Village of North Riverside v. Illinois Labor Relations Board

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Appellate Court Date: 2017.12.07

12:06:58 -06'00'

Village of North Riverside v. Illinois Labor Relations Board, State Panel,

2017 IL App (1st) 162251

Appellate Court THE VILLAGE OF NORTH RIVERSIDE, Petitioner, v. THE

Caption ILLINOIS LABOR RELATIONS BOARD, STATE PANEL, an

Illinois Administrative Agency, JOHN J. HARTNETT, MICHAEL

COLI, JOHN R. SAMOLIS, KEITH A. SNYDER, and ALBERT

WASHINGTON, in Their Official Capacities, NORTH RIVERSIDE

FIREFIGHTERS AND LIEUTENANTS UNION LOCAL 2714

INTERNATIONAL ASSOCIATION OF FIREFIGHTERS AFL-

CIO, CLC, Respondents.

District & No. First District, Third Division

Docket No. 1-16-2251

Filed September 29, 2017

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

Review Panel, No. S-CA-15-032.

Judgment Affirmed.

Counsel on Cary A. Horvath and George R. Robinson, of Odelson & Sterk Ltd., of

Appeal Evergreen Park, for petitioner.

Lisa Madigan, Attorney General, of Chicago (David L. Franklin,

Solicitor General, and Sharon A. Purcell, Assistant Attorney General,

of counsel), for respondent Illinois Labor Relations Board, State

Panel, et al.

J. Dale Berry and Elisa Redish, of Cornfield & Feldman LLP, of

Chicago, for other respondent.

Panel JUSTICE LAVIN delivered the judgment of the court, with opinion.

Presiding Justice Cobbs and Justice Fitzgerald Smith concurred in the

judgment and opinion.

OPINION

¶1 This appeal arises from a decision of the Illinois Labor Relations Board, State Panel

(ILRB), which determined that the Village of North Riverside (Village) committed unfair

labor practices against the North Riverside Firefighters and Lieutenants Union Local 2714

International Association of Firefighters AFL-CIO, CLC (Union). Specifically, the ILRB

found that while the Union was pursuing interest arbitration, the Village improperly notified

the Union that the parties’ collective bargaining agreement (CBA) would be terminated.

¶2 On appeal, the Village contends that the ILRB’s decision rests on a misinterpretation of the

Illinois Public Labor Relations Act (Act) (5 ILCS 315/1 et seq. (West 2014)). The Village

argues that an employer’s tender of termination notice under section 7 of the Act (5 ILCS

315/7 (West 2014)) negates any obligation for the employer to maintain the status quo through

the conclusion of interest arbitration under section 14 (5 ILCS 315/14 (West 2014)). The

Village also asserts that the notice tendered did not change employment terms during interest

arbitration and challenges the ILRB’s determination that the Village interfered with Union

activities. We disagree and affirm the ILRB’s decision.

¶3 I. Background

¶4 The Village and the Union were parties to a CBA set to expire on April 30, 2014. Section

24.2 of the CBA stated, “this Agreement shall remain in full force and effect after any

expiration date while negotiations or resolution of impasse proceedings for a new or amended

agreement, or any part thereof, are under way between the parties.” In January and February

2014, shortly before the parties’ contract was to expire, the Union made two demands to begin

bargaining. Bargaining did not begin, however. In March 2014, the Union and the Village

requested mediation. See 5 ILCS 315/14(j) (West 2014) (stating that “[a]rbitration procedures”

are “initiated by *** requesting mediation as required under subsection (a) of this Section”).

¶5 Meanwhile, the Village asked Paramedic Services of Illinois, Inc. (PSI) to submit a

proposal for providing firefighting services. PSI already provided the Village with paramedic

services. On June 18, 2014, the Village informed its residents by letter that the Village was

seeking a proposal from PSI to provide fire protection services on the condition that PSI retain

all current firefighters, “preserving their current base salaries, earned pension benefits and

current health insurance, while allowing the Village to substantially reduce the adverse impact

of future pension obligations imposed by the State.” The letter stated that PSI would be “an

excellent solution” to the Village’s operating budget deficit of $1.9 million, $1.8 million of

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which was “a direct result of the Village’s growing public pension obligation, which [the

Village has] not fully funded.”1 Although not stated in the letter, the Village anticipated that

subcontracting with PSI would save the Village over $700,000 per year.

¶6 The Village finally began negotiating with the Union on June 24, 2014.2 Following the

first meeting, the Union’s objective was to attempt to match the approximate $700,000 in

savings that the Village would realize from privatizing services through PSI. The Union

members also signed a declaration stating they would at no time accept employment with PSI.

More meetings followed, and mediation eventually occurred. Proposals and counter-proposals

were made. The Village disputed, however, that the Union’s proposals would achieve the same

savings as privatization through PSI and otherwise found the Union’s proposals undeveloped

or unfeasible.

¶7 At a meeting with the mediator on September 3, 2014, the Village proposed an 11-year

contract providing that as Union members retired, they would be replaced by PSI employees.

Within the week, the Union submitted (1) a reiterated prior offer, (2) a new offer dependent on

privatization through a corporation yet to be formed by the Union, and (3) a new offer to form

a regional fire protection agency, which depended on a Village referendum. According to the

Village, the parties reached an impasse and completed mediation that day, September 9, 2014.

Three days later, the Village filed an action in the circuit court (No. 14 CH 14774) seeking a

declaration that the Village’s financial circumstances permitted it to outsource its fire

protection services, that neither the parties’ expired CBA nor the Act prevented the decision to

outsource, and that the decision was “based on a good faith legislative finding of economic

necessity.”

¶8 Less than a week later, the Union filed an unfair labor charge with the ILRB, arguing that

the Village failed to bargain in good faith and interfered with Union members’ protected

activities. On September 19, 2014, the Union also filed a demand for compulsory interest

arbitration with the ILRB. See 5 ILCS 315/14 (West 2014). The ILRB subsequently denied the

Village’s request to hold interest arbitration in abeyance until the court resolved the Village’s

declaratory judgment action.

¶9 Meanwhile, on October 6, 2014, the Village presented Union members with a letter and

accompanying notice that are central to this dispute. The letter stated that the Village was

“again offering full employment opportunity for the Firefighters and Lieutenants through PSI.

As initially proposed, PSI will hire all members of the bargaining unit at their current base

salary, provide the same health care, as well as beginning a 401k pension plan.” The letter

added that “although the enclosed Notice terminates all employment of the bargaining unit

members pursuant to statute and the contract,” the firefighters would remain in their positions

until the court made a determination in the declaratory judgment action. Furthermore, the

enclosed “notice of collective bargaining termination,” purportedly issued pursuant to section

7 of the Act (5 ILCS 315/7 (West 2014)), informed the Union that the CBA “and all of its

1

In October 2014, the Director of the Illinois Department of Insurance found the Village violated

the Illinois Pension Code (40 ILCS 5/4-118 (West 2014)) by failing to annually levy a tax sufficient to

satisfy the annual actuarial requirements of the pension fund. The director also found the Village's

decision to underfund those pension funds constituted a conscious choice.

2

The parties dispute whether the Union agreed to wait to begin negotiations until after the Village

completed negotiations with the police union.

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provisions” would terminate effective December 5, 2014. The Village added that it would meet

with the Union to “confer and bargain concerning the impact of this termination.”

¶ 10 In December, the ILRB issued a complaint for hearing, which recited the Union’s

allegation that the Village improperly issued termination notice and failed to maintain existing

employment terms and conditions. In response, the Village argued that section 7 of the Act

required the Village to issue the notice in question and, in any event, the Village had

maintained employment terms and negotiated in good faith. On January 22, 2015, the parties

proceeded to arbitration, but the arbitrator stayed those proceedings pending the circuit court’s

resolution of the declaratory judgment action. The court dismissed the Village’s complaint

with prejudice for lack of jurisdiction in October 2015, and the Village appealed. We recently

affirmed that judgment. See Village of North Riverside v. North Riverside Firefighters &

Lieutenants Union Local 2714, 2017 IL App (1st) 152900-U.

¶ 11 While that appeal was pending, a four-day evidentiary hearing on the ILRB complaint

commenced before administrative law judge (ALJ) Anna Hamburg-Gal in December 2015.

Three months later, she issued a recommended decision and order (RDO), finding that the

Village violated sections 10(a)(1) and 10(a)(4) by engaging in surface bargaining regarding the

Village’s proposal to privatize fire services. 5 ILCS 315/10(a)(1), (a)(4) (West 2014). The ALJ

also found the Village violated those subsections and section 14(l) by unilaterally altering

terms and conditions of employment when it issued the notice of termination while interest

arbitration was pending. Id.; 5 ILCS 315/14(l) (West 2014). The ALJ rejected the Village’s

contention that because all employees remained in their positions, the Village made no

changes to employment conditions. Specifically, the Village notified the firefighters that the

existing employment terms would terminate, notwithstanding that the Village chose to delay

implementing the termination of employment until the court ruled. Furthermore, by offering to

discuss the effects of the termination letter, the Village acknowledged that the letter constituted

a change. Finally, the ALJ determined that the Village interfered with, restrained, or coerced

Union members in their exercise of protected rights by issuing termination notice shortly after

the Union requested compulsory interest arbitration, in violation of section 10(a)(1). The ALJ

found the termination notice was issued, at least in part, because of the Union’s decision to

reject the Village’s final offer and demand compulsory interest arbitration.

¶ 12 The ILRB affirmed the ALJ’s decision, as modified. The ILRB rejected the ALJ’s finding

that the Village engaged in surface bargaining but agreed that the Village impermissibly

changed terms and conditions of employment while interest arbitration was pending by issuing

the notice of termination. The ILRB found that while section 7 of the Act generally set forth the

mechanism for terminating CBAs, protective services employees were also governed by

section 2 (5 ILCS 315/2 (West 2014)) and section 14 (5 ILCS 315/14 (West 2014)), which,

respectively, set forth the policy of providing an alternative dispute resolution method for

employees prohibited from striking and established interest arbitration. The ILRB stated that

while it appreciated the Village’s frustration at being required to go through interest

arbitration, section 14 created no exception for a financial crisis. See also Service Employees

International Union, Local 73, 33 PERI ¶ 49 (ILRB State Panel 2016) (finding that staggering

financial challenges facing employers are no less staggering for having resulted from poor

stewardship but section 14 presents no exception for an employer’s critical financial hardship).

The ILRB further concurred with the ALJ’s determination that the Village interfered with

protected rights in violation of section 10(a)(1) (5 ILCS 315/10(a)(1) (West 2014)) when it

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issued termination notices. The Village now appeals. See Foley v. American Federation of

State, County, & Municipal Employees, Council 31, Local No. 2258, 199 Ill. App. 3d 6, 10

(1990) (observing that final orders issued by the ILRB are appealed directly to the appellate

court).

¶ 13 II. Analysis

¶ 14 On appeal, the Village first asserts that the ILRB erroneously determined that the Village

violated sections 10(a)(1), 10(a)(4), and 14(l) of the Act by unilaterally changing terms and

conditions of employment when it issued termination notice under section 7. The Village

contends that issuing notice under section 7 cannot constitute an improper unilateral change

within the meaning of the Act because the Act requires employers seeking termination of a

CBA to tender such notice. Additionally, the Village argues that compliance with section 7’s

termination provisions excuses an employer from participating in interest arbitration under

section 14 or maintaining the status quo to the conclusion of interest arbitration.

¶ 15 Before determining whether the ILRB properly found the Village violated the Act, we

must first determine what the provisions of the Act require, a matter of statutory construction.

See Comprehensive Community Solutions, Inc. v. Rockford School District No. 205, 216 Ill. 2d

455, 473 (2005). We review the ILRB’s construction of the relevant statutes de novo.3 Id.

¶ 16 A. Statutory Construction

¶ 17 The cardinal rule of statutory interpretation is to effectuate the legislature’s intent, giving

language its plain and ordinary meaning. In re Marriage of Dougherty, 2017 IL App (1st)

161893, ¶ 7. Unambiguous language must be applied as written without regard to other rules of

statutory interpretation. Moore v. Green, 219 Ill. 2d 470, 479 (2006). That being said, courts

must consider all provisions of a statutory enactment together, rather than construing phrases

in isolation. Stern v. Wheaton-Warrenville Community Unit School District 200, 233 Ill. 2d

396, 410 (2009). Furthermore, courts defer to an agency’s construction of an ambiguous

statute (City of Freeport v. Illinois State Labor Relations Board, 135 Ill. 2d 499, 516 (1990)),

as the agency’s decisions are informed by its expertise and experience (State Department of

Central Management Services (Department of Corrections) v. State Labor Relations Board,

State Panel, 373 Ill. App. 3d 242, 249 (2007)).

¶ 18 B. The Procedures of the Act

¶ 19 The ILRB is charged with administering and enforcing the Act (City of Freeport, 135 Ill.

2d at 507), the purpose of which is to regulate labor relations in the public sector and resolve

disputes under CBAs (5 ILCS 315/2 (West 2014)). See also Board of Education of Springfield

Public Schools, District No. 186 v. Springfield Education Ass’n, 47 Ill. App. 3d 193, 197

(1977) (stating that a labor dispute exists where neither the union nor the employer have

accepted or compromised on demands impacting wages and conditions of employment). The

Act defines collective bargaining as “bargaining over terms and conditions of employment,

3

The standard of review depends on whether an issue is one of fact, is one of law, or presents a

mixed question of law and fact, notwithstanding our supreme court’s acknowledgement that it has not

always presented clear distinctions between these types of issues. Cinkus v. Village of Stickney

Municipal Officers Electoral Board, 228 Ill. 2d 200, 210-11 (2008).

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including hours, wages, and other conditions of employment, as detailed in Section 7 and

which are not excluded by Section 4.” 5 ILCS 315/3(b) (West 2014). Section 7 similarly

requires a public employer and union representative to negotiate in good faith over wages,

hours and employment terms (5 ILCS 315/7 (West 2014)), while section 4 generally excuses

employers from bargaining over inherent managerial policy (5 ILCS 315/4 (West 2014)). We

note that the Village does not dispute on appeal that privatization would constitute a mandatory

subject of bargaining had the Village not tendered termination notice under section 7.4

¶ 20 In a typical negotiation where the parties have reached an impasse, the employer can

unilaterally implement its final offer, and employees can strike. State Department of Central

Management Services (Department of Corrections), 373 Ill. App. 3d at 249, 253; see also

Skokie Firefighters Union, Local 3033 v. Illinois Labor Relations Board, State Panel, 2016 IL

App (1st) 152478, ¶ 18 (stating that parties reach an impasse when neither is willing to depart

from their respective positions). A community would be presented with a danger to its health

and safety, however, if the functions of certain “ ‘[e]ssential services employees’ ” were to

terminate. 5 ILCS 315/3 (West 2014). Firefighters provide such indispensable services. Board

of Education of Peoria School District No. 150 v. Peoria Federation of Support Staff,

Security/Policemen’s Benevolent & Protective Ass’n Unit No. 114, 2012 IL App (4th) 110875,

¶ 16, aff’d, 2013 IL 114853. Consequently, they are statutorily prohibited from striking. 5

ILCS 315/14(l), (m) (West 2014).

¶ 21 That being said, depriving firefighters of the right to strike disadvantages them in

bargaining with their employers. Board of Education of Peoria School District No. 150, 2012

IL App (4th) 110875, ¶ 16. Employees who lack the statutory right to strike “would not be on

equal footing with the employer were the employer to implement its final offer upon reaching

impasse.” State Department of Central Management Services (Department of Corrections),

373 Ill. App. 3d at 249, 253. Consequently, the legislature attempted to correct this imbalance

by affording those employees bargaining power to approximate the right to strike. Board of

Education of Peoria School District No. 150, 2012 IL App (4th) 110875, ¶ 16.

¶ 22 Section 2 of the Act states that “[t]o prevent labor strife and to protect the public health and

safety of the citizens of Illinois, all collective bargaining disputes involving persons designated

by the Board as performing essential services *** shall be submitted to impartial arbitrators,

who shall be authorized to issue awards in order to resolve such disputes.” 5 ILCS 315/2 (West

2014). Where an employee’s right to strike is prohibited by law, an “alternate, expeditious,

equitable and effective procedure” is required to resolve labor disputes. Id. In addition, the

4

Deciding whether a decision involves a mandatory subject of bargaining requires determining (1)

whether the matter involves wages, hours, employment terms and conditions and, if so, (2) whether the

matter also involves inherent managerial authority. City of Belvidere v. Illinois State Labor Relations

Board, 181 Ill. 2d 191, 205-06 (1998). If both inquiries are answered affirmatively, the benefits of

bargaining must be weighed against the burdens on the employer’s authority. Id. at 206; see also

Service Employees International Local Union No. 316 v. Illinois Educational Labor Relations Board,

153 Ill. App. 3d 744, 752-53 (1987) (finding that the Act requires employers and their employees’

representatives to bargain collectively about contracting out work that the employees of an existing

bargaining unit previously performed); Service Employees International Union, Local 73, 33 PERI

¶ 49 (finding the dissolution of a fire department constituted a mandatory subject of bargaining and the

employer was not entitled to implement its decision before the completion of interest arbitration under

section 14).

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provisions for such awards must be liberally construed to satisfy that requirement. Id. Thus, the

legislature has empowered firefighters through interest arbitration (Board of Education of

Peoria School District No. 150, 2012 IL App (4th) 110875, ¶ 16), which is found in section 14

of the Act.

¶ 23 Section 14, titled “Security Employee, Peace Officer and Fire Fighter Disputes,” provides

that the comprehensive procedure set forth therein begins with mediation. 5 ILCS 315/14(a)

(West 2014). Generally, if a dispute has not been resolved within 15 days of the parties’ first

meeting with the mediator, either party may request arbitration (id.), in which case the parties

must proceed to arbitration (5 ILCS 315/14(b), (c), (d) (West 2014)). Thus, section 14 gives

firefighters prohibited from striking a procedure to “engage in negotiation and mediation, and,

if no compromise can be reached, to compel arbitration.” (Emphasis added.) Skokie

Firefighters Union, Local 3033, 2016 IL App (1st) 152478, ¶ 3. This right, reserved for

employees prohibited from striking, reflects an economic quid pro quo. Board of Education of

Peoria School District No. 150, 2012 IL App (4th) 110875, ¶ 16. Of particular relevance here,

section 14(l) states that “[d]uring the pendency of proceedings before the arbitration panel,

existing wages, hours, and other conditions of employment shall not be changed by action of

either party without the consent of the other.” 5 ILCS 315/14(l) (West 2014). An employer’s

unilateral change to employment conditions and terms constitutes an unfair labor practice

because such unilateral actions deprive employees of their right to bargain. Board of Education

of Sesser-Valier Community Unit School District No. 196 v. Illinois Educational Labor

Relations Board, 250 Ill. App. 3d 878, 882 (1993). Furthermore, “[g]ood faith bargaining,

within the meaning of the Act, does not end at impasse; it continues through interest arbitration

and the ultimate issuance of an award.” American Federation of State, County & Municipal

Employees, Council 31, 22 PERI ¶ 10 (ILRB State Panel 2005).

¶ 24 The Village nonetheless asserts that an employer’s tender of termination notice under

section 7 negates the requirements of section 14, so long as section 7’s termination

prerequisites have been satisfied. Section 7 states, in pertinent part, as follows:

“The duty ‘to bargain collectively’ shall also mean that no party to a collective

bargaining contract shall terminate or modify such contract, unless the party desiring

such termination or modification:

(1) serves a written notice upon the other party to the contract of the proposed

termination or modification 60 days prior to the expiration date thereof, or in the event

such contract contains no expiration date, 60 days prior to the time it is proposed to

make such termination or modification;

(2) offers to meet and confer with the other party for the purpose of negotiating a

new contract or a contract containing the proposed modifications;

(3) notifies the Board within 30 days after such notice of the existence of a dispute,

provided no agreement has been reached by that time; and

(4) continues in full force and effect, without resorting to strike or lockout, all the

terms and conditions of the existing contract for a period of 60 days after such notice is

given to the other party or until the expiration date of such contract, whichever occurs

later.” (Emphasis added.) 5 ILCS 315/7 (West 2014).

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While both section 7 and section 14(l) require an employer to maintain the status quo, section

14(l) imposes a duty to maintain the status quo through the conclusion of interest arbitration,

which will generally be longer than the period called for under section 7.5

¶ 25 Having considered the statutory scheme in place, we find the plain language of section 7

does not authorize an employer such as the Village to unilaterally terminate a CBA while

interest arbitration with essential services employees is pending. First, section 7’s termination

provision does not confer a right upon an employer; rather, it imposes several duties. In

addition, that provision purports to define what the duty to engage in collective bargaining

“shall also mean” (emphasis added) (id.), demonstrating that other provisions of the Act may

impose additional, more stringent duties. While section 7 prevents a party from terminating a

CBA unless its requirements are satisfied, that statute does not state that satisfying its

requirements will in all instances permit an employer to terminate a CBA. The language of

section 7 does not support the Village’s contention that “[a] public employer’s obligation to

maintain the status quo under Section 14(l) is extinguished once a public employer properly

acts under Section 7.” The same is true of the ILRB’s rule governing notice under section 7 as

it applies to employees statutorily prohibited from striking. 80 Ill. Adm. Code 1230.50 (2003).

Similarly, section 14(l)’s requirement that parties maintain the status quo through the

conclusion of interest arbitration does not expressly create an exception for an employer who

has tendered notice of a proposed termination. Evanston Insurance Co. v. Riseborough, 2014

IL 114271, ¶ 15 (stating that courts may not read unexpressed limitations into an unambiguous

statute); see also Skokie Firefighters Union, Local 3033, 2016 IL App (1st) 152478, ¶ 18

(stating that sections 7 and 14 of the Act contemplate that arbitration be used to resolve

impasses).6

¶ 26 Even assuming that the plain language of section 7 could be read to grant employers an

unfettered right to terminate CBAs, we would reach the same result. A general statute with

inclusive language will not apply to a matter specifically addressed in a different provision of

the same enactment. People ex rel. Madigan v. Burge, 2014 IL 115635, ¶ 31. This canon of

construction most frequently applies where a statute granting a general permission or

prohibition is contradicted by a statute containing a specific permission or prohibition. Id.

Because section 14 specifically grants employees prohibited from striking the right to pursue

interest arbitration, that section would control over a statute generally granting employers the

right to terminate CBAs and forgo interest arbitration.

¶ 27 Section 2 also compels this determination. It expressly states that disputes involving such

employees prohibited from striking “shall be submitted to impartial arbitrators,” as an

“alternate, expeditious, equitable and effective procedure” to resolve disputes. 5 ILCS 315/2

(West 2014). Allowing employers to terminate a CBA and refuse to proceed to interest

arbitration with firefighters would contradict the letter and spirit of the Act. No quid pro quo

5

Section 7’s prohibition on strikes and lockouts, while not meaningless, will generally have no

practical effect on parties already prohibited from engaging in such conduct.

6

We categorically reject the Village’s assertion section “14(l) only identifies a point in time when

the obligation is triggered and includes no definite point when this obligation ends.” Section 14(l) states

that the employer must maintain the status quo “[d]uring the pendency of proceedings before the

arbitration panel,” thereby identifying both the beginning and the end of the employer’s obligation. 5

ILCS 315/14(l) (West 2014).

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would be achieved, and employers would hold power greatly disproportionate to that held by

the firefighters. See American Federation of State, County & Municipal Employees, 22 PERI

¶ 10 (if employers were allowed to implement their final offer while employees were denied

the right to strike, section 14 employees would have fewer rights than employees entitled to

strike, and the balance of power would impermissibly shift toward the employers). As the

ILRB observes, employers would essentially have discretion to decide whether arbitration

could proceed. If an employer preferred that it not, the employer need only tender notice of

termination. Although the Village argues that section 2 does not state that a “public employer’s

choice to forgo dispute resolution procedures and implement Section 7 notice and termination

procedures constitutes an unfair labor practice,” the Village has failed to show that employers

have that choice in the first instance.

¶ 28 Impartial arbitrators are well equipped to resolve collective bargaining disputes. Section

14(h) states that where the parties have begun negotiations looking toward a new or amended

agreement and the parties dispute employment conditions, the arbitration panel must consider

factors including the employer’s lawful authority, the “interests and welfare of the public and

the financial ability of the unit of government to meet those costs.” 5 ILCS 315/14(h)(3) (West

2014). Additionally, an arbitrator can consider an employer’s financial ability to satisfy its

pension obligations. International Ass’n of Firefighters Local 49 v. City of Bloomington, 2016

IL App (4th) 150573, ¶ 30. Thus, arbitrators are directed to consider factors relevant to

privatizing fire services.

¶ 29 The Village correctly observes that section 14(h) refers to the parties looking toward a new

or amended agreement but does not refer to the parties negotiating toward a complete

severance of any contractual relationship. Contrary to the Village’s suggestion, however, this

omission does not prohibit an arbitration award terminating a CBA. Instead, it merely reflects

that Unions generally bargain toward preserving their statutory and contractual power and

section 10(a)(4) requires employers “to bargain collectively in good faith,” which cannot be

fulfilled if an employer will consider nothing less than termination. 5 ILCS 315/10(a)(4) (West

2014). Furthermore, the termination provision of section 7 itself requires that employers

proposing termination offer “to meet and confer with the other party for the purpose of

negotiating a new contract or a contract containing the proposed modifications.” 5 ILCS 315/7

(West 2014). While the goal of arbitration is to reach an agreement, section 14(h) does not

prevent an interest arbitrator from determining that the circumstances presented justify an

award permitting an employer to sever any contractual relationship with the Union.

¶ 30 Similarly, section 14(i) does not prevent an arbitrator from finding termination is

appropriate. 5 ILCS 315/14(i) (West 2014). That statute states that “[i]n the case of fire fighter

*** matters, the arbitration decision shall be limited to wages, hours, and conditions of

employment.” Id. To state the obvious, the very existence of employment is perhaps the most

significant condition of employment. Thus, the categorical elimination of employment, a CBA

and every condition thereof, falls within the purview of the arbitrator’s decision.

¶ 31 We further reject the Village’s assertion that the ILRB’s decision constitutes improper

legislation because it grants essential services employees a special privilege denied to the

majority of public employees. First, the Village has forfeited this contention by failing to raise

it before the administrative agency. Crowley v. Board of Education of the City of Chicago,

2014 IL App (1st) 130727, ¶ 35; cf. Church v. State, 164 Ill. 2d 153, 164 (1995) (rejecting the

contention that the plaintiff forfeited his constitutional argument in the circuit court where his

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pleading filed in that court adequately raised the issue). More importantly, the Village’s

contention is without merit.

¶ 32 “The General Assembly shall pass no special or local law when a general law is or can be

made applicable. Whether a general law is or can be made applicable shall be a matter for

judicial determination.” Ill. Const. 1970, art. IV, § 13. This provision is intended to prevent

arbitrary classifications that favor a select group without a reasonable basis for doing so.

Moline School District No. 40 Board of Education v. Quinn, 2016 IL 119704, ¶ 18. Stated

differently, the constitution only prohibits special legislation when a general law would

equally suffice. Id. ¶ 22. “If an entity is uniquely situated, the special legislation clause will not

bar the legislature from enacting a law tailored specifically to address the conditions of that

particular entity.” (Emphasis omitted.) Id. Thus, courts must determine (1) whether the

statutory classification discriminates in favor of one group and, if so, (2) whether the

classification is arbitrary. Id. ¶ 23.

¶ 33 Here, section 14 favors essential services employees, including firefighters, to the

exclusion of other public employees. This classification is far from arbitrary, however. Section

14 ensures that firefighters have the ability to bargain with employers. Other employees who

possess the right to strike already have bargaining power and, thus, do not require additional

economic weapons.

¶ 34 We also reject the Village’s contention that requiring it to submit to interest arbitration

before terminating its relationship with the Union violates Illinois public policy favoring the

freedom to contract. See Jespersen v. Minnesota Mining & Manufacturing Co., 183 Ill. 2d 290,

295 (1998) (finding that perpetual contracts are disfavored); Hussein v. L.A. Fitness

International, L.L.C., 2013 IL App (1st) 121426, ¶ 11 (observing that public policy in Illinois

strongly favors parties’ freedom to contract). The Village has failed to cite any authority

supporting its suggestion that this policy may never be outweighed by more important

considerations. Ill. S. Ct. R. 341(h)(7) (eff. Jan. 1, 2016). Additionally, it is well settled that

CBAs are not ordinary contracts. See Thompson v. Policemen’s Benevolent Labor Committee,

2012 IL App (3d) 110926, ¶ 12; see also John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543,

550-51 (1964) (“While the principles of law governing ordinary contracts would not bind to a

contract an unconsenting successor to a contracting party, a collective bargaining agreement is

not an ordinary contract.”). In any event, the Act does not create a perpetual contract. Instead, it

merely prevents an employer from unilaterally terminating its contractual relationship without

an independent party determining that the factors involved, including the public’s welfare and

the government’s financial position (5 ILCS 315/14(h) (West 2014)), justify that decision.

Furthermore, section 24.2 of the parties’ CBA defines when the CBA ends. Specifically, the

parties’ contractual relationship ends, or is replaced with a new contractual relationship, when

“negotiations or resolution of impasse proceedings” are concluded. We are not persuaded by

the Village’s position.

¶ 35 C. The Village’s Unilateral Change

¶ 36 Having established what the Act requires, we now determine whether the ILRB properly

determined that the Village’s conduct in this instance violated the Act. Examining the legal

effect of given facts presents a mixed question of law and fact. Cinkus v. Village of Stickney

Municipal Officers Electoral Board, 228 Ill. 2d 200, 211 (2008). A decision examining that

effect will not be modified unless clearly erroneous. Id. Accordingly, we will not alter the

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ILRB’s decision unless it was clearly erroneous, which occurs only where the reviewing court

holds the definite conviction that a mistake has been made. Board of Education of the City of

Chicago v. Illinois Educational Labor Relations Board, 2015 IL 118043, ¶ 16. We find no

mistake was made in this instance.

¶ 37 Pursuant to section 10(a)(4), an employer at impasse cannot make unilateral changes to the

conditions and terms of employment. International Ass’n of Fire Fighters, Local 95, 25 PERI

¶ 169 (ILRB State Panel 2009). Additionally, section 14(l) extends this prohibition to the

conclusion of the requisite impasse procedures for firefighters set forth in section 14. Id.; 5

ILCS 315/14(l) (West 2014)) (stating that “existing *** conditions of employment shall not be

changed by action of either party without the consent of the other”). To alter terms and

conditions of employment during that period violates section 10(a)(4). International Ass’n of

Fire Fighters, Local 95, 25 PERI ¶ 169.

¶ 38 First, we reject the Village’s contention that it did not issue the October 6, 2014, letter and

accompanying notice “[d]uring the pendency of proceedings before the arbitration panel” and,

thus, did not violate the Act. See 5 ILCS 315/14(l) (West 2014). Section 14(l) states that

“proceedings are deemed to be pending before the arbitration panel upon the initiation of

arbitration procedures under this Act.” Id. In turn, “[a]rbitration procedures” are initiated by

“requesting mediation as required under subsection (a) of this Section.” See 5 ILCS 315/14(j)

(West 2014). Consequently, arbitration procedures began and proceedings were pending

before the arbitration panel when the parties submitted a request for mediation in March 2014,

well before the Village issued notice that it was terminating the CBA. International Ass’n of

Firefighters, Local 23, 30 PERI ¶ 67 (ILRB State Panel 2013). Once again, the Village’s

argument results from an isolated reading of one provision within a comprehensive act.

¶ 39 Here, the Village purported to issue a letter and notice pursuant to section 7. That section

contemplates notice of a “proposed termination.” (Emphasis added.) 5 ILCS 315/7 (West

2014). Yet, the Village’s letter unequivocally stated that the accompanying notice “terminates

all employment of the bargaining unit members pursuant to statute and the contract,”

indicating that the employment terms recited in the CBA would no longer be honored. In

addition, the notice identified December 5, 2014, as the effective termination date. Although

the Village’s letter apparently volunteered that the Union members would remain in their

positions until the circuit court ruled on the declaratory judgment action, the letter did not

acknowledge any legal duty to do so. Knowing that one serves solely at the pleasure of his

master hardly provides the job security contemplated by the Act and the parties’ CBA, both of

which required the Village to leave the employees’ positions, the CBA and all bargained-for

terms intact. Furthermore, the Village stated that the employees would remain in their

positions but did not state that it would continue to adhere to the terms of the CBA.

¶ 40 The Village’s offer to meet with the Union to discuss the impact of this fait accompli also

showed that the Village knew it had effectuated a change, notwithstanding that the Village

argues it was merely complying with section 7’s requirement that a party desiring termination

“offer[ ] to meet and confer with the other party for the purpose of negotiating a new contract

or a contract containing the proposed modifications” (emphasis added) (5 ILCS 315/7 (West

2014)). See also Wapella Education Ass’n v. Illinois Educational Labor Relations Board, 177

Ill. App. 3d 153, 168 (1998) (suggesting that a change occurs when an employer

unambiguously announces a change in policy, not when the policy change is implemented,

“since the claimed unfair labor practice is the unilateral change in policy not its application to

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particular individuals per se”). The Village offered “to confer and bargain concerning the

impact of this termination,” not for the purpose of negotiating a new contract or proposed

modification. We find the Village’s contention to be disingenuous.

¶ 41 Here, the Village issued notice of termination, not notice of a proposed termination

pursuant to section 7. By doing so, the Village unilaterally altered the terms of employment.7

¶ 42 D. Interference With Union Activities

¶ 43 Finally, the Village asserts that the ILRB improperly determined that the Village interfered

with employees in the exercise of their protected rights when the Village issued the termination

notice following the Union’s demand for interest arbitration because the record does not show

the Village acted from an improper motivation.

¶ 44 Section 10(a)(1) states, in pertinent part, that “[i]t shall be 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 in this Act.” 5 ILCS 315/10(a)(1) (West 2014). Employees can

establish a prima facie violation of section 10(a)(1) by showing that (1) they were engaged in

statutorily protected activity, (2) their employer knew of the nature of such conduct, and (3)

their employer acted against them for discriminatory reasons, “i.e., animus toward [their]

participation in such activities.” Pace Suburban Bus Division of the Regional Transportation

Authority v. Illinois Labor Relations Board, State Panel, 406 Ill. App. 3d 484, 494-95 (2010).

With respect to the last requirement, a party may alternatively show that the employee’s

exercise of protected conduct was a motivating or substantial factor leading to the adverse

action. City of Burbank v. Illinois State Labor Relations Board, 128 Ill. 2d 335, 345 (1989); see

also Pace Suburban Bus Division of the Regional Transportation Authority, 406 Ill. App. 3d at

496 (stating that “[r]equiring the employee to also prove [under section 10(1)] that her

employer’s actions were motivated by animus toward the union would unduly burden an

employee seeking redress against an employer interfering with those rights”). Because motive

presents a factual question, the ILRB can infer discriminatory motive from direct or

circumstantial evidence. City of Burbank, 128 Ill. 2d at 345. The ILRB’s finding in this regard

must be accepted if supported by substantial evidence. Id. Once a prima facie case is made, the

employer has the burden of advancing a legitimate reason for its conduct. County of Cook v.

Illinois Labor Relations Board, Local Panel, 2012 IL App (1st) 111514, ¶ 25.

¶ 45 We reject the Village’s contention that the Union’s evidence did not support the conclusion

that the termination letter and notice were motivated by animus against the Union or resulted

from the Union’s exercise of protected conduct. We find the record supports the ILRB’s

determination that the Village sent termination notice, at least in part, because the Union

exercised its statutory right to interest arbitration.

¶ 46 According to the Village, the parties reached an impasse on September 9, 2014. Three days

later, the Village filed its circuit court complaint seeking a declaration that (1) the Village’s

financial circumstances permitted it to outsource its fire protection services, (2) neither the

parties’ expired CBA nor the Act prevented the decision to outsource, and (3) the decision was

“based on a good faith legislative finding of economic necessity.” Yet the Village did not at

that time tender its termination notice.

7

We also observe that the notice was tendered well after the CBA’s expiration date, not 60 days

before. See 5 ILCS 315/7 (West 2014).

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¶ 47 On September 19, 2014, the Union filed a demand for compulsory interest arbitration with

the ILRB, thereby exercising rights protected by the Act. Two weeks later, the Village

tendered termination notice, only after the Union sought arbitration. The Village essentially

shifted from seeking a declaration that the Village had the right to terminate the CBA to

making the same declaration itself. Nothing pertinent had happened in the interim. We find

substantial circumstantial evidence supports the ILRB’s finding that the Village was motivated

to tender termination notice at least partly by the Union’s protected activity. The Village’s

concern with preserving its so-called authority to terminate the CBA was not significant

enough for it to tender notice before the Union sought interest arbitration. To the extent the

Village argues that it acted for the legitimate purpose of complying with section 7, we reiterate

that the notice tendered did more than satisfy section 7. That statute requires employers to

propose termination, not declare it. Accordingly, we affirm the ILRB’s decision.

¶ 48 III. CONCLUSION

¶ 49 Section 7 of the Act does not grant public employers the right to unilaterally terminate a

CBA with employees prohibited from striking. Such a right would destroy the balance of

power carefully constructed by the Act. By tendering the Union unequivocal notice that the

CBA and, consequently, all bargained-for terms would terminate, the Village unilaterally

changed terms of employment while interest arbitration was pending. Furthermore, the record

supports the ILRB’s determination that the Village issued that notice because the Union

exercised its right to interest arbitration.

¶ 50 For the foregoing reasons, we affirm the judgment of the ILRB.

¶ 51 Affirmed.

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