IL Department of Central Management Services v. IL Labor Relations Board

NO. 4-06-0083 Filed 5/2/07

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE STATE OF ILLINOIS, DEPARTMENT OF ) Direct Appeal from

CENTRAL MANAGEMENT SERVICES (DEPARTMENT ) Illinois Labor

OF CORRECTIONS), ) Relations Board,

Petitioner-Appellant, ) State Panel

v. )

THE STATE OF ILLINOIS, LABOR RELATIONS )

BOARD, STATE PANEL; JACKIE GALLAGHER, ) No. S-CA-03-002

MICHAEL HADE, CHARLES HERNANDEZ, REX ) S-CA-03-052

PIPER, and LETITIA TAYLOR, the Members ) S-CA-03-054

of Said Board and Panel in Their ) S-CA-03-056

Official Capacity Only; and THE ) S-CA-03-064

AMERICAN FEDERATION OF STATE, COUNTY ) S-CA-03-068

AND MUNICIPAL EMPLOYEES, COUNCIL 31, ) S-CA-03-090

Respondents-Appellees. ) S-CA-03-092

______________________________________________________________

JUSTICE COOK delivered the opinion of the court:

This case arises out of an impasse in negotiations

between petitioner, the State of Illinois Department of Central

Management Services (Department of Corrections) (hereinafter

CMS), and respondent American Federation of State, County, and

Municipal Employees, Council 31 (hereinafter AFSCME). The

negotiations involved the impact on security employees of CMS's

closure of several correctional facilities. AFSCME was the

exclusive representative of the employees at issue. Both parties

agree that the employees in question are "security employees" as

defined by the Illinois Public Labor Relations Act (Act) (5 ILCS

315/3(p) (West 2002)). Because security employees are afforded

access to certain dispute-resolution procedures under section 14

of the Act, both parties often refer to the security employees as

section 14 employees (5 ILCS 315/14 (West 2002)). This case

centers around the scope of section 14 dispute-resolution proce-

dures afforded to section 14 employees, specifically whether

section 14 authorizes "midterm interest arbitration," i.e.,

arbitration in the middle of a contract as opposed to its begin-

ning or end.

On December 21, 2005, respondent Illinois Labor Rela-

tions Board (Board) issued a decision and order finding that (1)

section 14 authorizes "interest arbitration" for disputes involv-

ing section 14 employees in "midterm" disputes and not merely in

"initial" or "successor" disputes; and (2) the collective-bar-

gaining agreement relevant to this case did not contain a waiver

of the statutory right to midterm interest arbitration for

security employees. In keeping with these findings, the Board

held that CMS violated sections 10(a)(1) and 10(a)(4) of the Act

when it refused to proceed to impasse resolution pursuant to

section 14 of the Act (5 ILCS 315/10(a)(1), (a)(4) (West 2002)).

The Board ordered CMS to cease and desist from refusing to

proceed to impasse resolution pursuant to section 14. The Board

did not allow immediate access to interest arbitration but

instead ordered the parties to design a process for the resolu-

tion of the dispute under section 14(p), with any disagreements

subject to the Board's compliance (5 ILCS 315/14(p) (West 2002)).

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CMS appeals the Board's findings. American Federation of State,

County, and Municipal Employees, Council 31, 22 Pub. Employee

Rep. (Ill.) par. 10, Nos. S-CA-03-002, S-CA-03-048, S-CA-03-052,

S-CA-03-054, S-CA-03-056, S-CA-03-064, S-CA-03-068, S-CA-03-090,

S-CA-03-092 (Illinois Labor Relations Board, State Panel, Decem-

ber 21, 2005) (hereinafter 22 Pub. Employee Rep. (Ill.) par. 10).

We affirm.

I. BACKGROUND

At all times relevant, a bargaining agreement between

CMS and AFSCME was in effect. The bargaining agreement was

extensive in nature and was part of a long-standing relationship

of bargaining agreements between the parties. The bargaining

agreement contained a general no-strike provision, which applied

to all employees, both section 14 security employees and nonsec-

tion 14 employees. In contrast, by statute, section 14 employees

are generally prohibited from striking and nonsection 14 employ-

ees generally have the right to strike. 5 ILCS 315/17 (West

2002) (general right-to-strike provision). As is required when a

bargaining agreement contains a no-strike clause, the bargaining

agreement also contained a grievance-arbitration provision, which

applied to all employees in the bargaining unit and provided for

final and binding arbitration of disputes concerning the adminis-

tration or interpretation of the bargaining agreement. See 5

ILCS 315/8 (West 2002) (bargaining agreements that contain no-

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strike clauses must also contain grievance-arbitration provi-

sions). The bargaining agreement also contained a memorandum of

understanding in its appendix, which provided that, within 60

days of the employer's announcement of a correctional-facility

closure, the parties "agree to negotiate over such matters that

may impact upon employees *** on questions of wages, hours[,] and

other conditions of employment." Accordingly, in 2002, CMS and

AFSCME entered into negotiations concerning the impact that the

closure of nine correctional facilities would have on security

employees.

The parties were unable to reach full agreement on

several points concerning the closure of the facilities. The

subjects on which the parties reached impasse included issues

relating to the filling of vacancies and transfer, recall, and

seniority rights of the affected employees. It appears that

these issues were not specifically covered by the bargaining

agreement. AFSCME requested that the parties enter into "inter-

est arbitration" to resolve the remaining issues. AFSCME thought

that it had a statutory right to interest arbitration under

section 14 of the Act, entitled "Security Employee, Peace Offi-

cer[,] and Fire Fighter Disputes," which delineates interest-

arbitration procedures of security employees (5 ILCS 315/14 (West

2002)). CMS refused to enter into interest arbitration, and

implemented its "final offer" as determined by the 2002 negotia-

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tions, including all the terms upon which the parties were unable

to agree.

In the July through October 2002 period, AFSCME filed

nine unfair-labor-practice charges against CMS, each alleging

that CMS violated sections 10(a)(1) and 10(a)(4) of the Act

because CMS refused to proceed to interest arbitration (5 ILCS

315/10(a)(1), (a)(4) (West 2002)). These sections state that an

employer commits unfair labor practice under the Act when it

restrains an employee's ability to exercise the rights guaranteed

by the Act (5 ILCS 315/10(a)(1) (West 2002)) and when it

"refuse[s] 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"

(5 ILCS 315/10(a)(4) (West 2002)). AFSCME's nine complaints were

ultimately consolidated into one. AFSCME withdrew No. 5-CA-03-

048. In June 2004, the case went before an administrative law

judge (ALJ), who found in favor of AFSCME. The ALJ ordered the

parties to proceed to "interest arbitration" under section 14.

American Federation of State, County, & Municipal Employees,

Council 31, 22 Pub. Employee Rep. (Ill.) par. 10, Nos. S-CA-03-

002, S-CA-03-052, S-CA-03-054, S-CA-03-056, S-CA-03-064, S-CA-03-

068, S-CA-03-090, S-CA-03-092 (Illinois Labor Relations Board,

State Panel, ALJ recommended decision and order, April 25, 2005).

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CMS filed exceptions, and the case then went before the

Board. Both parties stipulated that there was "no issue" as to

whether this dispute should be "deferred" to the grievance-

arbitration procedures contained in the bargaining agreement. By

this, we presume the parties meant that the existence of the

grievance-arbitration provision contained within the bargaining

agreement did not (1) require a finding that the current dispute

should be resolved through the contractual grievance-arbitration

procedures rather than the statutory procedures, or (2) preclude

the Board from addressing whether the Act also authorized midterm

interest arbitration. AFSCME stated in closing that the issue of

whether good-faith bargaining had occurred was a statutory issue

and was not to be determined by the contractual grievance-arbi-

tration procedures. CMS argued that AFSCME did not have a

statutory right to midterm interest arbitration because, accord-

ing to CMS's interpretation of the statute, section 14 gave

security employees the right to interest arbitration only for

disputes arising during the formation of "initial" or "successor"

contracts (i.e., comprehensive bargaining agreements), not for

"midterm" disputes (i.e., an ancillary dispute arising while the

bargaining agreement is still in effect) that were not the

subject of contract "reopeners" (i.e., where the parties agree to

"reopen" the agreement or designated part of the agreement). In

the alternative, CMS argued that AFSCME contractually waived any

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statutory right to midterm interest arbitration.

The Board found that the Act allowed for midterm

interest arbitration and declined to follow CMS's narrow inter-

pretation of section 14. Instead, the Board relied largely on

the general policy language in section 2 of the Act, which states

that all collective-bargaining disputes involving security

employees shall be submitted to impartial arbitrators (5 ILCS

315/2 (West 2002)). The Board also held that AFSCME did not

contractually waive its statutory right to access midterm inter-

est arbitration in this matter. The Board ordered CMS to desist

from "[r]efusing to proceed to impasse resolution, pursuant to

[s]ection 14 of the Act." 22 Pub. Employee Rep. (Ill.) par. 10,

at 28. The Board's decision differs slightly from that of the

ALJ because the ALJ ordered the parties to proceed to interest

arbitration. However, the Board stated that "[s]ection 14 of the

Act does not contemplate immediate access to interest arbitra-

tion, without some sort of mediation attempt, unless the parties

agree to such a process." 22 Pub. Employee Rep. (Ill.) par. 10,

at 29. Therefore, pursuant to section 14(p), the Board ordered

the parties to design a process for the resolution of this

dispute, with any disagreements subject to the Board's compliance

(5 ILCS 315/14(p) (West 2002)). Section 14(p) states that

"[n]otwithstanding the provisions of [section 14] the employer

and exclusive representative may agree to submit unresolved

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disputes concerning wages, hours, terms[,] and conditions of

employment to an alternative form of impasse resolution." 5 ILCS

315/14(p) (West 2002).

CMS filed a petition for judicial review of the Board's

decision, and a question exists as to whether said petition was

timely filed. The Board and AFSCME each filed separate appellate

briefs in support of the Board's decision. Additionally, the

American Federation of Labor and Congress of Industrial Organiza-

tions (AFL-CIO) and the Illinois Fraternal Order of Police Labor

Council (IFO-PLC) each filed separate amicus curiae briefs in

support of the Board's decision.

II. ANALYSIS

A. Timing

The Board argues that, as a threshold issue, this

appeal should be dismissed because CMS's petition for direct

review was not timely filed. Parties proceeding before an

administrative agency shall be barred from obtaining judicial

review of the agency's decision if review is not sought within

the time and in the manner provided by the statute. 735 ILCS

5/3-102 (West 2004); Rodriguez v. Sheriff's Merit Comm'n of Kane

County, 218 Ill. 2d 342, 349-50, 843 N.E.2d 379, 382-83 (2006).

Section 11(e) of the Act states that any direct appeal should be

filed within 35 days from the date that a copy of the decision

sought to be reviewed was served upon the parties. 5 ILCS

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315/11(e) (West 2002). Because the term "service" is not defined

by the Act, we must defer to section 3-113 of the Administrative

Review Law, which provides in relevant part:

"The method of service of the decision shall

be as provided in the Act governing the pro-

cedure before the administrative agency, but

if no method is provided, a decision shall be

deemed to have been served either when a copy

of the decision is personally delivered or

when a copy of the decision is deposited in

the United States mail ***." (Emphasis

added.) 735 ILCS 5/3-113 (West 2002).

Illinois precedent is clear that date of "service" means the date

that the decision was mailed, not the date it was received.

Rodriguez, 218 Ill. 2d at 351, 843 N.E.2d at 383.

Here, the Board issued its decision on December 21,

2005, and asserts that it mailed out its decision on the same

day. CMS received the decision on December 23, 2005. CMS filed

its petition on Friday, January 27, 2006, 37 days after the

decision was mailed, but only 35 days after the date the decision

was received.

CMS requests, however, that we find exception to the

definition of service contained in section 3-113 because the

Board's own regulations concerning the time limits set forth in

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the Act deem that "[s]ervice of a document upon a party by mail

shall be presumed complete three days after mailing, if proof of

service shows the document was properly addressed." 80 Ill. Adm.

Code §1200.30(c) (Conway Green CD-ROM June 2003); see also 145

Ill. 2d R. 12 (also declining to label date of service as the

date the document was mailed, stating that service by mail is

complete four days after mailing). Case law supports CMS's

request, and we agree.

Section 1200.30 was explicit in providing that its

provisions applied "in computing any period of time prescribed by

the Act." 80 Ill. Adm. Code §1200.30(a) (Conway Green CD-ROM

June 2003). The Board concedes that case law has found that an

administrative agency may, under its general authority to inter-

pret its governing statutes, define "service" as occurring

sometime after mailing, and that section 1200.30 was intended to

change the statutory service provisions of section 3-113 of the

Administrative Review Law. Moren v. Department of Human Rights,

338 Ill. App. 3d 906, 909, 790 N.E.2d 86, 88-89 (2003); Board of

Education of Plainfield Community Consolidated School District

No. 202 v. Illinois Educational Labor Relations Board, 143 Ill.

App. 3d 898, 903, 493 N.E.2d 1130, 1133-34 (1986) (Fourth Dis-

trict); Water Pipe Extension, Bureau of Engineering, Laborers

Local 1092 v. City of Chicago, 195 Ill. App. 3d 50, 56, 551

N.E.2d 1324, 1326 (1990).

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However, the Board contends that section 1200.30

applies only to in-Board proceedings, not to petitions for

judicial review, and therefore is not applicable to the instant

case. The Board argues that its 2004 amendment to the regula-

tions, which added section 1200.3 (80 Ill. Adm. Code §1200.3

(added by emergency rulemaking at 28 Ill. Reg. 7529, eff. May 12,

2004)), now prohibits section 1200.30's application to external

procedures, such as a petition for judicial review and that

Moren, School District 202, and Local 1092 no longer apply. We

disagree.

The amendment inserted a general policy statement,

section 1200.3, preceding section 1200.30. 80 Ill. Adm. Code

§1200.3 (added at 28 Ill. Reg. 15154, eff. November 1, 2004)).

The general policy statement provided:

"The regulations contained in this Part

detail the procedures that employers, employ-

ees[,] and labor organizations should use

when filing petitions pursuant to parts 1210

[representation proceedings], 1220 [unfair

labor charges,] and 1230 [impasse resolu-

tion], which implement the provisions of the

Illinois Public Labor Relations Act ***."

(Emphases added.) 80 Ill. Adm. Code §1200.3

(added at 28 Ill. Reg. 15154, 15160 (eff.

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November 1, 2004)).

The Board asserts that the regulations contained in this part

only apply to internal procedures following the amendment because

section 1200.3 refers only to petitions filed under sections

1210, 1220, and 1230, which are all, according to the Board,

internal procedures.

However, section 1200.30 is also contained in the

"Part" to which section 1200.3 refers. Moreover, section

1200.30, the specific regulation concerning timing of service,

remains unchanged and still explicitly states that the timing

provision applies "any period of time prescribed by the Act or

this Part." (Emphases added.) 80 Ill. Adm. Code §1200.30

(Conway Green CD-Rom June 2003). The timing of a petition for

judicial review is a "period of time prescribed by the Act." As

such, section 1200.30 should continue to apply to external

procedures as dictated by case-law precedent. As stated in

Moren, it would be "fundamentally unfair to penalize [the]

petitioner for relying on procedural rules promulgated by the

very agency from which [it] seeks judicial review." Moren, 338

Ill. App. 3d at 910, 790 N.E.2d at 89.

B. Standard of Review

The Board concedes that this court should apply a de

novo standard of review in evaluating the Board's determination

that the Act authorized midterm interest arbitration. See Wilson

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v. Department of Professional Regulation, 344 Ill. App. 3d 897,

907, 801 N.E.2d 36, 44 (2003) (de novo review of an administra-

tive agency's decision is limited to matters involving statutory

interpretation). However, the Board argues, and we agree, that,

to the extent that there are any ambiguities, this court should

give deference to the administrative agency's interpretation of

the Act it was created to enforce. County of Will v. Illinois

State Labor Relations Board, 219 Ill. App. 3d 183, 185, 580

N.E.2d 884, 885 (1991), citing City of Decatur v. American

Federation of State, County, & Municipal Employees Local 268, 122

Ill. 2d 353, 361, 522 N.E.2d 1219, 1222 (1988). It is reasonable

to defer to an agency's interpretation of its enabling statute

because the agency presumably makes informed decisions based on

its experience and expertise. County of Will, 219 Ill. App. 3d

at 185, 580 N.E.2d at 885. Other courts have characterized this

form of deference to the agency's interpretation as "relevant but

not binding," stressing that de novo review still applies.

Branson v. Department of Revenue, 168 Ill. 2d 247, 254, 659

N.E.2d 961, 965 (1995).

The issue of waiver turns on an application of the

relevant law to the particular facts of the case. Specifically,

we must ask whether the language in the bargaining agreement

meets the "clear and unmistakable" standard for a party to a

labor agreement's waiver of a statutory right. See American

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Federation of State, County & Municipal Employees v. Illinois

State Labor Relations Board, 274 Ill. App. 3d 327, 334, 653

N.E.2d 1357, 1362 (1995) (regarding "clear and unmistakable"

standard). Where the Board's determination is best considered a

mixed question of law and fact, the "clearly erroneous" standard

of review is appropriate. City of Belvidere v. Illinois State

Labor Relations Board, 181 Ill. 2d 191, 205, 692 N.E.2d 295, 302

(1998).

C. Statutory Right to Interest Arbitration

The crux of CMS's argument on appeal is that the plain

language of section 14, entitled "Security Employee, Peace

Officer[,] and Fire Fighter Disputes," simply does not grant

security employees the statutory right to the interest arbitra-

tion in order to resolve midterm interest disputes. Before we go

any further in discussing CMS's argument, we clarify that the

Board did not hold that section 14 guaranteed security employees

a right to immediate access to interest arbitration. Rather, the

Board held that section 14 authorizes midterm interest arbitra-

tion for security employees.

In applying provisions of a statute, our primary goal

is to ascertain and give effect to the intent of the legislature,

and the language of the statute itself is the best indicator of

the legislature's intent. See Price v. Philip Morris, Inc., 219

Ill. 2d 182, 242, 848 N.E.2d 1, 37 (2005). CMS contends that

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section 14's specific reference to initial and successor con-

tracts without referencing midterm disputes means that section 14

does not cover midterm disputes. The portions of section 14 to

which CMS points in support of its argument state:

"(a) In the case of collective[-]bargaining

agreements involving units of security em-

ployees of a public employer, *** and in the

case of disputes under [s]ection 18, unless

the parties mutually agree to some other time

limit, mediation shall commence 30 days prior

to the expiration date of such agreement ***.

In the case of negotiations for an initial

collective[-]bargaining agreement, mediation

shall commence upon 15 days notice from

either party ***. If any dispute has not

been resolved within 15 days after the first

meeting of the parties and the mediator, or

within some other time limit as may be

mutually agreed upon by the parties, either

[party] may request *** arbitration, and shall

submit a copy of the request to the Board."

(Emphases added.) 5 ILCS 315/14(a) (West

2002).

And:

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"(h) Where there is no agreement between

the parties, or where there is an agreement

but the parties have begun negotiations ***

looking into a new agreement or amendment

of the existing agreement, and the wage rates

or other conditions of employment under the

proposed new or amended agreement are in dis-

pute, the arbitration panel shall base its

findings, opinions and order upon the follow-

ing factors, as applicable: ***." (Emphasis

added.) 5 ILCS 315/14(h) (West 2002)

("agreement" means a collective-bargaining

agreement, not a settlement of terms).

(Also, it appears to be CMS's position that the term "amended

agreement" refers to a "reopened" contract term, and not a

midterm dispute.) Contrary to CMS's assertion, the plain lan-

guage of section 14 does not omit all references to midterm

disputes. Though section 14's references to midterm disputes are

not as obvious as its references to initial and successor con-

tracts or even to contract "reopeners," they are subtly present.

For example, subsection 14(a) specifies that the dispute-resolu-

tion procedures delineated in section 14 (i.e., including inter-

est arbitration) are available to section 18 disputes. 5 ILCS

315/14(a) (West 2002) ("In the case of collective[-]bargaining

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[disputes] involving *** security employees *** and in the case

of disputes under [s]ection 18"). Section 18 authorizes the

courts to relegate employees who have the right to strike to

resolve their disputes under section 14 procedure when the act of

striking might present a clear and present danger to the public.

5 ILCS 315/18 (West 2002). Because there is no statutory dis-

tinction between an employee's right to strike midterm and an

employee's right to strike in support of its position regarding

an initial or successor contract, section 14 authorizes the use

of its procedures to employees who are potentially involved in a

midterm dispute.

CMS supplements its "plain-language" argument with the

contention that the interest-arbitration timetables set forth in

section 14 are unworkable for resolution of midterm disputes.

CMS notes that it could take over 170 days to resolve an ancil-

lary issue, during which time the employer would be prohibited

from changing any existing wages, hours, or other conditions of

employment during the pendency of the arbitration proceeding. 5

ILCS 315/14(l) (West 2002). This argument is ultimately uncon-

vincing. The timetable set forth in section 14 is directory, not

mandatory. See City of Seattle, Wash. Public Employment Rela-

tions Comm'n Decision, No. 1667-A (February 28, 1984) (recogniz-

ing the directory/mandatory distinction), available at

http://www.perc.wa.gov/databases/ulp/1677-a.htm (last visited

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April 13, 2007). In fact, the Act specifically states that the

parties may mutually agree to "some other time limit." 5 ILCS

315/14(a) (West 2002). Also, it is important to remember that

the Board's actual order in this case required the parties to

design their own process for the resolution of the dispute, with

any disagreements subject to the Board's compliance process. 5

ILCS 315/14(p) (West 2002). Hence, the parties here were not

bound by particular statutory time constraints.

State of Connecticut Office of Labor Relations v.

Connecticut State Employees Ass'n, Connecticut State Board of

Labor Relations Decision No. 2860 (October 30, 1990), which CMS

cites, most plainly illustrates CMS's argument that the specific

provisions of section 14 preclude midterm interest arbitration.

The Connecticut labor board held that because the arbitration

provision at issue specifically referenced initial and successor

contracts, as well as contract "reopeners," but did not reference

midterm disputes, the arbitration provision could not be inter-

preted to cover midterm disputes. Connecticut, slip order at 6.

Interestingly, shortly after the board came out with its decision

in Connecticut, the Connecticut legislature added a clause to the

arbitration provision that expressly provided for midterm inter-

est arbitration. See Conn. Pub. Act 91-290, eff. October 1, 1991

(adding section 5-276a(c) to the statute (see Conn. Gen. Stat.

§5-276a(c) (1998)); State of Connecticut v. Connecticut Employees

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Union Independent, Inc., No. CV93-0704068 (October 22, 1993)

(unreported decision by Connecticut Superior Court judge implic-

itly affirming the board's determination that section 5-276a(c)

applied to certain midterm bargaining negotiations) (1993 Conn.

Super. LEXIS 2726). Additionally, we note that the labor board

in Connecticut failed to consider policy arguments that the

instant Act, as will be discussed below, requires us to consider.

Most basically, the Connecticut board did not consider the

specific arbitration provision in conjunction with a more general

policy clause.

Looking to the language of section 14 is not enough;

this court must evaluate the statute as a whole and, if possible,

construe it so that no term is rendered superfluous or meaning-

less. Texaco-Cities Service Pipeline Co. v. McGaw, 182 Ill. 2d

262, 270, 695 N.E.2d 481, 485 (1998). Section 2 of the Act,

entitled "Policy," also makes specific reference as to how

disputes involving security employees are to be resolved:

"[A]ll collective[-]bargaining disputes in-

volving persons *** defined herein as secu-

rity employees shall be submitted to impar-

tial arbitrators, who shall be authorized to

issue awards in order to resolve such dis-

putes. It is the public policy of the State

of Illinois that where the right of employees

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to strike is prohibited by law, it is neces-

sary to afford an alternate, expeditious,

equitable[,] and effective procedure for the

resolution of labor disputes subject to ap-

proval procedures mandated by this Act. To

that end, the provisions for such awards

shall be liberally construed." (Emphases

added.) 5 ILCS 315/2 (West 2002).

CMS argues that the general policy provisions of

section 2, indicating that "all" collective-bargaining disputes

should be resolved through arbitration, is in conflict with the

more specific provisions of section 14. When interpreting

legislative intent, specific provisions control over the more

general provisions. Knolls Condominium Ass'n v. Harms, 202 Ill.

2d 450, 459, 781 N.E.2d 261, 267 (2002). However, the statutes

should be construed in harmony with each other if at all possible

so that no provisions are rendered inoperative. Knolls, 202 Ill.

2d at 458-59, 781 N.E.2d at 267.

The key to harmonizing the two sections is that section

2 mandates "alternate, expeditious, equitable[,] and effective

procedure" for labor disputes where the employees who are prohib-

ited from striking "by law." (Emphasis added.) 5 ILCS 315/2

(West 2002). The phrase "alternate, expeditious, equitable[,]

and effective" is a statutorily mandated right. Section 2 makes

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clear the legislature's intent that the statutory dispute-resolu-

tion rights of employees who do not have the statutory right to

strike be commensurate with the right to strike.

In reaching impasse in a typical negotiation, an

employer has the right to unilaterally implement its final offer

and an employee has the right to strike in support of its bar-

gaining demands. Local Union No. 47 v. National Labor Relations

Board, 927 F.2d 635, 640 (D.C. Cir. 1991); Hydrologics, Inc., 293

N.L.R.B. 1060, 1062 n.13, 131 L.R.R.M. 1350, 1353 n.10, citing

Speedrack, Inc., 293 N.L.R.B. 1054, 1055-56, 131 L.R.R.M. 1347

(1989). Providing each party with an economic weapon puts the

parties on more equal footing. Local Union No. 47, 927 F.2d at

643, citing National Labor Relations Board v. Lion Oil Co., 352

U.S. 282, 290-91, 1 L. Ed. 2d 331, 338-39, 77 S. Ct. 330, 335

(1957). However, employees who do not have the statutory right

to strike, such as the security employees in the instant case,

would not be on equal footing with the employer were the employer

to implement its final offer upon reaching impasse. Such a

result is not in line with the plain language of section 2, which

states that it is necessary to provide employees who are statuto-

rily prohibited from striking with an alternate and equitable

means of resolving their disputes. The Act itself grants a

general right to strike to non-section 14 employees and makes no

distinction as to whether that right applies only to initial-

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successor disputes or whether that right applies to midterm

disputes. See 5 ILCS 315/17 (West 2002) (granting nonsection 14

employees a general right to strike). As such, the statutory

dispute-resolution procedures of section 14, the only section

detailing dispute-resolution procedures for section 14 employees,

must cover midterm disputes as well as initial-successor disputes

if said dispute-resolution procedures are to be alternate and

equitable to the right to strike. See Seattle, Wash. Public

Employment Relations Comm'n Decision No. 1667-A (using similar

reasoning to determine that despite the statute's specific

reference to initial and successor contracts only, the union was

entitled to interest arbitration under the statute, if necessary,

to resolve a midterm dispute upon reaching impasse in bargain-

ing). As stated by the commission in Seattle, "[t]he balance of

power would be tipped in favor of the employer by the [statutory

provisions prohibiting striking], which clearly preclude the

alternative of economic action [that] would have been available

to [those employees with the right to strike]." Seattle, Wash.

Public Employment Relations Comm'n Decision No. 1667-A (1984),

slip order at 4. We will hereinafter call the argument that

section 2 favors a statutory right to midterm interest arbitra-

tion in exchange for a statutory right to strike as the "right to

strike" argument.

The only other case to consider the "right to strike"

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argument, Dane County, Wis. Employment Relations Comm'n Decision

No. 17400 (November 2, 1979), affm'd sub nom. Dane County Special

Education Ass'n v. Wisconsin Employment Relations Comm'n, No. 80-

CV-0097 (Wis. Cir. Ct. of Dane County, June 9, 1980), is distin-

guishable. The Dane County labor board found the "right to

strike" policy argument (slip order at 9) "compelling," (slip

order at 11) but stated that it would not even consider the

policy argument where it found the statutory language to be clear

(slip order at 11-12). The interest-arbitration provision in

Dane County, as in the instant case, made express reference to

initial and successor contracts only (slip order at 11).

However, the statutory language in Dane County more

specifically excluded midterm interest arbitration. The Dane

County statute contained parallel provisions, one concerning

fact-finding procedures and one concerning interest-arbitration

procedures. The fact-finding language encompassed midterm

disputes and the interest-arbitration procedure did not mention

midterm disputes. The Wisconsin labor board reasoned that where

a section of a statute contains a particular provision, omission

of the same provision in a similar section is significant to show

different legislative intent for the two sections. Dane County,

slip order at 11-12; see also for example, Hamilton v. Conley,

356 Ill. App. 3d 1048, 1056, 827 N.E.2d 949, 957 (2005). The

instant statute contains no such parallel provisions.

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Even more important, Dane County is not persuasive

because, unlike the general policy statement in Dane County,

which also promoted the peaceful resolution of labor disputes,

the policy statement in the present case makes express reference

to the potential imbalance between employees who do not have the

right to strike and the employers with whom they are negotiating,

stating that it is "necessary" to afford security employees

access to an economic bargaining weapon that is qualitatively

similar to the right to strike. See 5 ILCS 315/2 (West 2002).

This express language is indication enough that we, unlike the

Board in Dane County, must consider the "compelling" "right to

strike" policy argument.

CMS argues that the "right-to-strike" argument must

fail here because finding that section 14 employees have a

statutory right to midterm interest arbitration would afford

section 14 employees greater rights than their nonsection 14

counterparts in this case. This is a result that CMS deems

contrary to the policy statement contained within section 2,

mandating that section 14 employees receive alternate and equita-

ble procedure for dispute resolution. A careful reading of

section 2, however, shows that section 2 states that the statu-

tory dispute-resolution rights to be granted to security employ-

ees are to be alternate to the right to strike itself, not

necessarily alternate to the rights afforded to other employees.

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See 5 ILCS 315/2 (West 2002). As discussed in Local Union No.

47, the rationale behind the right to strike is to put employees

on equal footing with employers, and it is therefore logical to

infer that any statutory alternative to the right to strike is

also meant to facilitate good-faith negotiations between employ-

ers and employees. Local Union No. 47, 927 F.2d 635, 642-43.

We nevertheless address CMS's argument that allowing

security employees midterm interest arbitration under the Act

would improperly give security employees greater rights than non-

section 14 employees. CMS notes that the bargaining agreement

relevant here contains a general no-strike provision that is

applicable to all employees, both security employees that are

statutorily prohibited from striking and nonsection 14 employees.

CMS seems to imply that, in this case, nonsection 14 employees

are also statutorily prohibited from striking. See 5 ILCS 315/17

(West 2002). Section 17, entitled "Right to Strike," states that

nonsection 14 employees generally have a statutory right to

strike so long as the existing bargaining agreement does not

prohibit the strike and so long as the existing bargaining

agreement does not contain a final and binding arbitration

provision. 5 ILCS 315/17 (West 2002). Admittedly, the bargain-

ing agreement here contains both a no-strike clause and a

grievance-arbitration provision. As such, CMS argues that

finding security employees have the right to midterm interest

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arbitration in certain situations, while simultaneously finding

that nonsection 14 employees do not have the right to strike,

affords security employees greater rights than nonsection 14

employees.

However, whether the nonsection 14 employees covered by

the bargaining agreement may be statutorily prohibited from

striking in this case is of no import. As will be discussed

further in the waiver section of this analysis, the no-strike

contractual clause was not statutorily mandated. See 5 ILCS

315/8 (West 2002) (stating the parties have an option, upon

mutual agreement, to forgo a no-strike clause in the bargaining

agreement). The fact that security employees maintain a statu-

tory right to access midterm interest arbitration while nonsec-

tion 14 employees lose the statutory right to strike that

prompted the legislature to give security employees the right to

interest arbitration in the first place results from the inter-

play between section 17 of the statute and the unique terms of

the particular contract at issue here. This interplay between

statute and a specific contract should not negate a general

statutory right; rather, said interplay between contract and

statute is a question more appropriate for a waiver analysis.

D. Waiver of Statutory Right to Interest Arbitration

CMS next contends that even if section 14 security

employees have the statutory right to demand midterm interest

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arbitration, then the security employees have waived those rights

in the bargaining agreement. The contractual waiver of a statu-

tory right in a labor agreement must be "clear and unmistakable."

American, 274 Ill. App. 3d at 334, 653 N.E.2d at 1362. The

language of the contract must evince an "unequivocal intent" to

relinquish the relevant statutory right; waiver is never presumed

and the language sustaining the waiver must be specific. Ameri-

can, 274 Ill. App. 3d at 334, 653 N.E.2d at 1362. In support of

its waiver argument, CMS points to the bargaining agreement's no-

strike clause and its facilities-closure clause.

As stated above, the bargaining agreement contained a

no-strike clause, which prohibited all employees, both section 14

and nonsection 14, from striking. As a statutorily mandated

tradeoff to the no-strike clause, the bargaining agreement also

contained a grievance-arbitration provision. See 5 ILCS 315/8

(West 2002). Section 8 of the Act states that, unless mutually

agreed otherwise, the bargaining agreement shall contain a

grievance resolution procedure that shall apply to all employees

in the bargaining unit and shall provide for final and binding

arbitration of disputes concerning the administration or inter-

pretation of the bargaining agreement. Section 8 also provides

that whenever a bargaining agreement contains a final and binding

arbitration provision, it shall also contain a provision prohib-

iting strikes for the duration of the agreement. 5 ILCS 315/8

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(West 2002); City of Decatur, 5 Pub. Employee Rep. (Ill.) par

2008, No. S-CA-88-92, at X-87 (Illinois State Labor Relations

Board 1989). The rationale behind this tradeoff is to ensure

that negotiations proceed in good faith by keeping the parties on

even footing in the face of impasse. In other words, where the

contract takes away a party's right to strike in support of its

bargaining position, the contract also provides that party with

an alternative means of resolution, preventing the employer from

unilaterally implementing its final offer before utilizing

mediation and arbitration procedures.

Contrary to CMS's assertion, the coterminous no-strike

clause and grievance-arbitration clause do not require this court

to find that the security employees have waived their statutory

right to interest arbitration, nor do they require that this

issue be resolved through contractually authorized grievance-

arbitration procedures. Such a result would only be tenable if a

security employee's statutory right to interest arbitration was

somehow inversely dependent upon a nonsection 14 employee's

contractual waiver of the statutory right to strike. We have

already held this is not the case. The mere fact that there was

a relationship between the legislature's intent in enacting two

different statutory rights (here the right to interest arbitra-

tion and the right to strike), for two different groups of

employees (here security employees and nonsection 14 employees),

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does not mean that one group's contractual waiver of its respec-

tive statutory right results in the other group's contractual

waiver of its statutory right. The fact that nonsection 14

employees have given up their right to strike in exchange for

grievance-arbitration procedures does not mean that security

employees have waived their statutory right to interest arbitra-

tion.

The bargaining agreement also contained a facilities-

closure clause, contained in a memorandum of understanding in the

bargaining agreement's appendix, which stated as follows:

"It is understood by the parties that within

sixty (60) days of the [e]mployer's announce-

ment of the closure or conversion of a facil-

ity ***, the parties agree to negotiate over

such matters that may impact upon employees

covered by this agreement on questions of

wages, hours[,] and other conditions of em-

ployment." (Emphasis added.)

According to CMS, the significance of this clause is that it

gives the state a right to close a facility and obligates CMS to

bargain over the impact of such closures but is silent as to how

the parties would resolve impact bargaining if a voluntary

agreement was not reached. CMS notes that, as evidenced by

article XXXIV, section 4, in the bargaining agreement, entitled

- 29 -

"Waiver," AFSCME had unlimited right and opportunity to make

demands and proposals on any subject of collective bargaining.

One of those demands and proposals was the memorandum of under-

standing concerning facility closures quoted above. CMS notes

that AFSCME had the opportunity to reference statutory interest

arbitration in that memorandum and it did not. CMS argues that

by agreeing to impact bargaining on facility closures, without

more, the parties have agreed to apply the normal procedures with

respect to impact bargaining--that when the parties reach im-

passe, the employer may unilaterally implement its final offer.

CMS argues that because the collective-bargaining agreement did

not specifically include a clause stating that the parties had a

right to go to interest arbitration under the statute, the

dispute could only be covered under the jurisdiction of the

contract's grievance-arbitration procedure.

There are three problems with this argument. First,

there is no rule that a party has to affirmatively name a statu-

tory right in a contract in order to preserve that statutory

right. See American, 274 Ill. App. 3d at 334, 653 N.E.2d at

1362. Second, CMS's two conclusions, that CMS has a right to

implement its final offer upon reaching impasse and that the

dispute at issue here could only be covered under the contract's

grievance-arbitration procedure, are inconsistent with one

another. The contractual grievance-arbitration procedure does

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not provide for implementation of a final offer upon impasse.

Rather the grievance-arbitration procedure dictates that parties

resolve disputes through the lowest level of grievance procedure

possible, advancing up "steps" of grievance procedure upon

failing to come to a resolution, ultimately allowing for binding

arbitration procedures if the parties complete the requisite

steps. Third, while the dispute at issue may very well have been

resolved under the contractual grievance-arbitration procedures,

the parties in this case have stipulated that there was no issue

of deferral to the grievance-arbitration procedures. In Spokane

County, No. 12105-U-95-2853 Wash. Public Employment Relations

Comm'n Decision No. 5698 (October 9, 1996) (deferral does not

mean loss or surrender of jurisdiction) (1996 WL 686780, at *5),

the Commission stated that even where a dispute involving unilat-

eral change is arguably covered by the grievance-arbitration

procedure in the existing bargaining agreement, and therefore may

be most rightfully be deferred to the grievance-arbitration

procedures, a commission still has jurisdiction over such mat-

ters.

Even if CMS's argument were meritorious as to an

implicit waiver of the statutory right to interest arbitration,

CMS is still unable to meet the applicable waiver standard in

Illinois. The employees at issue here have not "clearly and

unmistakably" waived their right to interest arbitration. As

- 31 -

stated by the Board, the no-strike clause does not even reference

interest arbitration, let alone a waiver of interest arbitration.

Nothing in the bargaining agreement explicitly states that

section 14 employees, or any employees for that matter, waive

their statutory right to interest arbitration.

Accordingly, the security employees have not contractu-

ally waived their statutory right to access midterm interest-

arbitration procedures authorized by the Act.

III. CONCLUSION

For the aforementioned reasons, we affirm the Board's

decision and order.

Affirmed.

KNECHT and TURNER, JJ., concur.

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