City of Bloomington v. Illinois Labor Relations Board

BLOOMINGTON, Petitioner-Appellant, THE ILLINOIS v. CITY OF THE al., BOARD, PANEL, Respondents-Appellees. STATE et LABOR RELATIONS District 4 - 06-0774 Fourth No. Rehearing denied February Opinion filed

Argued 2007. 28, 2007. June COOK, dissenting. J., Sullivan, P.C., Yu, (argued)

James J. Franczek Zuehl and Donald Y. both of Counsel, Bloomington, for Chicago, Greenburg, Corporation Todd and J. petitioner. General, Feinerman, Attorney Chicago (Gary Solicitor Madigan,

Lisa S. Attorney General, General, (argued), A. Assistant and Sharon Purcell counsel), Board, respondent for Illinois Labor Relations State Panel. Committee, Voyles (argued),

Shane of Policemen’s Benevolent Labor M. Firefighters. Springfield, respondent Association of International JUSTICE MYERSCOUGH delivered the opinion of the court: Petitioner, City Bloomington (City), appeals the decision of respondent Board, (Board), Illinois Labor Relations State Panel find practice. committed unfair labor International Ass’n of (Ill.) 49, 22 Firefighters, Local No. (Illinois Panel, S—CA—04—166 23, Labor Relations August State (hereinafter 2006) Employee Pub. Rep. par. The City argues holding the Board erred in City the to bargain respondent Firefighters, with International Association of Lo (Union), chief, cal 49 promotions position to the of fire assistant a represented bargaining outside the unit the af Union. We firm.

I. BACKGROUND The Union is the exclusive a representative of histori- cal composed City’s firefighters, unit of the fire lieuten- ants, captains. and fire rank in the unit is captain.

Promotions the unit par- within are controlled the bargaining agreement. ties’ The parties stipulated Blooming- (Commission) ton Fire and Police Commission controlled chief, to the rank of fire which assistant since June 2003 has been the immediately rank captain bargain- above of but is not within the ing unit. 21, 2004, following

On the the the City: Union sent letter to the of [No.] “It has come to attention IAFF Local 49 that Chief Ranney options Fire proposed Bloomington had two ([Commission])altering promotional process PoliceCommission the According [assistant [Department] for to the Fire Promo- [c]hief. [(Promotion Act) (50 (West tion[ ] 2004))] through Act ILCS bargain representa- City required the to with the certified [c]hief, the of [assistant tive rank below rank weights assigned IAFF the the [No.] to wit Local 49 over various components Accordingly, representative of of the test. as the IAFF 49,1 hereby negotia- [No.] Local demand that we commenceformal pursuant over the new Chief tions Assistant exam [Promotion Act].” the City City bargaining. refused the Union’s demand for claimed *** Act,” it provision that while was “bound the bargain process appointing positions of outside the individuals subject bargaining. Village of mandatory unit was not a See of

Franklin Park v. Illinois State Labor Relations (1994) (First District); 1144, see also 50 997, 1005, 638 1148-49 2003). 2003) (eff. (d)(2) 4, 742/10(a), August Supp. ILCS 21, 2004, practice filed an unfair labor with On June the Union 2005, Board issued director Board. November executive 10(a)(4) alleging City sections complaint hearing for violated (a)(1) 315/10(a)(l), Relations of the Illinois Public Labor 2004)) (a)(4) (West good faith it refused to failed and when fire the rank of assistant for changes criteria complaint. 2005, filed its answer chief. In December agreed that dispute, the facts were not Because of the record. decided on basis hearing, lieu of a the case should be answer, City’s stipulations complaint, The record consists of summary and the parties, judgment, for by the Union’s motion judgment. City’s summary to the motion response (ALJ) judge On the administrative law issued April finding herein an unfair labor recommended decision order IAFF, Ass’n, Firefighters practice Libertyville on based Professional (Ill.) Village Rep. par. Libertyville, Employee Local 3892 v. (Illinois CA—05—045, No. 762-63 Local Labor Rela S— 2005) (finding tions Board November the Promotion made positions mandatory topic nonbargaining (hereinafter bargaining) 21 Pub. Village 211)). (Ill.) Employee Firefighters, International Ass’n Lo Rep. par. cal 22 Pub. No. S—CA—04—166 (ALJ On April May recommended decision and order 2006, exceptions the filed and City its to the recommendation order. City erroneously Village Libertyville The claimed the ALJ held the case, City ruling board was the law of the and the asserted the First Labor opinion Village District’s Franklin Park v. Illinois State 997, 1144, Ill. N.E.2d the App. Relations 265 3d 638 was City argued held controlling erroneously decision. The also the ALJ negotiate City Act the to the terms of Promotion position. fire to the assistant chief 2006, Union, response City’s exceptions, In June in its sought May that Specifically, additional relief. the Union claimed since 2004, promotional process had rank continued its chief, resulting of a and assistant fire in the creation list being January requested The promotions made Union any promotions fist be to the rank of deemed invalid 21, 2004, May assistant fire chief be rescinded. since 2006, of the ALJ August upheld the Board the recommendation The adopted it as the decision of the Board as modified. modifica by Union. 22 Pub. sought tions included additional relief 107, par. at 414-15. only The appeal appeal This concede affects followed. two individuals.

602

II. ANALYSIS The City argues that at in question prior the time to the 2006 — (Pub. 809, §5, 26, amendment to the Promotion Act eff. 94— (West)) 2006 Ill. Legis. (amending Serv. 1494 50 ILCS 742/ 10(d)(2) (West 2004)) promotions posi Promotion Act made —the permissive tions outside the subject of bargaining, (see (d)(2) (West a mandatory subject 742/10(a), 2004)), and did not change by law set forth Franklin Park. The Union argues the case is moot because the Promotion Act has been amended specifically provide that rank immediately the next the highest above rank included within the unit a manda subject tory bargaining.

A. Case Is Not Moot Union, According City’s admission the amended rank version of the Act makes the next the highest above rank included within the unit a manda tory the case renders moot. Union cites Il Giello, Chiropractic Society 306, 310, linois v. 18 Ill. 2d 164 N.E.2d (1960), proposition for the that this “case must be disposed exists, as reviewing court under the it then not as it was when decision made trial court.” Generally, statutory relating rights amendments to substantive apply prospectively procedural rights while amendments Services, apply retroactively. Ready Inc., v. United/Goedecke (2006), 3d allowed, appeal (2006) (No. 103474). 861 N.E.2d 664 presumption that an affecting rights amendment is prospective substantive can be rebutted express necessary implication. Ready, 367 Ill. Here, 854 N.E.2d at 761. amendment to express language applies retroactively. no it contains injunc is inapposite Giello case here because it involved an subsequently tion for conduct that was made Giello lawful. involved enjoin chiropractic practicing lawsuits individuals from without (Ill. ch. license violation Medical Practice Act Rev. Stat. 307-08, Giello, 18 Ill. 2d at 49. The Medical prescribed Practice Act certain educational for the issu requirements Giello, 308, of a license under the Act. 18 Ill. 2d 164 at ance at N.E.2d 49. oral argument,

At the defendants therein claimed the benefits an the Medical Practice Act that allowed certain amendment applicant requirements passed educational to be waived where the 308, Giello, 164 July exam on before 1963. 18 Ill. 2d at written or

603 applicant an would provided also that N.E.2d at 50. The amendment the a license under for failure to have subject prosecution not be period covered during the time of Medical Practice Act provisions the (until 1963). at Ill. 164 N.E.2d Giello, 18 July the 50. held supreme properly the circuit court court found law the state of the

plaintiffs injunctive relief under were entitled to Giello, 2d 164 N.E.2d injunctions the entered. at when were legislature has However, at the noted that “where the court appeal disposed the case must be changed pending an exists, it reviewing the law then and not as was court under as it Giello, Ill. 2d at when the decision was made the trial court.” law, in Through change legislature at 50. qualified and persons temporarily declared such the defendants as Giello, upon injunctive appropriate. relief was removed basis which 311-12, 2d no valid is (noting purpose Ill. 164 N.E.2d at 51 injunction continue permitting private discernible for individuals to lawful). has suits to restrain conduct which become Here, specifically did not indicate the because does apply retroactively, amendment and because case not would lawful, injunction against statute involve an conduct now rendered apply retroactively does not and the case is not moot. Subject

B. of Promotions to Ranks Outside History Unit Bargaining bargain collectively regard public employer A is with hours, employ- directly affecting wages, to matters and conditions of 2004). (West A 5 ILCS impact ment as well as thereon. duty public representative exclusive have the employer employer An commits bargain collectively. 5 ILCS 315/7 (1) practice agent if the or its interferes unfair labor with, restrains, the exercise of the public employees or coerces in collectively in Act; bargain refuses to rights guaranteed good representa- exclusive organization faith with a labor which 315/10(a)(l), public employees appropriate in an unit. 5 ILCS tive of (a)(4) (West 2004). Act, the First to the enactment of the Promotion prior 1144, found Park, Ill.

District Franklin department because the fire were not members captains unit, captain not a proposal Park, mandatory bargaining. Franklin Public 1005, 638 N.E.2d at found that the Illinois 1148-49. court duty Village to impose on the Labor Relations “does promotion criteria for employees scope outside bargain the the Park, unit.” App. Franklin 265 Ill. 3d at 638 N.E.2d 1149. at addition, In the Franklin court Park affirmed the Board’s decision following promotion the mandatory subjects issues were (1) for a bargaining within unit: the criteria for (2) (3) promotions; criteria; weighting eligibility require minimum (4) exams; participate ments to in the promotion order of from the (5) list; eligibility posting Park, and the of exam Franklin scores. 638 N.E.2d at 1146. The court also the affirmed Board’s decision that the following mandatory subjects issues were not (for unit): (1) the bargaining within exam (2) design; identity format and the of those who conduct/administer (3) exam; and oral written parts guidelines standards and for (4) questions; guidelines exam and and standards for merit and ef ficiency Park, ratings. Franklin

1146. Act,

In passed August the the Promotion effective (2003 August Pub. Act eff. Ill. Legis. Serv. 93— (West) 999)). (enacting 2251-57 through 50 ILCS The Promotion 742/1 aspects promotion general, Act details the process. various the (1) following Promotion provisions: Act contains the that the appoint ing authority process will administer a promotion accordance with the including eligibility requirements, minimum every testing publication component and evaluation procedures, provide and the appointing authority separate will a (50 for rank filled ILCS by promotion examination each (West (2) 2004)); person’s the factors determine 742/15 (50 (West (3) the preliminary promotion 2004)); on list ILCS 742/20 promotion process that all the aspects by shall be monitored two impartial persons appointed by bargaining agent exclusive may by persons by be monitored two impartial appointing selected (50 (4) (West 2004)); authority weight given any ILCS 742/25 component appointing authority in a test is set at the discretion of the weight any is provided that the modification terms of collective-bargaining agreement in effect as of the effective date of negotiations Promotion Act thereafter between the or however, representative; of this sec provisions and the provision agreed do not if otherwise apply inconsistent with (West (5) (50 2004)); agreement in a ILCS collective-bargaining 742/30 to the rank pertinent material in a examination must be written department and each shall given for which the examination is study for its written examina reading maintain materials current (50 reading last examinations tion and the list of the two written (West (6) only based on 2004)); points may be seniority ILCS 742/35 of the written as of date department affected service posted be before the written seniority list shall examination and list is promotion preliminary and before the given examination is be seniority computation its shall weight of compiled; authority through collective- appointing determined (7) (50 2004)); promo- ILCS bargaining agreement 742/40 merit, such as for educa- points include for ascertained tion test service; every related to fire tion, and certification skills training, op- given equal shall eligible compete be person agreed points unless otherwise to obtain ascertained merit portunity (West 2004)); collective-bargaining agreement in a subjective components test include evaluation may (9) (50 (West (50 2004)); ILCS preference ILCS a veterans’ 742/50 (10) 2004)); right by the suspected and to review errors 742/55 appointing authority provided by or as otherwise ILCS 742/60 (West 2004)). include, “promotion”

The Act defines to with Promotion further here, “any appointment not or exceptions certain at issue advance- *** (3) that next department ment to a rank within the affected is the highest rank above included a bargaining rank within added.) (West 2004). (Emphasis unit.” 50 ILCS The definition agree position that assistant fire chief falls of within “promotion” under the Promotion Act. prior

The of the Act to the 2006 “applicability” portion Promotion part, amendment in relevant as follows: provided, “(b) rule, any statute, ordinance, or Notwithstanding other laws contrary, department to which promotions all in an affected to applies provided this in in the manner for Act shall be administered Code, Fire Municipal Act. of the Illinois this Provisions Act, ordinances, adopted municipal Protection District or rules pursuant in authority relating laws to such and other they departments apply

affected shall continue extent Act, in the of compatible are this with this but event conflict between any law, and Act shall control. other this (d) and This Act is intended to serve as a minimum standard not to limit: shall be construed to authorize and (1) establishing different or appointing authority an from components,provided or that supplemental criteria uniformly. job-related applied the criteria are and (2) negotiation by bargaining an exclusive employer collective[-]bargainingagree- representative clauses within of conditions,criteria, promo- or ment employees who are members units. of of negotiation by The an employer bargain- and an exclusive representative provisions within a collective[-]bargaining agreement objectives,provided to achieve affirmative action that applicable such clauses are consistent with law. (e) Local Authorities and agents exclusive affected may agree waive one more provisions of its on bargain provisions, provided the contents of those any that such shall permissive subjects waivers be considered bargaining.” added.) (e) (West2004). 742/10(b),(d), (Emphasis Act, following the enactment of the Promotion the Illinois Labor Relations Board decided Village case, represented 211. In that the union employer’s firefighters firefighter/paramedics. employer’s lieutenants, positions immediately the rank firefighter, above were specifically excluded from the unit. provision regarding refused employees of unit to the nonbargaining unit

lieutenant, the next rank outside unit. The appellate Board that it and previously noted courts had held that promotions to nonbargaining positions unit were mandatorily negotiable, referring Park, to Franklin However, in light passage Board

revisited the issue and topic concluded the Promotion Act “makes the ]bargaining positions non[ in the context of fire departments mandatorily negotiable.” decision, 4-1a specifically found: language pointedly providing

“[T]he included FDPA’s terms shall serve as a minimum standard and directed interpreting bodies its should terms be promotions, to authorize and not construed limit over view, ]unit which include titles. In there non[ our is way requiring, or, no other language other to read than words, limiting any way, other not ]bargaining non[ unit titles that are Village 21 above unit rank.” Pub. of 211, Employee Rep. at 763. dissented, plain language finding Member Hernandez did Promotion Act authorized but (Ill.) par. 211, require Village Libertyville, it. 21 Pub. of (member Hernandez, dissenting). at 764 2006, 26, May legislature amended the Promotion Effective 10(d)(2): only herein in section changing language issue “(d) standard This Act to serve as a minimum is intended construed to authorize and not to limit: shall be

607 right exclusive by-au-employer -and an negotiation- of negotiate require of an bargaining representative agreement a collective clauses within employees of criteria, for the conditions, or 5, ranks, are this Act who covered as Section defined (Additions indicated are bargaining uni-t-s-r’’ of members underline/italics; strikeout.) 809, §5, deletions 94— (West)). 26, Legis. Serv. 1494 2006 Ill. eff. Legal C. Standard Appeal Review on 1. Standard of statutory interpretation, case a matter Because this involves the Board’s of review to a de novo standard applies this court Regulation, 344 v. Department determination. Wilson Professional (2003) (de an 907, 36, 44 novo review of 897, Ill. 801 N.E.2d App. 3d statutory involving limited to matters agency’s administrative decision However, the Board was if the Promotion is act interpretation). enforce, ambiguous, this court provided created to the statute agency’s administrative determina give would then deference to the Board, 219 County tion. See Will v. Illinois State Labor Relations 884, (1991); 183, 185, City Decatur v. App. Ill. 3d 580 N.E.2d 885 State, County, Municipal Employees & Local American Federation of (1988). 268, 353, 361, 1219, 1222 122 Ill. 2d 522 N.E.2d Statutory Interpretation statute, construing primary consideration is to When legislature’s Burger Luth give determine and effect to the intent. v. (2001). 40, 533, 21, Ill. 2d 545 Hospital, eran General 198 759 N.E.2d legislature’s language intent is the The best evidence of Fire v. Trustees Grove statute itself. Calibraro Board Buffalo 787, Fund, 790 fighters’ App. Pension 367 Ill. 3d 854 N.E.2d (2006). as a whole so that no term is A court must consider the statute Pipeline Texaco-Cities Service superfluous meaningless. rendered (1998). Only McGaw, Ill. 2d 485 Co. v. resort ambiguous may the court where the of the statute is CC-Lake, Inc., statutory Jackim v. to other aids of construction. (2005). 759, 764-65, 842 N.E.2d statute, that raises materially changes a legislature When the alteration, clarification, of the not a presumption change is an Telephone System original Emergency Chiczewski v. statute. (1997). presump That surrounding circumstances the enactment of the tion is rebutted if the interpret the statute. amendment indicate the intended 608 “

Chiczewski, App. 295 Ill. 692 N.E.2d at 694. ‘It proper for a court subsequent to consider a amendment to a statute to legislative determine the intent meaning behind and the of the statute ” prior Chiczewski, to the amendment.’ 295 Ill. 3d 692 Olson, N.E.2d at quoting Bloink v. 715-16, (1994). 638 N.E.2d 410

The Promotion Act enacted approximately years was nine after the Franklin Park decision. When statutes are enacted judicial after opinions published, presumed are it is legislature acted with knowledge prevailing People Hickman, case law. v. 163 Ill. 2d (1994). 250, 262, 644 N.E.2d “A statute should not be change construed to effect a in the settled law of the State unless its clearly require terms such a In May County construction.” re 1991 Will (1992). Jury, Grand While state, legislature Act, did not in enacting the Promotion that it overruling decision, was the Franklin Park suggests the statute legislature’s Moreover, intent to overrule Franklin Park. the 2006 legislative amendment and history clarify that intent and specifically address those issues raised in the Libertyville case decided (Village Libertyville, Board

D. The 2003 Version Promotion Act Required Bargaining

Over Promotions to Assistant Fire Chief In response to the amendment to the Promotion City agreed Union of assistant fire chief mandatory subject bargaining. However, were a continues dispute that it committed an practice past, argu- unfair labor in the in question prior the time to the 2006 amendment to the — subject Promotion Act—the Promotion Act made the permissive bargaining, subject, not a mandatory change and did not law set forth Franklin Park. City argues plain and ordinary meaning of the 2003 ver- 10(d)(2) allowed, require,

sion of section but did not nonbargaining positions. support (1) claim, City argues phrase its as follows: “authorize and mandatory duty not to limit” is inconsistent with the creation of a and reading “require” such to mean would lead to absurd 10(d)(1) (2) (d)(3); applied results when to sections purpose promo- the Promotion Act was to establish minimum standards for the process scope employer’s bargaining and not to define the of an (3) 10(d)(2) duty; change section should be construed to effect fully presumption the law because a exists that the was yet aware of the decision in Franklin Park and did not state its inten- 2006 amendment it; legislature’s tion to overrule change the law. intended to whole, the Promotion that as a argue the Union

The Board and make Assembly to an intent the General Act manifests bargain- highest the immediately rank above criteria for the nonunit (see, e.g., 50 ILCS subject bargaining ing mandatory rank a unit 10(d)(2) (authorizing negotiation (defining “promotion”), conditions, criteria, promo- relating clauses 2003)) the 2006 Supp. and bargaining employees) interpretation. this amendment confirms relating to the

This court concludes that issues unit, defined the Promotion as positions outside specifi Act subjects bargaining. The Promotion mandatory are at is position to the cally “promotion” defines to include (West 2004). Park Given that Franklin sue here. See 50 ILCS 742/5 bargain positions outside specifically held that defini subject bargaining, legislature’s ing mandatory are not a above the to include the next rank “promotion” tion of highest rank included in the unit demonstrates Park. See In re 1991 Will legislature’s intent to overrule Franklin (noting Ill. 2d at 604 N.E.2d at 933 County Jury, Grand 152 change in settled unless a statute not be construed to effect a will construction). light such a In of Franklin clearly require its terms promotions to the prohibition mandatory bargaining Park’s on immediately following highest rank next nonunit bargain unit, legislature’s authorization of within the Franklin Park and a ing positions of those reflects a reversal of mandatory bargaining positions. of those mandate for as fol- Dictionary’s provides Black’s definition of “authorize” Law lows: *** formally ap- legal authority; empower 2. To give “1. To (8th Dictionary Law 143 ed.

prove; to sanction.” Black’s did, legislature light prohibi in of Franklin Park’s That is what the posi of these gave legal authority empowered for or tion— tions, i.e., this is mandating bargaining. light of the confusion over (Ill.) Rep. par. 21 Libertyville, Employee sue that surfaced in Pub. language require” in added the “to went back 2006 and 10(d)(2). to section ambigu- most, to limit” is language

At “to authorize 10(d)(2) Act reading the Promotion applied ous when to section when City, interpret language suggested in full. as To bargaining over nonunit titles manda- Promotion Act does not make the definition of tory, meaningless the inclusion of would render and, essence, in “promotion” legislation section 5 render the (Ill.) meaningless. See 21 Pub. par. 768. (d)(2)

Nonetheless, because the subsection can be read providing and, subject may bargained both as that such be when read whole, in the context of the Promotion as a requiring bargain as promotions, provision ambiguous over such meaning. reasonable debate about its Telephone Harrisonville Co. v. Comm’n, Illinois Commerce Ill. 2d (2004). interpretation Libertyville The Board’s therefore remains relevant to our this (Libertyville, Employee resolution of issue 211) novo, Rep. although give our review is de defer we interpretation ence to the Board’s because the ambiguous. Will, County statute is See 219 Ill. 3d at Moreover, ambiguity permits an examination of legislative history interpreta as well as deference to the Board’s Jackim, tion. See 842 N.E.2d at 1117. legislative history of the Promotion Act to the 2006 amendment contains Senator Reitz’s statement that the bill clarifies requirement employer bargain promotions like the one at issue here: you, Speaker. follow-up

“Thank Mr. Senate Bill a from a 827 is years ago. just requirement Bill we did a few It clarifies the that a employer bargain, agent, ...for an to as the exclusive conditions, criteria, procedures for the employees. firefighters It affects...it’s an initiative of the I’d your appreciate support happy any questions. and I’d be to answer just it applica... applicable positions But clarifies the and it’s an Assem., 28, agreed Proceedings, Bill.” 94th Ill. Gen. House March (statements Reitz). 2006, Representative at 3-4 Assem., Proceedings, See 94th Ill. March also Gen. Senate (statements Link). Senator intended The use of the term “clarifies” indicates subjects bargaining all mandatory the Promotion Act to make promotions nonbargaining positions the next rank unit. This 2006 above the rank included within Board’s legislature again affirmed the amendment also indicates Libertyville. decision in However, conclude, ambiguous.

To of the statute is Reitz, the fact that the Promo- given Representative the comments of and the amend- changed articulated in Franklin Park tion giving deference to the Board’s deci- adopting Libertyville, ment sion, original 2003 version of the Promotion we conclude that the with the Union position. assistant fire chief

III. CONCLUSION reasons, affirm the Board’s decision. foregoing For the we Affirmed.

KNECHT, J., concurs. COOK, dissenting:

JUSTICE important employ are both to unions and to Promotion promote only employees, ers. If an is allowed to antiunion hand, On the other if the may the survival of the union be threatened. might up running the union end promotions, union controls managerial authority. The solu company, destroying any pretense of provide legislative ground promo tion has middle of neutral been to Leaving mandatory procedures. promotion procedures collec solution; bargaining may impasse tive not be a if an is reached and the arbitrator, employer may matter is resolved still lose important rights agreement. all are without its Promotions at levels important employers, supervisory positions but are particularly important. Department Management See Central Ill. App. Services v. Illinois State Labor Relations (noting prounion the concern that bias might impair supervisor’s ability apply employer’s policies). Act) lines,

Along these the Promotion Act set promotion procedures. minimum standards for The 2003 Promotion comprehensive department promotional Act was a restatement of fire procedures. provisions It followed and to some extent modified set out in the Board of Fire and Police Commissioners Division of the Illinois Municipal pars. through Code. Ill. Rev. ch. 10—2.1—1 Stat. It in Village 10—2.1—30. followed the First District’s decision Park, Franklin which had endorsed a decision of the Under the 2003 Promotion Board. in eligibility requirements published year shall be advance and all 742/15(b) (West shall an given equal opportunity. members 2004). be 50 ILCS person’s The and a employer prepare shall list position on that list shall be determined certain listed factors. 50 (b) (West 2004). 742/20(a), Appointments ILCS shall be made ac list, having right rankings employer cordance with on the with the 742/20(d) (West pass 50 ILCS person some circumstances. may impartial persons The Union select as observers. 50 ILCS 742/25(b) (West 2004). weight given any component may test (West 2004). employer. be set at the discretion 50 ILCS 742/35(a) questions pertinent. Test and materials must be 50 ILCS (West 2004). right Examinees have the to obtain their scores im- 742/35(b) (West 2004). mediately and review their answers. 50 ILCS employer personnel may questions No see the before the examination. 742/35(c) (West 2004). points 50 ILCS The basis for ascertained merit persons given op- published equal shall be in advance and all an 742/45(a) (West 2004). Subjective portunity. 50 ILCS evaluation components prior application, shall be identified to all candidates be 742/50(b) (West 2004). job-related, applied uniformly. and be 50 ILCS may It be a mistake to describe these standards as “minimum may a better phrase. standards.” “Default standards” be changed are not set in stone and can be if the union and the standards beyond a limit employer They choose to do so. do not set which parties go. provided: cannot The 2003 Promotion Act “(d) This Act is intended to serve as a minimum standard and limit:

shall be construed to authorize and not to bargain- negotiation an exclusive collective[-]bargaining ing representative of clauses within a agreement relating to conditions, criteria, procedures for the bargaining units.” employees who are members of 742/10(d)(2)(West2004). 50 ILCS (West 2004) (weight components of test shall See also 50 ILCS 742/30 by negotiations employer be to modification between union). Act addressed in the Board’s 2005 deci

The 2003 Promotion case, Libertyville. sought In that the Union manda Village sion from the Promotion tory bargaining proposal depart over its nonbargaining regarding promotions recognized depart that the could from the lieutenant. The ALJ that the 2003 Promo rejected argument minimum standards but mandatory bargaining, concluding that the 2003 tion Act are to abide “simply employers establishes that permits minimum [Promotion Act] set forth in the requirements promotions.” Village parties to (Ill.) S—CA—05— par. 21 Pub. No. (Illinois Panel, deci ALJ recommended 045, at Labor State (ALJ 2005) (hereinafter recom Libertyville April and order sion decision)). significant it The ALJ found mended negotiation in “mandatory” it referred to the term when did not use (West 2004)). (ALJ 742/10(d)(2) 10(d)(2) (50 Libertyville section decision), Rep. at 767. Employee 21 Pub. recommended however, In a one member dissent- surprising decision ALJ, ing, concluding that its decision was reversed the decision of the required by the 2003 Promotion Act: pointedly language providing

“[T]he included that [2003 Promotion terms as a minimum standard Act’s] shall serve interpreting language and directed bodies that that its terms should bargaining promo be construed to authorize and not limit over view, tions, In non[ ]unit which include to titles. our way requiring, there is no other to read this other than words, or, limiting any way, bargain parties other not that promotions bargaining unit im non[ over to titles that are (ALJ mediately highest above the unit rank.” recom decision), EmployeeRep. par. mended at 763. The words “not limit” “requiring”? must be.read as The 2003 Promo “meaningless” bargaining would be unless it mandates promotions appealed, nonunit titles? The decision was but unfortunately appellate the case was settled before the court ad could majority dress it. The asserts that the 2003 Promotion Act overruled App. Franklin Park. 373 Ill. 3d The at 608. 2003 Promotion Act did not overrule Franklin Park. Franklin Park was “overruled” Board’s in Libertyville. present op decision Our case is first portunity Libertyville. for court to review the Board’s decision in

Franklin Park is emphatic rejection argument noted for its of the that predecessor imposed duty statutes on the employer criteria for nonunit employees. captains “That are not *** bargaining analysis argument. members unit controls Park, The represent captains.” App. Union does not Franklin 265 Ill. however, significant, rejec 638 N.E.2d at 1149. Also is its tion of the employer’s appeal. argued had that even negotiation required, negotiate where was could below legislature. example, the minimum standards established For employer argued highest- that proposal the union’s ranking promoted provision Municipal candidate be violated the high Code that having “[a]ll shall be made from the 3 rating.” est Ill. Rev. Stat. ch. The court 10—2.1—15. rejected argument, concluding provisions those shall not be “limiting” duty bargain collectively. construed as Franklin Park, 638 N.E.2d at 1149. That conclusion employees bargaining unit, related to in the where mandatory. If the dealing permissive court had been with an area of bargaining, employees, nonunit other it would have said “such limiting duty bargain permissively.” shall not be construed as again say the 2003 Promotion Act the “limit” is used to word 742/10(d) (West ILCS controlling. minimum standards are not address form of The word does not what standards. go beyond the minimum “promo is made that the definition of the word argument to a rank Act to include advancement tion” the 2003 Promotion rank above the rank included “that is the next 2004)) overturned within a unit” do not see that to be the case. Franklin Park. 373 Ill. 609.1 police depart fire and Municipal applicable Code standards Park, be limited to ments, appear in Franklin did not considered See, e.g., unit. Ill. Rev. Stat. inside the comprehensive Act was a ch. 10—2.1—15.The 2003 Promotion and to some minimum both inside setting act standards outside, The 2003 Promotion Act extent, unit. long-standing rule that there expressed no intention to overturn the outside employees criteria for duty bargain was no unit. In bolster the Board’s decision perhaps to 10(d)(2) amending section specific provision, enacted a legislature bargaining representative to right an exclusive recognize “[t]he collective[-]bargaining negotiate clauses within require conditions, criteria, promo for the relating to agreement ranks, covered employees [s]ection as tion of defined underlined/italicized.) (Added 809, §5, eff. Pub. Act language Act.” 94— (West)). The amendment Legis. Ill. Serv. 1494 May 10(d)(2), major meaning of section but clearly change seems to “clarifies” his remarks legislator’s use of the word ity upon seizes dangers using illustrates the majority’s the floor. The stretch on statute, particularly single legislator interpret passing remarks of a statute. in the support find no when those remarks only “clarified” the 2006 amendment majority’s holding that the amend holding that the 2006 contrary is to its 2003 Promotion Act indicate specifically did not “[T]he ment is not retroactive. retroactively ***.” 373 apply the amendment would “clarified” to make the however, uses the word majority, 603. amendment retroactive. case, of the 2003 Promotion passage after the present

In the City decision, that “the the Union asserted Libertyville hut before the *** weights assigned to various formal that “we commence test” and demanded components of the exam.” Chief Assistant over the new negotiations of the 2003 minimum standards that complain did not Union City complaint was met. Its Act had not been bargain. City held had refused to June Board unfair rescind practice committed an labor ordered any promotions May fire chief made after assistant decided, incorrectly and because Libertyville 2004. Because unit were not a of manda- outside I tory amendment, until would the 2006 reverse. KUNZ, Plaintiff-Appellant

BETTY and Cross-Appellee, v. LITTLE COMPANY CENTERS, OF MARY Defendant-Appellee HOSPITAL AND HEALTH CARE (Manor Defendants). Services, Cross-Appellant Inc., al., Care Health et (6th Division) 1-06-1707, First District Nos. - 1814 cons. 1-06 Opinion 4,May May 17, Rehearing filed denied 2007. Modified 2007. opinion filed on

Case Details

Case Name: City of Bloomington v. Illinois Labor Relations Board

Court Name: Appellate Court of Illinois

Date Published: May 3, 2007

Citation: 871 N.E.2d 752

Docket Number: 4-06-0774

Court Abbreviation: Ill. App. Ct.