County of Cook v. Lic. Pract. Nurses

THIRD DIVISION

September 30, 1996

No. 1-94-0602

THE COUNTY OF COOK, d/b/a ) Petition for Review

Cermak Health Services, ) of an Order of the

) Illinois Local Labor

Petitioner, ) Relations Board

)

v. ) No. L-CA-92-116

)

LICENSED PRACTICAL NURSES )

ASSOCIATION OF ILLINOIS, )

DIVISION I, and ILLINOIS LOCAL )

LABOR RELATIONS BOARD, )

)

Respondents. )

JUSTICE GREIMAN delivered the opinion of the court:

Petitioner County of Cook, d/b/a Cermak Health Services

(County), appeals the administrative decision of respondent

Illinois Local Labor Relations Board (Board) that found the

County had violated the Illinois Public Labor Relations Act (Act)

(5 ILCS 315/1 et seq. (West 1992)) by (1) unilaterally

implementing post-employment drug testing without collective

bargaining and (2) failing to sign the 1990-93 collective

bargaining agreement until seven months after the parties had

come to agreement. For all the reasons that follow, we affirm

the Board's decision.

On March 26, 1992, respondent Licensed Practical Nurses

Association of Illinois, Division I (LPNAI), filed an unfair

labor practice charge with the Board alleging that the County

engaged in unfair labor practices (1) by requiring two members of

LPNAI to submit to a drug test before being allowed to return to

work from medical leaves of absence and (2) by failing to execute

the new collective bargaining agreement.

As to the first charge, LPNAI alleged that on November 19,

1991, Bertha Farmer, an employee at Cermak Health Services, "was

required to submit to a drug screen before she was allowed to

return to work from a medical leave of absence." Similarly, on

January 6, 1992, Barbara Davis, another employee at Cermak Health

Services, was also required to submit to a drug test before

returning to work from a medical leave of absence. Neither

employee had any history of drug abuse or disciplinary problems

associated with substance abuse.

The charge also stated that during the fall of 1991, the

County and LPNAI entered negotiations for a new collective

bargaining agreement. During the course of negotiations, the

County proposed to include the following language: "The County

reserves the right to introduce pre-employment and post-

employment drug testing. Details of any such program shall be

discussed with the Union." The County, however, withdrew the

proposal on November 4, 1991, i.e., prior to the drug tests

imposed upon Bertha Farmer (November 19, 1991) and Barbara Davis

(January 6, 1992).

As to the second charge, LPNAI stated that a tentative

agreement was reached between the County and LPNAI on November

22, 1991. After the County drafted and sent to LPNAI a

memorandum of agreement, LPNAI signed the memorandum on December

20, 1991. LPNAI made several requests of the County to execute

the memorandum, but at the time of the filing of the complaint

(March 26, 1992), the County had failed to execute the written

agreement that had been negotiated and agreed upon by the

parties. The record reveals that the County did not sign the

agreement until July 7, 1992.

By its charge, LPNAI asked that the County be ordered to

cease and desist the drug testing of bargaining unit members

without cause and to execute the memorandum of agreement.

In its charge, LPNAI alleged unfair labor practices under

subsections 10(a)(1)and 10(a)(4) of the Act (5 ILCS 315/10(a)(1),

(a)(4) (West 1992)), which provide:

"(a) It shall be an unfair labor practice for an

employer or its agents:

(1) to interfere with, restrain or coerce public

employees in the exercise of the rights guaranteed

in this Act or to dominate or interfere with the

formation, existence or administration of any

labor organization or contribute financial or

other support to it; provided, an employer shall

not be prohibited from permitting employees to

confer with him during working hours without loss

of time or pay;

***

(4) to refuse to bargain collectively in good

faith with a labor organization which is the

exclusive representative of public employees in an

appropriate unit, including, but not limited to,

the discussing of grievances with the exclusive

representative."

Following an investigation, the Board issued a complaint for

hearing on January 8, 1993. The Board recited the allegations

made by LPNAI in its unfair labor practice charge, notified the

County to respond and announced that a hearing would be

conducted. In addition to the subsections on which LPNAI relied,

the Board, in its complaint for hearing, alleged that the County

violated subsection 10(a)(7) of the Act for its delay in signing

the collective bargaining agreement. Subsection 10(a)(7)

provides that it is an unfair labor practice for an employer

"(7) to refuse to reduce a collective bargaining

agreement to writing or to refuse to sign such

agreement." 5 ILCS 315/10(a)(7) (West 1992).

On May 11, 1993, a hearing was held before Sharon Wells, an

administrative law judge (ALJ). Three witnesses testified on

behalf of LPNAI: Sally Stix, counsel for LPNAI; Bertha Farmer and

Barbara Davis. The County presented three of its employees as

witnesses: Steven Klem, the assistant director of personnel and

later the deputy chief of the bureau of human resources; Helen

Maignon, a laboratory technician who performs drug screens; and

John Kalchbrenner, the deputy chief of human resources.

Both Bertha Farmer and Barbara Davis were employed at Cermak

Health Services, which is a health facility for detainees at the

Cook County jail and is located in a building within the County's

Department of Corrections complex. When employees of Cermak

Health Services enter the building, they must pass through

security and are searched for contraband and drugs.

Farmer was first employed at Cermak Health Services in

December 1981 and was required to submit a urine sample when she

was hired. After an extended medical leave from October until

mid-November 1991, Farmer went to the County building to be

processed to return to work in accordance with the policy for

employees who had been off work over five days. Prior to

resuming her job, Farmer was required to provide a urine specimen

in the presence of a security officer for purposes of drug

testing. No drug testing was required when Farmer returned to

work after four previous extended medical leaves of absence from

work in 1985 (July to December), 1986 (September to November),

1988 (June to July), and 1989 (August to December). Farmer

testified that she never had a substance abuse problem and had

never been in a substance abuse program. Moreover, Farmer had

never been accused of having a substance abuse problem and had

never been disciplined for having a substance abuse problem.

After working at the University of Illinois Hospital for 22

years, Barbara Davis became employed at Cermak Health Services in

March 1990. From October 2, 1991, until January 6, 1992, Davis

was on a leave of absence due to the death of her son. Upon

returning from leave, Davis was required to provide a urine

specimen for purposes of a drug screen test. Prior to her leave

commencing in October 1991, Davis had been absent from work about

two weeks and was not required to give a urine specimen to return

to work. Davis testified that she did not have a substance abuse

problem and had never been in a substance abuse program. Davis

had never been accused of having a substance abuse problem and

had never been disciplined for having a substance abuse problem.

Sally Stix was the chief spokesperson for LPNAI in the Cook

County negotiations during the summer and fall of 1991. During

these negotiations, the County proposed the following new clause:

"Drug Testing: The County reserves the right to introduce pre-

employment and post-employment drug testing. Details of any such

program shall be discussed with the Union." The parties never

discussed the substance of the proposal and the County withdrew

it on November 4, 1991.

On November 22, 1991, the final negotiating session, Farmer,

a member of the negotiating team for LPNAI, mentioned to Stix

that she had been required to submit a urine sample to return to

work. Stix, in turn, asked one of the County's negotiators, John

Kalchbrenner, about the drug test. Kalchbrenner said he did not

know and directed Stix to Steve Klem, who was not a member of the

negotiating team. Klem was the County's assistant director of

personnel at that time and later became the deputy chief of the

bureau of human resources.

Stix testified that during the final negotiations on

November 22, 1991, she did not do anything else about Farmer's

incident because the County had already withdrawn its drug

testing proposal. Further, she intended to investigate whether

drug testing was being done contrary to the collective bargaining

agreement. Negotiations were concluding and she did not wish to

impede finalizing the agreement, which was already a year past

the expiration of the last agreement, before she had done an

investigation. Later, Stix requested and received from Klem a

copy of the County's policy regarding drug testing.

On behalf of the County, Steven Klem testified that in 1986

or 1987 he helped to write the drug testing policy enunciated in

a three-page written document entitled "Procedures For Using EMIT

Drug Detection System To Test Public Sector Job Applicants And

Employees For Drug Use In Cook County." The policy addressed

preemployment drug testing of job applicants and post-employment

testing only based on probable cause. The policy expressly

provides:

"B. Urine testing of employees will be conducted only

under the following circumstances:

* When an employee has been identified by

observation, absenteeism, health problems,

accidents, or by other means, as having job

performance problems that related to substance

abuse.

* As part of a routine testing program of an

employee returning to work with a history of

illicit drug use or legal drug abuse. Such

testing will not be used for the purpose of

harassing or intimidating the employee.

* When an employee is found in possession of

illicit drugs.

* As part of a routine urine testing program

instituted as a result of prior disciplinary

proceedings against the employee, related to the

use or abuse of drugs."

In his testimony, Klem described the above policy regarding

employees as "probable cause and reasonable suspicion type

testing." Klem further testified that in mid-1990, a change in

policy was formulated for employees who had been absent for more

than 30 days for any cause. The "policy determination was made

by the chief elected official and the chief administrative

officer in the County of Cook at that time." The policy

requiring the drug testing of employees returning to work after

taking a leave more than 30 days was never written any place and

no notification of its implementation was provided to any labor

organizations.

Helene Maignon, a laboratory technician employed by the

County, has been collecting and testing the urine specimens for

drug testing since 1987 pursuant to the County's written policy

as to job applicants and employees where sufficient cause is

established to test them. Sometime in 1989 or 1990 or 1991, the

drug testing policy changed to include employees who went off the

payroll for 30 days.

John Kalchbrenner has been employed by the County as deputy

chief of human resources since December 1, 1992. Prior to his

current position, Kalchbrenner performed virtually the same

duties as the director of the position classification agency.

Kalchbrenner negotiates with many labor unions. During 1991,

Kalchbrenner negotiated contracts with about 24 unions for the

1990-93 time period. Kalchbrenner and two members of his staff

worked on preparing all of the contracts. The agreement would be

drafted and then the draft would be submitted to the various

unions for review. Once the final draft was approved, signed and

returned from the union, the contract would be submitted to the

Board of Commissioners for their approval. The Board met twice a

month, i.e., the first and third Monday of each month. After

securing the Board's approval, the contract then would go to

president of the Cook County Board for his signature.

Kalchbrenner estimated that the process took five or six months

into the year due to the volume and continuing negotiations with

other unions.

The collective bargaining agreement between the County and

LPNAI commenced December 1, 1987, and expired November 30, 1990.

The 1987-90 agreement remained in effect pending negotiations for

a successor agreement and contained no language concerning post-

employment drug testing. The term of the successor agreement ran

from December 1, 1990, to November 30, 1993.

On September 8, 1993, the ALJ issued her recommended

decision and order. The ALJ found that the County had violated

the Act as alleged and specifically issued the following

conclusions of law:

"1. [The County] unilaterally implemented post-

employment drug testing of members of the Unit,

returning from leaves of greater than 30 days duration,

without bargaining with [LPNAI] over the decision and

the impact of the decision, in violation of Section[s]

10(a)(4) and [(a)](1) of the Act.

2. [The County] refused to sign the collective

bargaining agreement by failing to execute it for over

seven months in violation of Section[s] 10(a)(7),

10(a)(4), and 10(a)(1) of the Act."

On October 27, 1993, the County filed with the Board exceptions

to the ALJ's recommended decision and order.

On January 19, 1994, the Board issued its decision and order

that upheld the ALJ's decision with one exception. The Board

found that the County did not violate section 10(a)(7) of the Act

because the County did not refuse to sign the collective

bargaining agreement. Instead, the seven-month delay in signing

the agreement constituted bargaining in bad faith and violated

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

On appeal the County first asserts that the drug testing

program is a matter of inherent managerial policy and, therefore,

is not a subject of mandatory collective bargaining under the

Act. In the alternative, the County contends that if this court

should find that the drug testing is a subject of mandatory

bargaining, the County's interest in drug testing outweighs

LPNAI's interest in bargaining. The County argues that drug

testing of employees who have been absent more than 30 days is

necessary because the County has not had the opportunity to

observe them for such length of time and has a legitimate

interest in knowing whether these employees have changed their

lifestyle in a manner that could breach the security and safety

of the jail. The County observes that LPNAI members come into

direct contact with inmates on a daily basis.

Judicial review of the Board's decision is governed by the

Administrative Review Law. 5 ILCS 315/9(i) (West 1992).

Although our review extends to all questions of law and fact

presented by the entire record before the court, the findings and

conclusions of the Board on questions of fact must considered to

be prima facie true and correct. 735 ILCS 5/3-110 (West 1992).

Our duty is not to reweigh the evidence but rather our function

is to ascertain whether or not the findings and conclusion are

against the manifest weight of the evidence. Iwanski v.

Streamwood Police Pension Board, 232 Ill. App. 3d 180, 184

(1992); Chief Judge of the Circuit Court v. American Federation

of State, County & Municipal Employees, Council 31, 229 Ill. App.

3d 180, 185 (1992).

When the issue on appeal is purely legal, such as statutory

construction, the interpretation given by the administrative

agency should receive deference because it flows from its

experience, but our review is de novo. Thomas M. Madden & Co. v.

Department of Revenue, 272 Ill. App. 3d 212, 215 (1995).

Notwithstanding our independent review, we accord substantial

weight and deference to the interpretation of a statute by the

agency charged with the administration and enforcement of that

statute. Central City Education Ass'n, IEA/NEA v. Illinois

Educational Labor Relations Board, 149 Ill. 2d 496, 510 (1992);

City of Decatur v. American Federation of State, County &

Municipal Employees, Local 268, 122 Ill. 2d 353, 361 (1988);

County of Cook v. Illinois Local Labor Relations Board, 266 Ill.

App. 3d 53, 57 (1994). Accordingly, an agency's interpretation

of a statute should only be overturned if it is clearly

erroneous. O'Hare-Midway Limousine Service, Inc. v. Baker, 232

Ill. App. 3d 108, 111 (1992).

Sections 7 and 4 of the Act govern the issue of mandatory

bargaining. Section 7 places a duty on a public employer "to

bargain collectively" and "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 1992).

Section 4 provides that an employer "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." 5 ILCS 315/4

(West 1992). Section 4 further provides that an employer must

"bargain collectively with regard to policy matters directly

affecting wages, hours and terms and conditions of employment as

well as the impact." 5 ILCS 315/4 (West 1992).

Where an issue affects both inherent managerial policy and

conditions of employment, a hybrid situation occurs and a

balancing test must be used to weigh "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; see American Federation of

State, County & Municipal Employees v. Illinois State Labor

Relations Board, 274 Ill. App. 3d 327 (1995) (applying the

balancing test, the court held that a decision to lay off

employees was a mandatory subject of bargaining); Village of

Franklin Park v. Illinois State Labor Relations Board, 265 Ill.

App. 3d 997 (1994) (mandatory subjects of bargaining included

certain procedures and criteria for promotions).

To determine whether or not a given issue is a mandatory

subject of bargaining, the Illinois Supreme Court formulated a

three-part test in Central City:

"The first part of the test requires a

determination of whether the matter is one of

wages, hours and terms and conditions of

employment. This is a question that the

IELRB is uniquely qualified to answer, given

its experience and understanding of

bargaining in education labor relations. If

the answer to this question is no, the

inquiry ends and the employer is under no

duty to bargain.

If the answer to the first question is yes, then

the second question is asked: Is the matter

also one of inherent managerial authority?

If the answer to the second question is no,

then the analysis stops and the matter is a

mandatory subject of bargaining. If the

answer is yes, then the hybrid situation

discussed in section 4 exists: the matter is

within the inherent managerial authority of

the employer and it also affects wages, hours

and terms and conditions of employment.

At this point in the analysis, the IELRB should

balance the benefits that bargaining will

have on the decisionmaking process with the

burdens that bargaining imposes on the

employer's authority. Which issues are

mandatory, and which are not, will be very

fact-specific questions, which the IELRB is

eminently qualified to resolve." Central

City, 149 Ill. 2d at 523.

As to the first part of the Central City test, the County

contends in its brief that its "drug testing policy does not

involve matters relating to employment under section 7 of the

Act." Such contention defies the record and logic. The

undisputed evidence reveals that unless an employee returning to

work from a leave of absence submits to a drug test, the employee

may not return to work and could be subject to discipline or

termination. It is difficult to imagine a more obvious condition

of employment.

Moreover, drug testing in employment has been recognized as

a condition of employment by the National Labor Relations Board.

In state labor cases, the rulings of the National Labor Relations

Board (NLRB) are considered persuasive authority for similar

provisions in the state Act. American Federation of State,

County & Municipal Employees v. Illinois State Labor Relations

Board, 190 Ill. App. 3d 259, 264 (1989). The Office of General

Counsel for the National Labor Relations Board issued a

memorandum to address all cases involving drug and alcohol

testing and specifically advised as follows:

"In response to a growing national concern over

drug abuse and drugs in the workplace, some

employers have decided to implement drug

tests for their employees. In many drug

testing programs, employees who refuse to

submit to a test may be subject to

discipline, including discharge, while

employees who submit to the test and have

positive results may be suspended and/or

required to participate in rehabilitation

programs, forced to accept a change in job

duties, or subjected to discipline up to and

including discharge. Thus, mandatory drug

testing literally is a `condition of

employment.'" Guideline Memorandum

Concerning Drug or Alcohol Testing of

Employees, GC-87-5, National Labor Relations

Board, Office of General Counsel (September

8, 1987).

Thereafter, the NLRB has found that the unilateral implementation

by the employer of drug testing certain employees constituted

unfair labor practices. E.g., Kysor/Cadillac, 307 N.L.R.B. 598,

603 (1992) ("[b]y unilaterally implementing a policy and practice

of requiring certain unit employees to undergo drug testing as a

condition of employment, without prior notice to or affording the

Union an opportunity to bargain concerning such practice, and by

discharging [two employees] pursuant to such policy and practice,

the Company has engaged, and is engaging in unfair labor

practices"); Coastal Chemical Co., 304 N.L.R.B. 556, 568 (1991)

(by "unilaterally instituting and implementing a requirement that

employees who require treatment for job related injuries must

undergo a drug test the Company refused to bargain collectively

with the Union").

The second part of the Central City test asks whether the

matter is also one of inherent managerial authority. Drug

testing policies can fall within the parameters of inherent

managerial authority as evidenced in the present case by certain

drug testing policies that are not in dispute. LPNAI has not

objected to the County's policies that require the drug testing

of job applicants and employees where there is probable cause or

a reasonable suspicion that the employee is using or abusing

drugs. Moreover, the Board observed that Cermak Health Services

is a part of the Cook County jail and recognized that the County

has the inherent managerial authority to institute rules and

regulations, such as drug testing of employees, to maintain

security within the jail by preventing drug trafficking and its

attendant problems.

We believe that both the Board and the ALJ properly advanced

to the third part of the Central City test to balance the

competing interests of the LPNAI members and the County to

determine whether the particular drug testing at issue here

should be subject to mandatory bargaining. Furthermore, we find

persuasive the Board's prior decision in City of Chicago (AFSCME

Council 31), 9 Pub. Employee Rep. (Ill.) par. 3001, Nos. L--CA--

91--088, L--CA--92--058 (November 24, 1992) which held that a

random drug testing policy unilaterally imposed by the City of

Chicago for certain civilian employees violated the Act and the

decision and the impact of the random drug testing policy are

mandatory subjects of bargaining. The dispute in City of Chicago

arose when the city unilaterally instituted random drug testing

of certain civilian employees of the Chicago police department

who were employed in the police department's crime laboratory and

evidence and recovered property section, where they performed

various duties in connection with the testing and storage of

criminal evidence, including narcotics. The city asserted that

the drug testing was necessary due to the employees' access to

drug samples in the course of their duties, which posed a threat

to the security and integrity of evidence essential to the

successful prosecution of crimes.

The Board acknowledged that the preservation of the

integrity of narcotics evidence is critical to the law

enforcement mission. The Board, however, found that no evidence

credibly linked the city's security concerns to its decision to

impose random drug testing on the employees. The Board observed

that the city made virtually no showing of drug use among such

employees, much less breaches of security or job performance.

Not one instance was presented where such employee had been

accused of tampering with or removing drug samples. In addition,

the Board found that there was no indication that less intrusive

measures, including suspicion-based drug testing, were inadequate

to satisfy the city's concerns.

Similarly, in the present case, we agree with the Board's

findings that the County "failed to establish any link between

its policy of screening for drug use all licensed practical

nurses returning to work after leaves of more than 30 days, and

the security needs of the jail." In addition, there was no

evidence that nurses returning from leave of more than 30 days

ever tested positive, were more prone to the use of illegal

drugs, or exhibited security breaches or risks. Further, as in

City of Chicago, the County offered no explanation as to why the

suspicion-based drug testing, to which LPNAI acquiesced, did not

fulfill the needs of the County's mission to prevent drugs from

entering the facility.

The County next asserts that the delay in the ratification

of the agreement did not violate the Act because the County

diligently placed the agreement on the County Board's agenda and

LPNAI suffered no harm and no loss of benefits.

The Board held that the County's delay in executing the

1990-93 collective bargaining agreement was in bad faith and

thus, violated sections 10(a)(4) and 10(a)(1) of the Act because

the delay was extreme, no extenuating circumstances existed and

the County failed to contemporaneously explain the delay to

LPNAI. The Board found that the County's delay in executing the

agreement "caused confusion and uncertainty in the bargaining

unit."

In the present case, the County and LPNAI agreed to the

terms of the collective bargaining agreement on November 22,

1991. The County then drafted the agreement and sent it to

LPNAI, which signed and returned the agreement on December 20,

1991. On several subsequent occasions, LPNAI requested the

County to execute the agreement. In March 1992, LPNAI filed its

charge against the County and expressly alleged an unfair labor

practice because the County had still not signed the agreement.

Notwithstanding LPNAI's requests and the charge filed by LPNAI in

March, the County did not sign the agreement until July 7, 1992,

approximately seven months after the terms of the agreement had

been decided and LPNAI signed the agreement.

Minor delays accompanied by extenuating circumstances do not

constitute unfair labor practices. See Chief Judge of the

Circuit Court of Cook County, 8 Pub. Employee Rep. (Ill.) par.

2044, No. S--CA--91--63 (ISLRB September 9, 1992); Cook County

Hospital, 4 Pub. Employee Rep. (Ill.) par. 3022, No. L--CA--88--

95 (ILLRB July 14, 1988).

The Board found the delay in the present case was extreme,

unexplained at the time, and caused confusion and uncertainty in

the bargaining unit. We agree with the Board's finding.

Affirmed.

TULLY, P.J., and GALLAGHER, J., concur.