

or the ILRB because the decision represents a mixed question of fact

and law. City of Belvidere, 181 Ill. 2d at 205. Under this standard, an

agency decision will be reversed only if the reviewing court, based on

the entirety of the record, is “ ‘left with the definite and firm

conviction that a mistake has been committed.’ ” AFM Messenger

Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380,

395 (2001), quoting United States v. United States Gypsum Co., 333

U.S. 364, 395, 92 L. Ed. 746, 766, 68 S. Ct. 525, 542 (1948).

Necessary to my analysis is a brief recitation of the Boards’

dissimilar applications of the Central City test, as well as the appellate

decisions that followed. Reviewing the findings of fact and the

recommended decision of an administrative law judge, the IELRB

found that parking was a term and condition of employment, but also

believed that parking-related issues were within the purview of the

University’s inherent managerial authority. A majority of the IELRB

thus utilized the third step of the Central City test, found that the

benefits of bargaining the issues of parking and parking fees

outweighed the burden it imposed on the University’s inherent

managerial authority, and therefore upheld the ALJ’s finding that the

University had engaged in unfair labor practices. The University

appealed, and a majority of the appellate court reversed, finding that

the IELRB’s decision that the benefits of bargaining outweighed the

burdens was clearly erroneous. The appellate court did not consider

whether parking fees were a matter of the University’s inherent

managerial authority because that issue was not raised by the parties.

Reviewing the findings of fact and the recommended decision of

a different administrative law judge, the ILRB found that parking was

a term and condition of employment and that the FOP’s parking

proposal did not affect the University’s inherent managerial authority.

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Like the IELRB, then, the ILRB found that the University’s refusal to

bargain with the FOP over parking constituted an unfair labor

practice. Again, the University appealed and a majority of the

appellate court reversed, finding that it was clearly erroneous to hold

that parking and parking fees were not part of the University’s

inherent managerial authority. The appellate majority went on to find

that the significant burdens that bargaining placed on the University

outweighed its benefits.

Beginning its analysis of Central City, the majority concludes that

the appellate court panels properly found that the Boards’ decisions

that the unions’ parking proposals involved “wages, hours or terms

and conditions of employment” were not clearly erroneous. I agree

with the majority on this point. Following this, the majority analyzes

the second step of the Central City test. It is with this analysis that I

disagree.

The majority first considers whether the parking issues raised in

the FOP’s case affect a matter of inherent managerial authority. After

discussing and disagreeing with the University’s arguments, the

majority revisits the standard of review in conjunction with the

findings of the appellate court. The majority states that “[l]ooking at

the record in its entirety, we cannot say that we are “ ‘left with the

definite and firm conviction” ’ that the ILRB erred by finding the FOP

parking proposal did not concern matters that affect the University’s

inherent managerial rights.” Slip op. at 14. Due to that finding, the

majority holds that “the appellate court erred in reversing the ILRB’s

analysis on step two of the Central City test and proceeding to step

three of that test.” Slip op. at 14. Evidently, the majority relied on and

was, at least in part, guided by the application of the clearly erroneous

standard of review in its holding concerning the ILRB’s findings.

In the very next breath, however, the majority completely ignores

the clearly erroneous standard in turning from the ILRB case to the

IELRB case. Stating that the SEIU did not raise the second step of the

Central City test in the appellate court, and noting that the relevant

facts and law are virtually indistinguishable from the FOP case, the

majority concludes the analysis in the SEIU case “with the

determination that the union’s proposal does not affect the

University’s inherent managerial rights, and, thus, is a subject of

mandatory bargaining.” Slip op. at 14.

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The majority fails to adequately support this holding, though,

utilizing only a discussion of waiver and pointing to “the interests of

consistent jurisprudence.” Slip op. at 14. It is true that the SEIU and

the IELRB did not raise the second step of the Central City test

before this court. Instead, they focused their arguments on step three,

a balancing of the benefits of bargaining versus the burdens imposed.

This fact does not support the majority’s conclusion, however.

In People v. Bolden, 197 Ill. 2d 166, 178 (2001), this court noted

that the forfeiture rule is a limitation on the parties and not on the

jurisdiction of the courts and stated that it was going to address an

issue raised for the first time on appeal “[r]ecognizing both the

importance of this issue and our obligation to maintain a sound and

consistent body of case law.” Bolden, 197 Ill. 2d at 178. The majority

in this case utilizes that language in support of its decision to address

the second step of the Central City test with regards to the IELRB

case despite the fact that it was not raised in the appellate court.

This discussion is irrelevant, though, because the forfeiture rule

has no bearing on the application of the clearly erroneous standard to

the ruling of the IELRB. It is true that this court has the authority to

disregard forfeiture in the IELRB case and address the second step of

the Central City test. However, in addressing step two in the IELRB

case, the majority is suggesting that, as a matter of law, it is incorrect

to find that parking issues fall within the inherent managerial authority

of the University. In other words, the majority is holding that it could

never be correct under any circumstance to find that parking issues fall

within the University’s inherent managerial authority. This is the only

possible interpretation of the majority’s analysis of the second step in

the IELRB case, because the IELRB found that parking did fall within

the University’s inherent managerial authority. In reversing that

finding, the majority makes no reference to the clearly erroneous

standard.

Unfortunately, the majority offers insufficient support for its

holding that it was incorrect as a matter of law–and, consequently,

clearly erroneous–for the IELRB, or any other body, to conclude that

parking is part of the University’s inherent managerial authority. If the

majority believes its discussion of the FOP case supports its holding

in the IELRB case, it needs to explicitly say so and fully analyze why

that conclusion is merited. Without doing so, the majority shows little

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deference to the overall findings of the IELRB, fails to fully address

that case, and penalizes the University simply because the SEIU

appeal was consolidated with that of the FOP.

In the end, the majority’s analysis of the IELRB case eviscerates

the clearly erroneous standard of any real meaning and even calls into

question its use. On the one hand, the majority utilizes the standard as

critical support for its decision, finding that it was not clearly

erroneous for the ILRB to find that parking was not part of the

University’s inherent managerial authority. On the other hand, the

majority completely ignores the standard in the SEIU case where the

IELRB held that parking was part of the University’s inherent

managerial authority but the benefits of bargaining over parking

outweighed the burdens. If both the ILRB and the IELRB are entitled

to equal deference under the clearly erroneous standard, both being

uniquely qualified for the decisions with which they are tasked, why

does the majority utilize the clearly erroneous standard in reviewing

one but not the other?

That one decision was not clearly erroneous does not necessarily

make the opposite clearly erroneous. By contrast, that one decision is

clearly erroneous necessarily makes the opposite conclusion not

clearly erroneous. The majority does not address this point and its

reference to forfeiture does little to remedy the oversight. Because of

this, the majority fails to properly apply the standard of review and

thereby fails to adequately support its overall decision.

The above described failure allows the majority to end its analysis

without addressing step three of the Central City test, weighing the

benefits and burdens of bargaining over a particular matter. It may be

that it is not clearly erroneous to find, as the IELRB did, that parking

matters are part of the University’s inherent managerial authority. In

such a situation, analysis under step three would be warranted.

In misapplying the standard of review at step two of the Central

City test, the majority incorrectly forecloses any analysis of the third

step of the test. In failing to undergo any analysis under step three of

the Central City test, the majority neglects the University’s arguments

concerning that step, fails to show any deference to the IELRB, and

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penalizes the University for this court’s choice to consolidate the FOP

and SEIU cases. For these reasons, I respectfully dissent.

JUSTICE KARMEIER joins in this dissent.

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