American Federation of State, County, and Municipal Employees v. The Illinois Labor Relations Board

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Appellate Court Date: 2018.01.22

13:23:05 -06'00'

American Federation of State, County, & Municipal Employees, Council 31 v.

Illinois Labor Relations Board, State Panel, 2017 IL App (5th) 160046

Appellate Court AMERICAN FEDERATION OF STATE, COUNTY, AND

Caption MUNICIPAL EMPLOYEES, COUNCIL 31, Petitioner, v. THE

ILLINOIS LABOR RELATIONS BOARD, STATE PANEL, and

THE STATE OF ILLINOIS DEPARTMENT OF CENTRAL

MANAGEMENT SERVICES, Respondents.

District & No. Fifth District

Docket No. 5-16-0046

Filed November 8, 2017

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

Review Panel, No. S-CA-16-007.

Judgment Reversed and remanded.

Counsel on Stephen A. Yokich and George A. Luscombe III, of Dowd, Bloch,

Appeal Bennett, Cervone, Auerbach & Yokich, of Chicago, for petitioner.

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

Solicitor General, and Frank H. Bieszczat, Assistant Attorney

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

State Panel.

Jeffrey S. Fowler and Lawrence J. Weiner, Special Assistant

Attorneys General, of Chicago, for other respondent.

Panel JUSTICE CHAPMAN delivered the judgment of the court, with

opinion.

Justices Goldenhersh and Cates concurred in the judgment and

opinion.

OPINION

¶1 The petitioner, the American Federation of State, County, and Municipal Employees,

Council 31 (AFSCME), appeals a decision of the Illinois Labor Relations Board (ILRB)

dismissing its unfair labor charge against the State of Illinois Department of Central

Management Services (CMS). The charge challenged a policy requiring employees to pay

the entire cost of their health insurance premiums for any pay period during which they go on

strike, even if they are not on strike for the entire pay period. The charge was dismissed

without a hearing. AFSCME argues that the ILRB abused its discretion because AFSCME

presented sufficient evidence to warrant a hearing on its claims that (1) the policy was a

unilateral change to a term of employment instituted at a time when the parties were in

negotiations for a new contract and (2) the policy improperly threatened to penalize

employees for lawfully exercising their right to strike.

¶2 After briefing was complete in this appeal, CMS filed motions asking this court to take

judicial notice of unrelated proceedings between the same parties pending in other courts. In

those proceedings, AFSCME argued that the procedures followed by the ILRB violated the

Open Meetings Act (5 ILCS 120/1 et seq. (West 2014)), which meant that its decision was

not a final order. In the motions to take judicial notice it filed in this case, CMS argued that

the position AFSCME took in the other proceedings was contrary to its assertion here that

this court has jurisdiction. CMS also filed a motion asking this court to remand this matter to

the ILRB to allow the ILRB to conduct additional proceedings that would eliminate any

Open Meetings Act problem. Although none of the parties challenge our jurisdiction over

this matter, the question of our jurisdiction is implicated by CMS’s motions, and we will

therefore address it. We find that we have jurisdiction to hear this appeal, we grant CMS’s

motion to take judicial notice, we deny CMS’s motion to remand, and we reverse the

decision of the ILRB.

¶3 On July 27, 2015, AFSCME filed the unfair labor charge against CMS that forms the

basis of this appeal. In the charge, AFSCME alleged as follows: In June 2015, while the

parties were in negotiations for a new collective bargaining agreement, CMS posted a list of

frequently asked questions (FAQs) on its website. One of the questions concerned the

payment of health insurance premiums for employees who go on strike. The posted response

indicated that employees engaged in a strike would be required “to immediately pay the full

cost of their health insurance” premiums. AFSCME further alleged that the State continues to

pay its share of the premiums during other types of unpaid absences.

¶4 In the charge, AFSCME argued that the policy set forth in the FAQs response violates

section 10(a)(1) and section 10(a)(2) of the Illinois Public Labor Relations Act (Labor

Relations Act) (5 ILCS 315/10(a)(1), (2) (West 2014)). AFSCME argued that the policy

discriminates against employees for going on strike, an activity protected under the Labor

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Relations Act, because it treats striking employees differently from other employees who go

on unpaid leave.

¶5 Attached to the charge were a printout of the FAQs posted on the CMS website and a

copy of portions of the State of Illinois employee benefits handbook. The relevant question

and response read as follows:

“Q. Will striking employees still receive health insurance?

A. Yes, but striking employees will be responsible for the full cost of their health

insurance, including the amount normally contributed by the State on behalf of the

employee. If striking employees miss any day during the pay period due to being on

strike, they will be sent a bill for the full cost of their coverage.” Employee FAQs,

State of Illinois, https://www.illinois.gov/employeefaqs/pages/default.aspx (last

visited Dec. 20, 2017).

The employee benefits handbook contained rules governing eligibility for the employer

contribution to health insurance for several types of unpaid leaves of absence. It showed that

employees remain eligible for the employer contribution to their health insurance premiums

during many, but not all, types of unpaid leave. It did not address the responsibility for

paying health insurance premiums when employees go on strike.

¶6 The unfair labor charge was assigned to ILRB member Michael Provines for

investigation. In July and August of 2015, Provines corresponded by e-mail with attorneys

from AFSCME and CMS to clarify the issues to be considered. During that correspondence,

counsel for AFSCME argued that the policy in the FAQs constituted an unfair labor practice

for three reasons. First, the policy acts as a threat to dissuade employees from striking

because its message to employees is that if they go on strike, even for one day, they would be

required to pay the full amount of their health insurance premiums for the entire pay period.

See 5 ILCS 315/10(a)(1) (West 2014). Second, the policy constitutes a unilateral

unbargained-for change in a term of employment-health insurance. See 5 ILCS 315/10(a)(4)

(West 2014); Vienna School District No. 55 v. Illinois Educational Labor Relations Board,

162 Ill. App. 3d 503, 506-07 (1987) (citing National Labor Relations Board v. Katz, 369 U.S.

736, 743-47 (1962)). Third, the policy discriminates against employees who go on strike

because other employees on unpaid leaves of absence do not have to pay the employer’s

share of their health insurance premiums. See 5 ILCS 315/10(a)(2) (West 2014).

¶7 On September 15, 2015, CMS sent a letter to Provines that served as its response to the

unfair labor charge. It argued that communicating its policy to its employees is protected as

free speech under section 10(c) of the Labor Relations Act. See 5 ILCS 315/10(c) (West

2014). CMS also argued that the policy is not an unfair labor practice. CMS noted that an

employer is not required to subsidize a strike. It pointed out that, consistent with this

principle, the reply to another FAQs on the website indicates that striking workers would not

be paid during a strike, a policy the union does not challenge. CMS argued that the policy

concerning health insurance premiums was no different from the policy concerning wages.

Finally, CMS argued that the policy expressed in the FAQs was not a new policy and

therefore did not change a term or condition of employment during contract negotiations. In

support of this argument, CMS alleged that during a 2004 strike by employees of

Northeastern Illinois University, the policy was applied to those striking workers. Attached

as an exhibit was a chart of the “pay codes” used by CMS for various types of leaves of

absence, including strikes. The chart indicates that striking employees are “100%

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responsible” for their health insurance premiums. It does not address whether those

employees are responsible for their entire premiums only for the duration of the strike or for

the remainder of the pay period as well.

¶8 In further e-mail correspondence, Provines asked counsel for CMS whether employees

are coded as “on strike” for the entire pay period, regardless of how many days they are on

strike, and, if so, why. Counsel indicated that the pay codes apply to entire pay periods,

regardless of the duration of the strike. He explained that it was “practically impossible” for

the payroll system to prorate health insurance premiums. He noted that other pay codes for

unpaid leaves of absence are handled the same way.

¶9 Provines forwarded the pleadings and correspondence to Executive Director Melissa

Mlynski, who issued a decision and recommended order on October 27, 2015. She found that

negotiations for a new collective bargaining agreement began in February 2015 and that the

FAQs response was first posted in June 2015. She further found that the employees

represented by AFSCME in the affected bargaining units were not then on strike and had

never gone on strike. She also noted that, although AFSCME never filed an amended charge,

CMS had actual notice of all three of its arguments. She therefore considered all three.

¶ 10 Mlynski first analyzed AFSCME’s contention that the policy discriminates against

employees for engaging in a strike, a protected activity under the Labor Relations Act. See 5

ILCS 315/10(a)(2) (West 2014). She explained that to prevail on such a claim, the union

must show that the employees actually engaged in protected activity (such as a strike), that

the employer was aware of their activity, and that the employer took an adverse action

against the employees. She concluded that because the bargaining units at issue had never

gone on strike and the policy had never been applied to them, AFSCME’s charge failed to

state a claim under section 10(a)(2).

¶ 11 Mlynski next considered AFSCME’s claim that CMS made a unilateral change to a term

of employment when it announced the policy in the FAQs. She noted that AFSCME, as the

charging party, had the burden of showing at least some evidence that CMS had unilaterally

changed a term of employment in order to be entitled to a hearing on this issue. Pointing to

CMS’s assertion that the 2004 Northeastern Illinois University strike was handled in the

manner described in the FAQs, she found that AFSCME did not present sufficient evidence

to warrant a hearing on this issue.

¶ 12 Finally, Mlynski considered AFSCME’s claim that the policy violates section 10(a)(1) by

threatening or dissuading employees from striking. In rejecting this claim, she pointed to the

State’s policy of not paying the salaries of striking employees while they are on strike, a

policy the union did not challenge. She found that the policy concerning health insurance

premiums was no different from this policy. She concluded that the unfair labor charge

should be dismissed without a hearing.

¶ 13 On November 9, AFSCME filed an appeal with the ILRB. AFSCME conceded that its

claim of discrimination under section 10(a)(2) was not ripe for decision because the policy

had not been applied to its members. It argued, however, that there was at least sufficient

evidence to raise questions on both of its other claims. First, AFSCME pointed out that it

would be an unfair labor practice under section 10(a)(1) to penalize striking employees by

refusing to pay their salaries for an entire pay period, rather than just during the strike. It

argued that the policy at issue was analogous to such a practice. Second, AFSCME argued

that there was a genuine issue of fact concerning whether the FAQs constituted a change in

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policy during contract negotiations, an unfair labor practice under section 10(a)(4). In support

of this argument, AFSCME alleged that CMS did not communicate this policy to the union

or its members prior to posting it online. AFSCME also alleged that its research showed that

during the 2004 Northeastern Illinois University strike, no faculty members were billed for

the employer’s share of their health insurance premiums and that nontenure track faculty

members were reimbursed for improper deductions after the strike ended. AFSCME argued

that a hearing was necessary to resolve both of its claims.

¶ 14 On December 15, 2015, the ILRB voted to adopt the decision of Executive Director

Mlynski. This vote took place at a meeting of the ILRB’s State Panel that was open to the

public. On January 22, 2016, the ILRB issued a written decision adopting Mlynksi’s decision

and dismissing the unfair labor charge. AFSCME timely filed a petition for review with this

court.

¶ 15 This matter was fully briefed and ready to proceed to oral argument by December 2016.

On December 6, CMS filed a motion, asking us to take judicial notice of an appeal pending

in the Fourth District involving the same parties. Two days later, CMS filed another motion,

asking us to take judicial notice of two additional proceedings involving the same

parties—an appeal in the First District and a petition filed by AFSCME in the Cook County

circuit court. In those matters, all of which involved a single decision of the ILRB, AFSCME

asserted that the decision was not a valid final administrative decision because the ILRB’s

procedures violated the Open Meetings Act. CMS argued in the motions it filed in this case

that because the ILRB followed the same procedure in this case that it followed there, the

position taken by AFSCME in those proceedings is at odds with its invocation of our

jurisdiction in this case.

¶ 16 On December 21, 2016, CMS filed a motion, asking this court to remand this matter to

the ILRB without considering the merits. CMS stated that it took no position on the Open

Meetings Act argument raised by AFSCME in the other proceedings. However, CMS argued

that in light of the unsettled Open Meetings Act question, the interest of judicial economy

would be best served by remanding the matter to the ILRB to allow it to hold additional

proceedings that would eliminate any Open Meetings Act problem. Both AFSCME and the

ILRB opposed the motion to remand.

¶ 17 We heard oral argument in this case in April 2017. At that time, we asked all three parties

to provide us with supplemental arguments on the questions of jurisdiction and the motion

for remand. We note that none of the parties have argued that we lack jurisdiction.

Nevertheless, we have an obligation to independently consider our jurisdiction, even if it is

not challenged by the parties, and we must dismiss the appeal if we do not have jurisdiction

to decide it. See Fligelman v. City of Chicago, 264 Ill. App. 3d 1035, 1037 (1994). We will

therefore address the question. We turn now to the issues raised by CMS’s motions.

¶ 18 We first consider the two motions to take judicial notice. A court may take judicial notice

of documents in the records of other courts or administrative tribunals. NBD Highland Park

Bank, N.A. v. Wien, 251 Ill. App. 3d 512, 520 (1993) (citing May Department Stores Co. v.

Teamsters Union Local No. 743, 64 Ill. 2d 153, 159 (1976)). We therefore grant both motions

and take judicial notice of the proceedings CMS identified.

¶ 19 As we mentioned earlier, all three proceedings involved one decision of the ILRB. There,

each of the parties filed an unfair labor charge against the other party. The two charges were

consolidated for a hearing before an administrative law judge (ALJ). The ALJ issued a

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lengthy decision and recommended order. Both parties appealed different portions of that

decision to the ILRB. The ILRB did not adopt the ALJ’s decision in its entirety. Instead, it

voted to adopt only certain portions of the ALJ’s order. The vote took place at a hearing that

was open to the public.

¶ 20 CMS filed a petition for review with the Fourth District almost immediately, before the

ILRB issued a written order. AFSCME filed a motion to dismiss, arguing primarily that the

decision of the ILRB was not a final and reviewable decision because no written decision had

been issued. See 5 ILCS 315/11(c), (e) (West 2014). AFSCME further argued that in order

for a written decision of the ILRB to be a final and reviewable decision, the ILRB must

comply with the requirements of the Open Meetings Act. AFSCME argued that to comply

with the Open Meetings Act, the ILRB would need to vote on the final written order at a

meeting open to the public. See Baldermann v. Board of Trustees of the Police Pension Fund,

2015 IL App (1st) 140482, ¶ 37; Howe v. Retirement Board of the Firemen’s Annuity &

Benefit Fund, 2013 IL App (1st) 122446, ¶ 32. It is this latter argument that CMS calls to our

attention in its motions.

¶ 21 A few weeks after CMS filed its petition for review in the Fourth District, the ILRB

issued its written decision. It did not hold an additional public hearing to vote on that

decision. AFSCME then filed a petition for injunctive relief in Cook County, arguing that

this procedure violated the Open Meetings Act. See 5 ILCS 120/3(a) (West 2014) (providing

that any individual may bring a civil action seeking relief for violations of the Open Meetings

Act). AFSCME also filed its own petition for review in the First District, addressing the

merits of the ILRB’s decision in case it does not prevail on its Open Meetings Act argument.

The First District appeal was subsequently transferred to the Fourth District and consolidated

with the appeal previously filed there. The consolidated appeal remains pending.

¶ 22 Before turning to the question of jurisdiction, a brief explanation of the rationale

underlying AFSCME’s Open Meetings Act argument will be helpful. The statutory definition

of a “public body” includes administrative agencies of the State, thus the ILRB is a public

body subject to the requirements of the Open Meetings Act. See 5 ILCS 120/1.02 (West

2014). The Open Meetings Act requires that all meetings of public bodies be open to the

public, with certain exceptions. 5 ILCS 120/2(a) (West 2014). Under one exception, a public

body may hold a closed meeting to consider the evidence and testimony that was presented in

an open meeting, “provided that the body prepares and makes available for public inspection

a written decision setting forth its determinative reasoning.” 5 ILCS 120/2(c)(4) (West 2014).

Public bodies must take all final actions in open meetings. 5 ILCS 120/2(e) (West 2014).

¶ 23 Here, the ILRB held a public meeting to consider AFSCME’s appeal of the executive

director’s recommended order. It voted at that meeting to adopt her decision in its entirety.

However, ILRB members signed a written decision adopting her recommended dismissal

order at a closed hearing. That decision sets forth the procedural history of the matter and

states that the ILRB upholds the executive director’s dismissal “for the reasons stated

therein”; it does not include independent findings of fact or conclusions of law. Essentially

the same procedure was followed in the Fourth District proceedings. There, however, the

ILRB did not adopt all of the findings of the ALJ. Thus, presumably, the written decision

signed by board members included a recitation of which findings it was adopting.

¶ 24 In the motion to dismiss AFSCME filed in the Fourth District, it cited two cases in which

panels of the First District found that, at least in some circumstances, signing a final written

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decision at a closed meeting violates the Open Meetings Act even if it is done after a vote is

taken at an open meeting. See Baldermann, 2015 IL App (1st) 140482, ¶ 37; Howe, 2013 IL

App (1st) 122446, ¶¶ 25-26. Both panels held that the underlying administrative actions were

not valid final decisions. Baldermann, 2015 IL App (1st) 140482, ¶ 39; Howe, 2013 IL App

(1st) 122446, ¶ 32. We note that both cases involved additional procedural irregularities that

supported the panels’ decisions. Baldermann, 2015 IL App (1st) 140482, ¶¶ 35-36; Howe,

2013 IL App (1st) 122446, ¶ 32. However, the Howe court used broad language in holding

“that the written decision must be prepared and provided to each board member at or before

the time the Board votes to take a final action.” Howe, 2013 IL App (1st) 122446, ¶ 25; see

also Baldermann, 2015 IL App (1st) 140482, ¶ 37 (following Howe on this point). Both

panels concluded that, as a result, they lacked jurisdiction to review the decisions.

Baldermann, 2015 IL App (1st) 140482, ¶ 39; Howe, 2013 IL App (1st) 122446, ¶ 32.

¶ 25 As stated previously, AFSCME argued in the Fourth District that the ILRB ruling at issue

was not a valid final administrative decision under Baldermann and Howe, thereby depriving

the appellate court of jurisdiction to consider the appeal filed there by CMS. Accepting this

argument and applying it to this case would mean that we do not have jurisdiction over this

case either.

¶ 26 We need not determine whether the procedure followed in this case fully complied with

the Open Meetings Act. For the reasons that follow, we find that, even assuming the

proceedings did not fully comport with the Open Meetings Act’s requirements, the ILRB’s

decision was a final administrative decision, and it was not inherently null and void.

¶ 27 The Open Meetings Act provides two alternative mechanisms for individuals to seek

redress for violations (or anticipated violations) of its requirements. Any individual may file

a petition in court, alleging that a public body has not complied with the requirements of the

Open Meetings Act or that there is probable cause to believe a public body will hold

proceedings that do not comply. 5 ILCS 120/3(a) (West 2014). The trial court has the

discretion to “grant such relief as it deems appropriate.” 5 ILCS 120/3(c) (West 2014). The

court has the authority to declare “null and void any final action taken at a closed meeting in

violation” of the Open Meetings Act. Id. However, that is not the only type of relief the court

may grant. It can instead grant an injunction barring future violations or order the public

body to make the minutes of any closed meetings available to the public. Id. As an

alternative, any individual seeking redress for a violation may file a request for review with a

“Public Access Counselor,” established as part of the office of the Attorney General. 5 ILCS

120/3.5(a) (West 2014). After review, the Attorney General must issue a binding opinion. If

the Attorney General concludes that a violation has occurred, the opinion can direct the

public body to take appropriate action. 5 ILCS 120/3.5(e) (West 2014).

¶ 28 As these procedures indicate, administrative actions taken in violation of the Open

Meetings Act are ordinarily voidable; they are not automatically void. That is, a declaration

that an action or decision is null and void is a remedy that must be requested and granted.

Moreover, declaring an action or decision null and void is considered an “extreme remedy”;

it is not a remedy that will be granted in all cases. See People ex rel. Graf v. Village of Lake

Bluff, 321 Ill. App. 3d 897, 908 (2001), rev’d on other grounds, 206 Ill. 2d 541, 544 (2003).

¶ 29 Likewise, we do not believe that a failure to comply with the requirements of the Open

Meetings Act will ordinarily prevent an administrative decision from being deemed “final.”

In this regard, we note that the circumstances before us are markedly different from those

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involved in Howe and Baldermann. As noted earlier, those cases involved multiple

procedural flaws in addition to the fact that the final written orders were signed in closed

meetings. In Howe, a member of a board considering an injured paramedic’s application for

duty disability benefits made a motion to grant the application, and the board voted against

that motion. However, there was no indication that the board members ever actually voted on

a motion to deny the application before issuing a written decision denying the benefits.

Howe, 2013 IL App (1st) 122446, ¶¶ 13-14. In Baldermann, the agency’s written decision

did not include all of the findings it was required to make. Baldermann, 2015 IL App (1st)

140482, ¶ 36. While these flaws may have justified finding that the administrative decisions

at issue in those cases were not final decisions, we do not believe the same result is warranted

here.

¶ 30 We express no opinion on whether the procedures followed in this case violated the Open

Meetings Act. We also express no opinion on whether a declaration voiding the decision

would be an appropriate remedy in the event that the ILRB’s procedures were found to

violate that Act. We conclude only that the decision of the ILRB constitutes a final

administrative decision, which we have jurisdiction to review.

¶ 31 We next consider CMS’s motion to remand this matter to the ILRB without first

addressing the merits. CMS notes that AFSCME itself cannot challenge the validity of the

decision under the Open Meetings Act because the 60-day time limit for doing so has passed.

See 5 ILCS 120/3(a), 3.5 (West 2014). However, it points out that any individual may file a

request for review with the public access counselor within 60 days after discovering the

violation of the Open Meetings Act as long as the individual does so within two years after

the alleged violation occurred. 5 ILCS 120/3.5(a) (West 2014). Under this provision, CMS

contends, any union members or member of the public who was not previously aware of the

decision could file a request for review up until January 22, 2018. CMS further contends that

if such a request is successful, the Attorney General could nullify the ILRB’s January 2016

decision, which would make our decision in this case moot. We are not persuaded.

¶ 32 CMS’s argument in favor of remand is based upon multiple layers of speculation. It

requires us to assume that (1) some individual will file a request for review, (2) the Attorney

General will find that a violation has occurred, and (3) the extreme remedy of declaring the

decision null and void will be imposed. Each of these possibilities is highly speculative. We

decline to remand this matter to the ILRB on the basis of speculative possibilities.

¶ 33 We now turn our attention to the merits of AFSCME’s petition for review. AFSCME

argues that it presented sufficient evidence to warrant a hearing on both its claim that CMS

committed an unfair labor practice under section 10(a)(4) of the Labor Relations Act by

unilaterally changing a term of employment and its claim that CMS committed an unfair

labor practice under section 10(a)(1) by threatening to require employees who go on strike

for any part of a pay period to pay the employer’s share of their health insurance premiums

for the entire pay period. Both CMS and the ILRB argue that the ILRB properly exercised its

discretion in reaching the opposite conclusions and that the FAQs posting was protected as

free speech under section 10(c). CMS also argues that AFSCME forfeited its claims of

section 10(a)(1) and section 10(a)(4) violations because it did not amend its charge to include

those claims. We agree with AFSCME.

¶ 34 Our standard of review is informed by the fact that this matter was dismissed at the

investigatory stage. Under the Labor Relations Act, when the ILRB receives an unfair labor

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charge, its first duty is to investigate the charge to determine whether a hearing is warranted.

5 ILCS 315/11(a) (West 2014); Michels v. Illinois Labor Relations Board, 2012 IL App (4th)

110612, ¶ 44. At this stage, the role of the ILRB is similar to that of a grand jury—that is, it

may call witnesses, assess their credibility, and draw reasonable inferences from the evidence

in order to determine whether there is sufficient evidence to warrant a hearing. Michels, 2012

IL App (4th) 110612, ¶ 44. If the ILRB finds any issues of fact or law sufficient to require a

hearing, it issues a complaint setting forth those issues. Id. The matter then proceeds to a

hearing. 5 ILCS 315/11(a) (West 2014). If the ILRB does not find that the charge presents

issues that warrant a hearing, it will dismiss the charge. Michels, 2012 IL App (4th) 110612,

¶ 44.

¶ 35 Where, as here, the ILRB dismisses an unfair labor charge because it finds insufficient

evidence to warrant a hearing, we review its decision under the deferential

abuse-of-discretion standard. Id. ¶ 45. We will find an abuse of discretion if the ILRB’s

decision is arbitrary, “exceed[s] the bounds of reason,” or “ignore[s] recognized principles of

law.” American Federation of State, County & Municipal Employees v. Schwartz, 343 Ill.

App. 3d 553, 559 (2003). As in all administrative review cases, the findings of fact

supporting the dismissal order are considered prima facie true and correct, and we will not

set them aside unless they are against the manifest weight of the evidence. Abrahamson v.

Illinois Department of Professional Regulation, 153 Ill. 2d 76, 88 (1992).

¶ 36 In assessing whether the ILRB ignored recognized principles of law, however, our review

is somewhat less deferential. Although we generally accord deference to the ILRB’s

interpretation of the statutes it administers, we are not required to accept its interpretation.

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

note that, due to the parallels between section 10 of the Labor Relations Act (5 ILCS 315/10

(West 2014)) and section 8 of the National Labor Relations Act (29 U.S.C. § 158 (2012)), we

may consider federal administrative and judicial circumstances interpreting the National

Labor Relations Act. City of Burbank, 128 Ill. 2d at 345. With these principles in mind, we

turn to the contentions of the parties.

¶ 37 We will first address CMS’s forfeiture argument. CMS contends that AFSCME forfeited

arguments on both its section 10(a)(1) and section 10(a)(4) claims because the charge was

not amended to include these claims. We disagree.

¶ 38 The Labor Relations Act gives the ILRB, its members, and hearing officers appointed by

the ILRB the discretion to amend an unfair labor complaint at any time before a final

decision is issued. 5 ILCS 315/11(a) (West 2014). Such amendments may be made either on

the motion of a party or sua sponte. Forest Preserve District v. Illinois Labor Relations

Board, 369 Ill. App. 3d 733, 746 (2006) (citing 80 Ill. Adm. Code 1220.50(f) (2003)). The

complaint may be amended to add allegations not included in the original charge “ ‘so long

as the added allegations are closely related to the original charge, or grew out of the same

subject matter during the pendency of the case.’ ” Id. at 746-47 (quoting Service Employees

International Union, Local 73, 20 PERI ¶ 85 (ILRB State Panel 2004)). The complaint may

be amended to conform to evidence presented if the amendment would not cause prejudice to

any party. Id. We note that the instant case was dismissed without a complaint being issued,

but we believe the same principles apply to the ILRB’s decision to consider all three issues.

¶ 39 In this case, we find that the allegations of all three claims are closely related to the

allegations in the original charge and all three claims involve the same underlying set of

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circumstances. The charge cited both section 10(a)(1) and section 10(a)(2), but did not cite

section 10(a)(4). Also, the charge did not specifically allege that the policy of requiring union

members to pay the employer’s share of their premiums for any entire pay period in which

they go on strike constituted a unilateral change or that it acted as a threat against striking,

although it did allege that the policy was posted online at a time when the parties were

negotiating a new collective bargaining agreement and, as noted, the existence of the policy

itself was a key part of all three claims.

¶ 40 We also find that CMS was not prejudiced by Executive Director Mlynski’s decision to

consider all three claims. As she noted in her recommended order, CMS had actual notice of

the claims. Significantly, CMS responded to all three arguments during the administrative

proceedings.

¶ 41 We note that the authority cited by CMS in support of its forfeiture argument is

distinguishable. See Fraternal Order of Police, Chicago Lodge No. 7 v. Illinois Labor

Relations Board, 2011 IL App (1st) 103215, ¶¶ 27-30. There, the First District upheld the

ILRB’s finding that a union forfeited a claim. The union never asked for the complaint to be

amended to include the claim, and its attorney objected to hearing testimony related to that

claim, arguing that the testimony was not relevant because the claim was not at issue. Id.

¶¶ 29-30. The First District found that the union forfeited the claim by objecting to the

testimony. Id. ¶ 30. We therefore reject CMS’s forfeiture argument, and we find that the

ILRB properly exercised its discretion in considering all three claims. We turn now to

AFSCME’s contentions.

¶ 42 We will next consider AFSCME’s contention that the ILRB abused its discretion by

dismissing the unfair labor charge because the charge raised a factual question concerning

whether the policy described in the FAQs amounted to a unilateral change to a term or

condition of employment during contract negotiations. We agree.

¶ 43 The applicable law is not in dispute. The Labor Relations Act requires public employers

and unions to bargain collectively over the terms and conditions of employment. 5 ILCS

315/7 (West 2014). Refusal by either party to bargain in good faith constitutes an unfair labor

practice. 5 ILCS 315/10(a)(4), (b)(4) (West 2014). An employer violates this requirement—

and therefore commits an unfair labor practice—when it makes a unilateral change to a term

or condition of employment that is the subject of collective bargaining while the parties are

involved in contract negotiations. Katz, 369 U.S. at 743-47; Vienna School District, 162 Ill.

App. 3d at 506. In this case, there is no dispute that health insurance is a term of employment

that is covered under the parties’ collective bargaining agreements. The question is whether

the policy described in the FAQs represents a change in policy that occurred during contract

negotiations. More precisely, the question is whether the policy existed before it was posted

on the website, which undisputedly occurred while the parties were negotiating a new

contract.

¶ 44 On the record before us, there is little evidence on this question and no evidence that

resolves the question. The record consists of the unfair labor charge, the parties’ e-mail

correspondence with the board member investigating the charge, CMS’s letter responding to

the charge, and the exhibits submitted by each party. AFSCME alleged that the policy was

first communicated to it when the FAQs were posted in June 2015. CMS did not dispute this

allegation. It alleged that the policy existed prior to being posted in the FAQ section of the

website, regardless of whether AFSCME or its members were aware of the policy. CMS

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further alleged that the policy was previously followed during a strike by employees of

Northeastern Illinois University, while AFSCME alleged that its research showed that the

policy was not followed during that strike. Neither party provided any documentation to

support its allegations concerning the 2004 strike.

¶ 45 The only documentary evidence in the record on this question is the chart of pay codes

submitted by CMS and a section of the employee benefits handbook submitted by AFSCME.

As noted earlier, the chart of pay codes shows that striking employees were previously

responsible for paying 100% of their health insurance premiums during a strike.

Significantly, however, the chart is silent as to any employee responsibility for health

insurance premiums during the remainder of any pay period in which employees strike. The

employee benefits handbook does not address the health insurance benefits of striking

workers at all. Thus, the documentary evidence available does not conclusively answer the

salient question.

¶ 46 We note that apparently Michael Provines, the board member who investigated the claim,

did not find these documents conclusive either. As we discussed earlier, he asked CMS’s

attorney whether the pay code for striking workers applied only during the strike or for the

remainder of the pay period. The question was necessary precisely because the answer could

not be found in the available evidence. Counsel asserted in response that the code had always

applied the entire pay period, even if a strike lasted only one day. However, the allegation of

a party’s attorney in an e-mail is not evidence. For these reasons, we believe the ILRB’s

finding that there was no question of fact to be resolved was against the manifest weight of

the evidence.

¶ 47 We acknowledge that, as noted earlier, the ILRB has authority to hear the testimony of

witnesses and make credibility determinations during the investigatory stage. See Michels,

2012 IL App (4th) 110612, ¶ 44. Here, however, no witnesses testified, neither party made

allegations that were inherently implausible, and the limited documentary evidence available

was inconclusive. Under these circumstances, there was nothing upon which a reasonable

fact finder could base a credibility determination, and in fact, the administrative decision did

not include any explicit credibility determinations. For these reasons, we believe it was

arbitrary, and therefore unreasonable, to accord more credence to the allegations of CMS

than those of AFSCME.

¶ 48 Finally, we acknowledge that AFSCME had the burden of demonstrating that there was

enough evidence to warrant a hearing on this issue. However, it is difficult to prove a

negative. Thus, expecting a union to be able to produce evidence of the nonexistence of an

employer’s policy not previously communicated to it without additional, more formal

proceedings is likewise unreasonable. For these reasons, we find that the ILRB abused its

discretion in failing to find that there is a question of fact to be resolved that warrants a

hearing.

¶ 49 We next consider AFSCME’s argument that the policy acts as a threat to dissuade

employees from striking. AFSCME argues that the ILRB ignored recognized principles of

law in concluding that the policy was not coercive and dismissing the claim. We agree.

¶ 50 Under section 10(a)(1) of the Labor Relations Act, it is an unfair labor practice for an

employer “to interfere with, restrain[,] or coerce public employees in the exercise” of any

right protected under the Labor Relations Act, including the right to strike. 5 ILCS

315/10(a)(1) (West 2014). An employer’s message or conduct is “coercive” within the

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meaning of this provision if it “ ‘reasonably tends to coerce employees in the exercise of their

rights, regardless of whether it does, in fact, coerce.’ ” Chicago Transit Authority v. Illinois

Labor Relations Board, 386 Ill. App. 3d 556, 572-73 (2008) (quoting National By-Products,

Inc. v. National Labor Relations Board, 931 F.2d 445, 451 (7th Cir. 1991)). The question is

whether, in light of all of the surrounding circumstances, employees could reasonably

conclude that their employer is threatening them with economic reprisal in the event of a

strike. National Labor Relations Board v. Brookwood Furniture, 701 F.2d 452, 459 (5th Cir.

1983).

¶ 51 Here, the ILRB found that the policy at issue might dissuade employees from engaging in

a strike. It found, however, that the policy was not coercive because it was similar to CMS’s

policy of not paying the salaries of striking employees during a strike, a policy which was not

challenged by AFSCME. This conclusion overlooks a crucial distinction between the two

policies—the policy concerning salaries is limited to the duration of the strike, while the

policy concerning health insurance premiums is not. This difference is significant because an

employer is not required to subsidize a strike. Thus, withholding wages and benefits during a

strike generally does not constitute an unfair labor practice. See In re General Electric Co.,

80 N.L.R.B. 510, 511 (1948). The issue in this case is the denial of a benefit before and after

a strike.

¶ 52 The National Labor Relations Board (NLRB) addressed a far more analogous situation in

In re Pride Ambulance Co., 356 N.L.R.B. 1023 (2011). There, an employer sent a notice to

striking employees, informing them that it would stop paying its share of their health

insurance premiums if they did not return to work. The notice further informed them that

unless they returned to work or purchased coverage under COBRA, they would be subject to

“re-enrollment requirements,” including a 90-day waiting period during which they would

have no coverage. Id. at 1024. The NLRB held that by threatening to impose the 90-day

waiting period, the employer violated section 8(a)(1) of the National Labor Relations Act (29

U.S.C. § 158(a)(1) (2006)). Pride Ambulance, 356 N.L.R.B. at 1028. The NLRB noted that

“decades of Board precedent” supported its holding. Id. at 1026. In particular, it pointed to its

prior decision in In re Cone Brothers Contracting Co., 158 N.L.R.B. 186 (1966). There, the

NLRB explained that “ ‘strike activity does not entail acceptance after the strike of a smaller

quantum of vested job rights and privileges.’ ” (Emphasis omitted.) Pride Ambulance, 356

N.L.R.B. at 1027 (quoting Cone Brothers Contracting, 158 N.L.R.B. at 188). It also looked

to precedent in emphasizing that imposing a waiting period for health insurance coverage on

employees who return from a strike “ ‘unjustly penalize[s] strikers’ ” for going on strike. Id.

(quoting In re Ace Tank & Heater Co., 167 N.L.R.B. 663, 664 (1967)). The NLRB thus

concluded that withholding a benefit from employees who return to work after a strike is

unlawful and threatening to do so constitutes an unfair labor practice under the federal

counterpart of our section 10(a)(1). Id. at 1028.

¶ 53 Both CMS and the ILRB argue that Pride Ambulance and the cases cited therein are

distinguishable from the instant case. CMS argues that those cases are distinguishable

because they involve the denial of “accrued benefits.” See In re Texaco, Inc., 285 N.L.R.B.

241, 245-46 (1987) (explaining the requirement of proof that a benefit is accrued on the date

on which it is denied); but see Conoco, Inc. v. National Labor Relations Board, 740 F.2d 811,

814 n.2 (10th Cir. 1984) (noting that “It is not altogether clear whether accrual versus

non-accrual of a benefit is the key to analyzing these cases.”). CMS explains that health

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insurance benefits for State employees are not “accrued” because an employee is eligible for

health insurance coverage the day he or she begins working for the State and ceases to be

eligible the day the employee stops working for the State.

¶ 54 We reject the contention that this feature makes Pride Ambulance distinguishable for two

reasons. First, the test for whether a benefit is “accrued” is simply whether it is “due and

payable” at the time it is denied. Conoco, 740 F.2d at 815; Texaco, 285 N.L.R.B. at 245.

Second, as the NLRB explained in Pride Ambulance, the distinction between accrued and

nonaccrued benefits is relevant only where the employer is withholding a benefit or

threatening to withhold benefits during a strike. Pride Ambulance, 356 N.L.R.B. at 1027.

¶ 55 Similarly, the ILRB argues that these cases are distinguishable because the policies in

those cases were communicated in the context of ongoing labor disputes. We agree that this

is a relevant factor in determining whether employees would reasonably feel coerced. See

Brookwood Furniture, 701 F.2d at 460 (noting that statements found to be coercive were

made “in the context of ‘a vigorous *** antiunion campaign’ ”). We do not agree that this

difference constitutes a bright line rule, however. Such a holding would absolve employers of

otherwise-unlawful threats to withhold benefits from employees before or after a strike as

long as they announce the policy at a time when a strike is not imminent. Such a result is

untenable.

¶ 56 We acknowledge, however, that there are differences between the circumstances involved

in Pride Ambulance and those involved in this case. The consequences of the re-enrollment

period at issue in Pride Ambulance were potentially dire. There, striking employees who

returned to work after the strike were without coverage for a three-month period. A serious

injury or illness during that period could have catastrophic consequences. Here, CMS would

continue to maintain employees’ insurance, but would bill them for the portion of the

premiums it normally pays. In addition, as we have just discussed, the policy here was not

announced in the midst of a labor dispute. All of these circumstances are relevant in

assessing the coercive nature of the policy. See Brookwood Furniture, 701 F.2d at 459. Here,

however, the ILRB did not assess the coercive tendency of the policy. Instead it found that

announcing the policy could not be construed as a threat because it was no different from

informing employees that they would not be paid during a strike. In short, the ILRB

overlooked the distinction between informing employees that a benefit will be lawfully

withheld during a strike and threatening to unlawfully withhold a benefit from employees

before and after a strike. We find that by ignoring this distinction, the ILRB ignored a

recognized principle of law.

¶ 57 Finally, we consider the argument of CMS and the ILRB that CMS’s announcement of its

policy was protected as free speech under section 10(c) of the Labor Relations Act (5 ILCS

315/10(c) (West 2014)). That section provides that it is not an unfair labor practice for an

employer to express “any views, argument, or opinion” as long as “such expression contains

no threat of reprisal or force or promise of benefit.” Id. Typically, this provision and its

federal counterpart are implicated when an employer or one of its agents expresses an

opinion about the negative impacts the employer predicts might flow from unionization or a

strike. See, e.g., National Labor Relations Board v. Gissel Packing Co., 395 U.S. 575, 616-19

(1969); National Labor Relations Board v. River Togs, Inc., 382 F.2d 198, 202 (2d Cir. 1967);

Metropolitan Alliance of Police, Chapter No. 357, 27 PERI ¶ 9 (ILRB State Panel 2011).

Here, CMS did not express any opinions. Rather, it announced its own policy, and AFSMCE

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has alleged that the policy itself acts as a threat against going on strike. If AFSCME

ultimately prevails on its claim, section 10(c) will not provide a defense.

¶ 58 For the foregoing reasons, we grant CMS’s two motions to take judicial notice of other

proceedings, we deny CMS’s motion to remand this matter to the ILRB for another public

vote on its existing decision, we reverse the order of the ILRB dismissing the unfair labor

charge without a hearing, and we remand for further proceedings.

¶ 59 Reversed and remanded.

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