Fraternal Order of Police v. Illinois Labor Relations Board

ILLINOIS OFFICIAL REPORTS

Appellate Court

Fraternal Order of Police, Chicago Lodge No. 7 v. Illinois Labor Relations Board, 2011 IL

App (1st) 103215

Appellate Court FRATERNAL ORDER OF POLICE, CHICAGO LODGE No. 7,

Caption Petitioner, v. ILLINOIS LABOR RELATIONS BOARD, LOCAL

PANEL, and THE CITY OF CHICAGO, Respondents.

District & No. First District, First Division

Docket No. 1-10-3215

Filed November 21, 2011

Held The finding of the Illinois Labor Relations Board, Local Panel, that the

(Note: This syllabus City of Chicago did not commit an unfair labor practice by failing to

constitutes no part of bargain over the city’s consolidation of its training districts for

the opinion of the court probationary police officers was affirmed where the record supported the

but has been prepared Board’s finding that the police union waived its claim that the city did not

by the Reporter of bargain over the effects of the consolidation decision.

Decisions for the

convenience of the

reader.)

Decision Under Petition for review of order of Illinois Labor Relations Board, Local

Review Panel, No. L-CA-09-009.

Judgment Confirmed.

Counsel on Paul D. Geiger, of Fraternal Order of Police, of Chicago, for petitioner.

Appeal

Stephen R. Patton, Corporation Counsel, of Chicago (Benna Ruth

Solomon, Myriam Zreczny Kasper, and J. Mark Powell, Assistant

Corporation Counsel, of counsel), for respondent City of Chicago.

Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,

Solicitor General, and Sharon A. Purcell and Brian F. Barov, Assistant

Attorneys General, of counsel), for respondent Illinois Labor Relations

Board, Local Panel.

Panel PRESIDING JUSTICE HOFFMAN delivered the judgment of the court,

with opinion.

Justices Karnezis and Rochford concurred in the judgment and opinion.

OPINION

¶1 The petitioner, the Fraternal Order of Police, Chicago Lodge No. 7 (Lodge), seeks review

of an order of the Illinois Labor Relations Board, Local Panel (Board), finding that the City

of Chicago (City) did not commit an unfair labor practice by failing to bargain over its

consolidation of training districts for probationary police officers. On appeal, the Lodge

contends that the Board erred in concluding that the consolidation decision was not a

mandatory subject of bargaining and in finding that the Lodge had waived the claim that the

City violated its duty to bargain over the effects of the consolidation decision. For the reasons

that follow, we affirm the Board’s decision in all respects.

¶2 The record establishes the following relevant facts. On September 9, 2008, the Lodge

filed an unfair labor practice charge with the Board, claiming that the City had violated

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 2010)) by unilaterally deciding to consolidate the 18 existing

police officer training districts1 into 6 training districts and by engaging in direct negotiations

with two field training officers (FTOs). The charge further asserted that FTOs are police

officers who are assigned by the Chicago police department (Department) to train and

evaluate probationary police officers and who receive higher compensation for performing

such training. FTOs are members of the bargaining unit represented by the Lodge, but the

1

Although the Lodge asserted that there were 12 training districts prior to the consolidation,

the evidence presented at the administrative hearing established that there were 18 training districts

at the time the consolidation decision was made.

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probationary police officers are not included in the bargaining unit until they have completed

the first 18 months of their employment with the Department.

¶3 Following an investigation pursuant to section 11(a) of the Act (5 ILCS 315/11(a) (West

2010)), the executive director of the Board determined that the charge involved dispositive

issues of law or fact and issued a complaint for hearing before an administrative law judge

(ALJ). The complaint alleged that, during the negotiations for a successor collective

bargaining agreement, the Lodge made various proposals relating to FTOs, including

expansion of the field training districts to all 25 police districts in the City, and that the City

had rejected the expansion proposal at a joint bargaining subcommittee meeting in December

2007.2 In addition, the complaint alleged that, at a meeting on June 17, 2008, attended by

certain members of the Lodge and by Police Superintendent Jody Weis and other members

of the Department, the parties agreed that future negotiations would take place regarding the

Lodge’s expansion proposal. The complaint further asserted that, on September 4, 2008, the

City announced the consolidation of field training districts, which reduced the number of

such districts from 18 to 6, without further negotiations with or prior notice to the Lodge and

that FTOs not currently assigned to 1 of the 6 training districts would have to bid for one or

resign their FTO positions and lose the additional FTO compensation.

¶4 The complaint claimed that the transfer of FTO positions involves wages, hours, or

working conditions and was a mandatory subject of bargaining. It also claimed that the City

had violated the Act by failing to bargain in good faith over the consolidation decision and

the Lodge’s proposal to expand training districts and by engaging in direct dealing with

Lodge members. The City answered the complaint, and the parties filed statements of

uncontested material facts, in which they agreed that the transfer of FTO positions into new

districts involves wages, hours, or working conditions.

¶5 During his opening statement before the ALJ, counsel for the Lodge stated that “[t]he

Department also required FTOs who are not assigned to these [consolidated] training districts

to transfer to those districts or to resign their FTO position and forfeit the extra pay and

overtime opportunities that were attendant to that position. The Department admits that the

transfer of FTO officers into new districts involves wages, hours, and working conditions.

These changes in the working conditions of the FTOs were implemented without bargaining

with the Lodge. The Department violated the [A]ct when it engaged in direct dealing with

officers represented by the Lodge, and then the Department did not negotiate in good faith

with the Lodge. The evidence will establish these violations ... .”

¶6 The Lodge called FTO Richard Aguilar, FTO Richard Daly, and Lodge president Mark

Donahue as witnesses. The testimony of these witnesses indicated that FTOs are responsible

for teaching fundamental policing skills to new recruits, who train for 4 weeks with an FTO

at each different watch, for a total of 12 weeks of training. FTO positions are filled through

a formal application and testing process, and FTOs earn a higher rate of pay than that

received by other police officers, regardless of whether they actually have a probationary

2

Though the existing collective bargaining agreement expired on June 30, 2007, by its terms,

it continued in effect while the parties negotiated a successor agreement.

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police officer to train at any given time, and they also receive additional compensation for

various training-related activities.

¶7 On June 6, 2007, the Lodge submitted, in the successor negotiations, its proposal to

expand FTO assignments to all police districts and to increase the rate of FTOs’

compensation. The purpose of this proposal was to improve the working conditions of FTOs

and to attract more officers to apply for such positions, though at least one training district

had an excess number of FTOs with no recruits to train. The City rejected this proposal in

December 2007.

¶8 There were two meetings during the summer of 2008 at which the FTO program was

discussed. On June 17, 2008, several Lodge members, including those in leadership

positions, attended a meeting to get acquainted with Superintendent Weis and his staff, all

of whom had recently been appointed. At some point during this meeting, Superintendent

Weis mentioned that the Department was contemplating making some changes to the FTO

program and that he intended to ask some of the more senior FTOs for their input. Though

Superintendent Weis indicated that Aguilar, who had been an FTO for more than 20 years,

would be included in any conversations regarding changes to the program, Aguilar was never

contacted about that issue. A subsequent meeting was held on July 23, 2008, between several

supervisory police officers and FTOs Richard Daly and Shawn Hallinan. The purpose of this

meeting was to solicit input from the FTOs about how to improve the field training program,

and Daly was directed by his watch commander to attend the meeting.

¶9 On September 3, 2008, Superintendent Weis issued a bulletin announcing the

consolidation of field training districts as a “first step” in the process of improving the FTO

program. The bulletin stated that recruits would be trained in six particular districts,

representing all of the Department’s five police areas, and that the selected districts “have

broad-scale policing issues ranging from crime, diverse communities, schools, business

districts, and other service issues.” The bulletin explained that, as a result of this change,

recruits will be trained in “some of the busiest districts in the City, and will be well prepared

to work in any district at the successful completion of their training.” The bulletin further

explained that consolidation was “necessary to ensure that a high concentration of [FTOs]

are available in training districts, providing recruits with greater interaction and more focused

instruction with [FTOs].” The following day, the Department issued a memorandum

detailing the two-level bidding process by which FTOs who were not already assigned to one

of the consolidated districts would move into one. Those FTOs who were not successful

bidders or who did not bid would be reassigned to a new district, and any FTOs who wanted

to remain in their existing district could avoid reassignment by resigning as an FTO. The

“current watch” of any FTOs who transferred would be honored in the new training district

until the end of the year, after which, transferring FTOs would be assigned to all three

watches. Following the consolidation, approximately 30 FTOs resigned their field training

positions.

¶ 10 The City called Deputy Superintendent Peter Brust, Lieutenant Michael Dejanovich,

Commander Donald O’Neill, Lieutenant Jeff Mappa, and Michael Masters, the

superintendent’s chief of staff, as witnesses. The testimony of these witnesses indicated that,

at the “get acquainted” meeting in June 2008, members of the Lodge and Superintendent

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Weis and his staff generally discussed issues related to the Department, including the

improvement of the FTO program, but no specific contract proposals affecting FTOs were

addressed. Superintendent Weis had established an internal committee to study ways to

strengthen and improve the field training program, but this informal group was not connected

to the negotiations for a successor collective bargaining agreement. In July 2008, the

committee conducted a meeting, which was also attended by Daly and Hallinan. This

meeting was informational and provided an opportunity for FTOs Hallinan and Daly to

express their views on the field training program. No consensus was reached as to how to

change the FTO program, and the July 2008 meeting was the only occasion on which the

internal committee received input from FTOs regarding the program before the consolidation

was announced. The consolidation did not reduce the total number of available FTO

positions, but it concentrated the assignment of those FTO positions into 6, rather than 18,

designated districts.

¶ 11 During the testimony of Commander Donald O’Neill, the Lodge’s attorney objected to

the City’s examination regarding how the Department would implement the consolidation

decision, claiming that this line of questioning was not relevant to the charge at issue.

Counsel for the City responded that the testimony related to “the issue of impact bargaining”

because it showed that the City did have discussions with the Lodge about the “impact of the

consolidation.” She further indicated that, based on comments made during the Lodge’s

opening statement, she was under the impression that “what happened after the

consolidation” was at issue, in addition to the decision to consolidate itself. Counsel for the

City stated that, if her impression was incorrect, she would “cease this line of questioning.”

The ALJ then expressed her understanding that the Lodge’s charge was based on the City’s

refusal to bargain over the consolidation of the field training districts, but the Lodge had not

alleged that the City refused to bargain about the impact of that decision. When the ALJ

inquired whether the charge was based on the refusal to bargain about the consolidation and

whether “the discussion about the impact goes towards [the] requested remedy,” the Lodge’s

attorney agreed that this characterization was correct, and counsel for the City stated that

“this line of questioning goes towards *** the remedy that’s being requested” by the Lodge.

¶ 12 The ALJ indicated that the Lodge’s objection would be sustained “to the extent this

testimony is being offered that [the City] bargained about the impact.” After further

discussion, counsel for the City confirmed that the challenged testimony was offered as

evidence of bargaining over the impact, and the Lodge’s attorney reasserted his objection

based on relevancy to the charge alleged.

¶ 13 Upon consideration of the evidence presented and posthearing briefing, the ALJ issued

a recommended decision, finding that the City violated the Act by refusing to bargain and

failing to bargain in good faith with the Lodge over the decision to consolidate training

districts and over its effects on FTOs. The ALJ found, however, that the City did not engage

in direct dealing with Lodge members.

¶ 14 The City filed exceptions to the ALJ’s recommended decision, arguing, inter alia, that

the determination of where to provide the best training for probationary police officers is

related to the Department’s organizational structure and, as such, is a subject of inherent

managerial authority under the Act. The City further argued that the burden bargaining would

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impose on managerial authority would outweigh the corresponding benefits to the decision-

making process since the reasons for consolidation were not amendable to bargaining. In

addition, the City argued that whether it was obligated to bargain over the impact of

consolidation was not properly before the ALJ because it was not raised in the complaint.

The Lodge filed a response to the City’s exceptions.

¶ 15 After hearing oral argument, the Board rejected the ALJ’s recommended decision and

dismissed the complaint. Applying the three-part test articulated in Central City Education

Ass’n, IEA/NEA v. Illinois Educational Labor Relations Board, 149 Ill. 2d 496, 599 N.E.2d

892 (1992), the Board found that the consolidation decision concerned wages, hours, and

terms of employment of FTOs, but the means of improving the quality of training

probationary employees is a matter of inherent managerial authority. The Board concluded

that the burden on the City’s managerial authority to determine how best to train its new hires

outweighs the benefits bargaining would provide to the decision-making process. In reaching

this conclusion, the Board observed that, although bargaining might have resulted in

suggestions as to alternative means of improving field training, the burden on the City’s

managerial authority to develop training policy, particularly how best to train new recruits

outside the bargaining unit, exceeded any arguable benefits of bargaining.

¶ 16 In addressing the question of whether the City had violated its duty to bargain over the

effects of the consolidation decision, the Board determined that this issue was not properly

before the ALJ, where it had not been raised in the charge or in the executive director’s

complaint for hearing, no motion to amend the complaint was ever made, and the Lodge did

not identify the issue as a claimed violation in its opening statement. Based on these

circumstances, the Board found that the record did not “allow for meaningful consideration”

of an effects-bargaining claim and rejected the ALJ’s determination that the City violated a

duty to bargain over the effects of the consolidation decision.

¶ 17 The Lodge thereafter petitioned this court for direct review of the Board’s decision. See

5 ILCS 315/11(e) (West 2010); 735 ILCS 5/3-113 (West 2010); Ill. S. Ct. R. 335 (eff. Feb.

1, 1994).

¶ 18 In an appeal from a final administrative decision, the applicable standard of review

depends upon whether the question presented is a question of fact, a question of law, or a

mixed question of law and fact. City of Belvidere v. Illinois State Labor Relations Board, 181

Ill. 2d 191, 204, 692 N.E.2d 295 (1998). Rulings on questions of fact will be reversed only

if they are against the manifest weight of the evidence, while questions of law are reviewed

de novo. City of Belvidere, 181 Ill. 2d at 204-05. Where, as here, the question presented

involves a mixed question of law and fact, the clearly erroneous standard is applied. Board

of Trustees of the University of Illinois v. Illinois Labor Relations Board, 224 Ill. 2d 88, 97,

862 N.E.2d 944 (2007) (citing City of Belvidere, 181 Ill. 2d at 205). The clearly erroneous

standard accords substantial deference to the administrative decision, in acknowledgment of

the agency’s experience and expertise in resolving matters within its purview. AFM

Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 394-95, 763

N.E.2d 272 (2001); see also Central City, 149 Ill. 2d at 523. An administrative decision “will

be deemed [to be] ‘clearly erroneous’ only where the reviewing court *** is ‘left with the

definite and firm conviction that a mistake has been committed.’ ” AFM Messenger Service,

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Inc., 198 Ill. 2d at 395 (quoting United States v. United States Gypsum Co., 333 U.S. 364,

395 (1948)); see also Board of Trustees, 224 Ill. 2d at 97-98.

¶ 19 The Lodge initially argues that the Board clearly erred in finding that the decision to

consolidate the field training districts was not a mandatory subject of bargaining. We

disagree.

¶ 20 Section 4 of the Act requires public employers to bargain collectively with regard to

policy matters directly affecting wages, hours and terms and conditions of employment as

well as the impact thereon. 5 ILCS 315/4 (West 2010). Section 7 of the Act states that a

public employer and the exclusive representative have the authority and the duty “to bargain

collectively,” which means the performance of the mutual obligation of the public employer

and the representative of the public employees to meet at reasonable times, including

meetings in advance of the budget-making process, and to negotiate in good faith with

respect to wages, hours, and other conditions of employment. 5 ILCS 315/7 (West 2010).

Sections 10(a)(1) and 10(a)(4) provide that it is an unfair labor practice for an employer or

its agents to interfere with, restrain or coerce public employees in the exercise of the rights

guaranteed by the Act or 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.

5 ILCS 315/10(a)(1), (a)(4) (West 2010).

¶ 21 In Central City, our supreme court articulated a three-part test for determining whether

a particular issue is a mandatory subject of bargaining. See Central City, 149 Ill. 2d at 523.

The first prong of the test concerns whether the matter is one of “wages, hours and terms and

conditions of employment.” Central City, 149 Ill. 2d at 523. If it is not, then the employer

has no duty to bargain over the matter. Central City, 149 Ill. 2d at 523. If it is, then the

second part of the test requires a determination of whether the matter is also one of “inherent

managerial authority.” Central City, 149 Ill. 2d at 523. If it is not, then the inquiry ends

because the matter is a mandatory subject of bargaining. Central City, 149 Ill. 2d at 523. If

the matter is one of “inherent managerial authority,” then the benefits that bargaining will

have on the decision-making process must be balanced against the burdens that bargaining

would impose on the employer’s authority. Central City, 149 Ill. 2d at 523. The

determination of whether specific issues are mandatory subjects of bargaining is best left to

the Board, which has the knowledge and experience to balance the equities in a given case.

See Central City, 149 Ill. 2d at 522-23.

¶ 22 In this case, the parties stipulated that the decision to consolidate the field training

districts is a matter involving wages, hours and terms and conditions of employment. In

accordance with that stipulation, the Board found that the first step of the Central City test

has been satisfied.

¶ 23 With regard to the second step of the Central City analysis, the Board was obligated to

consider whether the consolidation decision involves a matter of inherent managerial

authority. Section 4 of the Act states, in relevant part, as follows:

“Employers 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,

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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

2010).

This statutory list is not exhaustive, but it establishes the characteristics of managerial rights

that are not subject to mandatory bargaining. Board of Trustees, 224 Ill. 2d at 104. The

supreme court has recognized that “inherent managerial authority” consists of “those matters

residing at the core of entrepreneurial control. [Citation.]” (Internal quotation marks

omitted). Board of Trustees, 224 Ill. 2d at 97; see also Central City, 149 Ill. 2d at 518.

¶ 24 Here, the evidence presented at the hearing established that the consolidation and

realignment of field training districts was designed to improve the quality of training for

probationary employees by ensuring that new police officers are better able to handle all

types of the policing situations that they are likely to encounter. As such, the consolidation

decision fell within the core of the City’s right to control its operational needs regarding the

most effective and efficient way to enhance and broaden the spectrum of training new

recruits. See Board of Trustees, 224 Ill. 2d at 104; see also Metropolitan Alliance of Police,

Bensenville Police Chapter #165, 19 PERI ¶ 119 (ILRB State Panel 2003) (in which the

Board recognized that the decision to cross-train police officers as firefighters and emergency

medical technicians concerns a matter of inherent managerial authority). The subsequent

reassignment or resignation of FTOs constituted an effect of the consolidation decision and

did not bring that decision within the provisions of the collective bargaining agreement

governing the compensation of FTOs and the seniority-based bidding procedure under which

such assignments are made. Thus, the record supported the Board’s determination that the

means of improving the quality of training of probationary employees is a matter of inherent

managerial authority. In light of this evidence, we conclude that the Board did not clearly err

in finding that the consolidation decision fell within the City’s inherent managerial authority.

¶ 25 Having found that the first two steps in the Central City test are satisfied, the Board

balanced the benefits that bargaining would have on the decision-making process against the

burdens that bargaining would impose upon the City’s managerial authority. The Board noted

that the issue of where probationary employees receive training is a component of how to

provide such training to those employees and concluded that the benefits of bargaining on

the process of deciding the optimal method and means of training new officers were

outweighed by the burdens that bargaining would impose on the City’s inherent managerial

authority. Contrary to the Lodge’s argument that it could have offered proposals aimed at

eliminating the reassignment and resignation of existing FTOs, we agree with the Board and

the City that any such proposals would relate only to the effect of the consolidation decision,

rather than the consolidation itself. Also, though the Lodge submitted a proposal to expand

the number of training districts to all 25 Department districts prior to the consolidation, the

purpose of this proposal was to further the interests of the FTOs, as opposed to improve the

training of new recruits. Based on this record, we perceive no clear error in the Board’s

balancing of the effect of bargaining on the decision-making process.

¶ 26 The Lodge further complains that the Board did not give specific reasons for finding that

the burdens on the City’s inherent managerial control outweigh the benefits of bargaining on

the decision-making process. We note, however, that an administrative agency is not required

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to articulate each and every facet of its deliberative process as long as the reasoning

underlying the agency’s decision may be discerned. See generally Siddiqui v. Department of

Professional Regulation, 307 Ill. App. 3d 753, 759, 718 N.E.2d 217 (1999); see also J.S.

Masonry, Inc. v. Industrial Comm’n, 369 Ill. App. 3d 591, 598, 861 N.E.2d 202 (2006).

Here, the Board’s decision sufficiently articulated the considerations underlying its balancing

of the relative benefits and burdens of bargaining, and we cannot say that its finding in this

regard is clearly erroneous.

¶ 27 Finally, the Lodge claims that the Board erred in finding that it had waived the claim that

the City violated its duty to bargain over the effects of the realignment decision. Again, we

disagree.

¶ 28 Section 11(a) of the Act specifically provides that, where a complaint for hearing has

been issued by the Board, or its designated officer, “such complaint may be amended by the

*** hearing officer conducting the hearing for the Board in his discretion at any time prior

to the issuance of an order based thereon.” 5 ILCS 315/11(a) (West 2010).

¶ 29 In this case, neither the charge filed by the Lodge nor the complaint for hearing filed by

the executive director of the Board alleged that the City had violated the Act by failing to

bargain over the effects of the consolidation decision, and the Lodge never requested that the

complaint be amended to include such a claim. In challenging the finding of waiver, the

Lodge relies primarily on the comments made by its attorney during his opening statement

before the ALJ. As noted above, counsel for the Lodge made reference to the fact that FTOs

who are not assigned to the consolidated training districts were required to transfer to those

districts or to resign their FTO positions and that the transfer of FTO officers into new

districts involves wages, hours, and working conditions. Counsel also stated that the

“changes in the working conditions of the FTOs were implemented without bargaining with

the Lodge. *** The evidence will establish these violations ... .” Yet, when counsel for the

City sought to elicit testimony from Commander O’Neill to establish that it had bargained

over the effects of the consolidation decision, the Lodge’s attorney objected on the ground

that such testimony was irrelevant to the charge at issue.

¶ 30 Thus, the record affirmatively demonstrates that the Lodge sought to exclude certain

testimony based on the fact that the issue of effects bargaining was not pending before the

ALJ. Indeed, during a protracted discussion of that very point, counsel for the City

specifically referenced the Lodge’s opening statement as the source of her confusion on the

relevance of effects bargaining, and the Lodge’s attorney reasserted his relevancy objection.

Consequently, to the extent that comments made during the Lodge’s opening statement could

be interpreted to indicate that effects bargaining was at issue, that position was subsequently

disavowed at the evidentiary portion of the hearing. Based on this record, we cannot say that

the Board clearly erred in finding that the Lodge had waived the claim that the City violated

the Act by failing to bargain over the effects of the consolidation decision.

¶ 31 For the foregoing reasons, the decision of the Board is confirmed.

¶ 32 Confirmed.

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