Board of Trustees v. Illinois Labor Relations Board

JUSTICE CARMAN, dissenting:

The majority characterizes its decision as a consideration of whether the appellate court properly applied the standard of review in overturning the decisions of the Illinois Educational Labor Relations Board (IELRB) and the Illinois Labor Relations Board (ILRB). Ultimately, the majority concludes that the appellate court improperly applied the standard of review in the case involving the ILRB. I believe the majority’s decision commits the very same mistake it seeks to remedy. Specifically, I believe the majority decision incorrectly applies the standard of review in its consideration of the second step of the Central City test in the IELRB case. Central City Education Ass’n v. Illinois Educational Labor Relations Board, 149 Ill. 2d 496 (1992). This failure leads the majority to show no deference to the IELRB and inappropriately preclude analysis of step three of the Central City test. It also improperly penalizes the University for this court’s choice to consolidate these cases. For these reasons, I respectfully dissent.

As the majority adequately describes, this court adopted a three-part test for determining whether an issue is subject to mandatory bargaining under the Educational Act in Central City, and explained that “the application of the test requires a detailed factual analysis that the IELRB is particularly well suited to examine.” Central City, 149 Ill. 2d at 524 . Moreover, the majority notes that this court has applied the Central City test in cases arising under the Illinois Public Labor Relations Act, at issue in the ILRB case. City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 206 (1998). That being said, the majority explains that it will examine each of the consolidated cases under this test.

Before undertaking its analysis, the majority enunciates the standard of review. As the majority notes, the clearly erroneous standard of review is proper when reviewing a decision of the IELRB or the ILRB because the decision represents a mixed question of fact and law. City of Belvidere, 181 Ill. 2d at 205 . Under this standard, an agency decision will be reversed only if the reviewing court, based on the entirety of the record, is “ ‘left with the definite and firm conviction that a mistake has been committed.’ ” AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 395 (2001), quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 , 92 L. Ed. 746, 766 , 68 S. Ct. 525, 542 (1948).

Necessary to my analysis is a brief recitation of the Boards’ dissimilar applications of the Central City test, as well as the appellate decisions that followed. Reviewing the findings of fact and the recommended decision of an administrative law judge, the IELRB found that parking was a term and condition of employment, but also believed that parking-related issues were within the purview of the University’s inherent managerial authority. A majority of the IELRB thus utilized the third step of the Central City test, found that the benefits of bargaining the issues of parking and parking fees outweighed the burden it imposed on the University’s inherent managerial authority, and therefore upheld the ALJ’s finding that the University had engaged in unfair labor practices. The University appealed, and a majority of the appellate court reversed, finding that the IELRB’s decision that the benefits of bargaining outweighed the burdens was clearly erroneous. The appellate court did not consider whether parking fees were a matter of the University’s inherent managerial authority because that issue was not raised by the parties.

Reviewing the findings of fact and the recommended decision of a different administrative law judge, the ILRB found that parking was a term and condition of employment and that the FOP’s parking proposal did not affect the University’s inherent managerial authority. Like the IELRB, then, the ILRB found that the University’s refusal to bargain with the FOP over parking constituted an unfair labor practice. Again, the University appealed and a majority of the appellate court reversed, finding that it was clearly erroneous to hold that parking and parking fees were not part of the University’s inherent managerial authority. The appellate majority went on to find that the significant burdens that bargaining placed on the University outweighed its benefits.

Beginning its analysis of Central City, the majority concludes that the appellate court panels properly found that the Boards’ decisions that the unions’ parking proposals involved “wages, hours or terms and conditions of employment” were not clearly erroneous. I agree with the majority on this point. Following this, the majority analyzes the second step of the Central City test. It is with this analysis that I disagree.

The majority first considers whether the parking issues raised in the FOP’s case affect a matter of inherent managerial authority. After discussing and disagreeing with the University’s arguments, the majority revisits the standard of review in conjunction with the findings of the appellate court. The majority states that “[Booking at the record in its entirety, we cannot say that we are ‘ “left with the definite and firm conviction” ’ that the ILRB erred by finding the FOP parking proposal did not concern matters that affect the University’s inherent managerial rights.” 224 Ill. 2d at 106-07. Due to that finding, the majority holds that “[t]he appellate court erred in reversing the ILRB’s analysis on step two of the Central City test and proceeding to step three of that test.” 224 Ill. 2d at 107. Evidently, the majority relied on and was, at least in part, guided by the application of the clearly erroneous standard of review in its holding concerning the ILRB’s findings.

In the very next breath, however, the majority completely ignores the clearly erroneous standard in turning from the ILRB case to the IELRB case. Stating that the SEIU did not raise the second step of the Central City test in the appellate court, and noting that the relevant facts and law are virtually indistinguishable from the FOP case, the majority concludes the analysis in the SEIU case “with the determination that the union’s proposal does not affect the University’s inherent managerial rights, and, thus, is a subject of mandatory bargaining.” 224 Ill. 2d at 108.

The majority fails to adequately support this holding, though, utilizing only a discussion of waiver and pointing to “the interests of consistent jurisprudence.” 224 Ill. 2d at 108. It is true that the SEIU and the IELRB did not raise the second step of the Central City test before this court. Instead, they focused their arguments on step three, a balancing of the benefits of bargaining versus the burdens imposed. This fact does not support the majority’s conclusion, however.

In People v. Bolden, 197 Ill. 2d 166, 178 (2001), this court noted that the forfeiture rule is a limitation on the parties and not on the jurisdiction of the courts and stated that it was going to address an issue raised for the first time on appeal “[rjecognizing both the importance of this issue and our obligation to maintain a sound and consistent body of case law.” Bolden, 197 Ill. 2d at 178 . The majority in this case utilizes that language in support of its decision to address the second step of the Central City test with regards to the IELRB case despite the fact that it was not raised in the appellate court.

This discussion is irrelevant, though, because the forfeiture rule has no bearing on the application of the clearly erroneous standard to the ruling of the IELRB. It is true that this court has the authority to disregard forfeiture in the IELRB case and address the second step of the Central City test. However, in addressing step two in the IELRB case, the majority is suggesting that, as a matter of law, it is incorrect to find that parking issues fall within the inherent managerial authority of the University. In other words, the majority is holding that it could never be correct under any circumstance to find that parking issues fall within the University’s inherent managerial authority. This is the only possible interpretation of the majority’s analysis of the second step in the IELRB case, because the IELRB found that parking did fall within the University’s inherent managerial authority. In reversing that finding, the majority makes no reference to the clearly erroneous standard.

Unfortunately, the majority offers insufficient support for its holding that it was incorrect as a matter of law — and, consequently, clearly erroneous — for the IELRB, or any other body, to conclude that parking is part of the University’s inherent managerial authority. If the majority believes its discussion of the FOP case supports its holding in the IELRB case, it needs to explicitly say so and fully analyze why that conclusion is merited. Without doing so, the majority shows little deference to the overall findings of the IELRB, fails to fully address that case, and penalizes the University simply because the SEIU appeal was consolidated with that of the FOE

In the end, the majority’s analysis of the IELRB case eviscerates the clearly erroneous standard of any real meaning and even calls into question its use. On the one hand, the majority utilizes the standard as critical support for its decision, finding that it was not clearly erroneous for the ILRB to find that parking was not part of the University’s inherent managerial authority. On the other hand, the majority completely ignores the standard in the SEIU case where the IELRB held that parking was part of the University’s inherent managerial authority but the benefits of bargaining over parking outweighed the burdens. If both the ILRB and the IELRB are entitled to equal deference under the clearly erroneous standard, both being uniquely qualified for the decisions with which they are tasked, why does the majority utilize the clearly erroneous standard in reviewing one but not the other?

That one decision was not clearly erroneous does not necessarily make the opposite clearly erroneous. By contrast, that one decision is clearly erroneous necessarily makes the opposite conclusion not clearly erroneous. The majority does not address this point and its reference to forfeiture does little to remedy the oversight. Because of this, the majority fails to properly apply the standard of review and thereby fails to adequately support its overall decision.

The above described failure allows the majority to end its analysis without addressing step three of the Central City test, weighing the benefits and burdens of bargaining over a particular matter. It may be that it is not clearly erroneous to find, as the IELRB did, that parking matters are part of the University’s inherent managerial authority. In such a situation, analysis under step three would be warranted.

In misapplying the standard of review at step two of the Central City test, the majority incorrectly forecloses any analysis of the third step of the test. In failing to undergo any analysis under step three of the Central City test, the majority neglects the University’s arguments concerning that step, fails to show any deference to the IELRB, and penalizes the University for this court’s choice to consolidate the FOP and SEIU cases. For these reasons, I respectfully dissent.

JUSTICE KARMEIER joins in this dissent.