author: JUSTICE LINN

text:
    CENTRAL CITY EDUCATION ASSOCIATION, IEA-NEA, Petitioner-Appellant, v. THE ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD et al., Respondents-Appellees.
    First District (4th Division)
    No. 1—89—0919
    Opinion filed May 24, 1990.

      Winston & Strawn, of Chicago, and Sandra Holman, of Springfield (Gregory J. Malovance, Jane Clark Casey, and William G. Miossi, of counsel), for petitioner.
    Neil E Hartigan, Attorney General, of Springfield, and Miller, Tracy, Braun & Wilson, of Monticello (Robert J. Ruiz, Solicitor General, and Ann Plunkett-Sheldon, Assistant Attorney General, both of Chicago, and S. Jeff Funk, of counsel), for respondents.
    Cornfield & Feldman, of Chicago (Stephen A. Yokich, of counsel), for amicus curiae Illinois Federation of Teachers.
   JUSTICE LINN

delivered the opinion of the court:

Petitioner-appellant, Central City Education Association, IEA-NEA (Association), seeks administrative review of the March 2, 1989, opinion and order of the Illinois Educational Labor Relations Board (IELRB or Board). In that decision, the Board determined that Central City School District No. 133 (District) did not violate the Illinois Educational Labor Relations Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 1701 et seq.) by reducing its work force for economic reasons without first submitting to bargaining with the Association.

On appeal, the Association raises two issues: (1) The Board erred in concluding that the District’s decision to lay off four teachers for economic reasons was not a topic of mandatory collective bargaining; and (2) the Board erred in finding that the District satisfied its obligation to bargain with the Association concerning the impact of the decision to lay off employees for economic reasons. The Illinois Federation of Teachers filed an amicus brief challenging the Board’s use of its so-called “balancing test” for determining what constitutes a mandatory subject of bargaining. Both respondents-appellees, the Board and the District, filed briefs in support of their positions.

For the reasons that follow, we reverse.

Background

The parties filed a joint stipulation of the record before the Board, and therefore the facts are not in dispute.

Central City School District No. 133 is a school district for kindergarten through eighth grade. The District employed approximately 18 certified employees for the school year of 1986-87. On January 16, 1987, the District sent a letter to all certified personnel advising that a reduction in force was possible for the upcoming year. Two Association representatives and the superintendent met to discuss that possibility. The superintendent told the Association representatives that program cuts were not likely for the upcoming year and any reductions in force probably would not affect the two representatives. The Association also alleges that the superintendent went further, telling its representatives that there were ways to get around program cuts; that cuts in programs and personnel were not expected; but that if there were any layoffs, it would be only one person.

On March 10, 1987, the District’s board of education voted to dismiss one nontenured certified employee and to eliminate three full-time positions occupied by tenured teachers. This action was to become effective at the end of the 1986-87 school year, in June 1987, and the teachers involved were so notified by letter.

The Association is the exclusive representative of the Districts’ full-time certified personnel. Prior to March 10, there were no collective bargaining negotiations. By letter dated March 13, 1987, the president of the Association (one of the laid-off, tenured teachers) expressed surprise regarding the District’s decision and demanded to bargain the decision to reduce the faculty and its impact on employee wages, hours, terms and conditions of employment.

The District cited its “fragile” financial condition, desire to save money by reducing labor costs, and declining student enrollment. The courses that were taught by the laid-off teachers were offered again during the 1987-88 school year. The laid-off teachers had taught eighth-grade remedial math and language arts, sixth grade, and gym.

On March 27, 1987, the Association filed unfair labor practice charges with the Illinois Educational Labor Relations Board regarding the District’s reduction in force of four bargaining unit employees without prior bargaining with the Association. The Association also submitted to the District bargaining proposals regarding the staff reductions.

On April 3, 1987, the District notified the Association that it was willing to bargain the impact of the reductions in force, and eventually, in connection with the upcoming 1987-88 school year, the parties did bargain over the impact of the previous reduction in force.

The parties submitted briefs and argument before the Board and filed a joint stipulation of record. The Board issued its opinion and order on March 2, 1989, two out of three members holding that the initial decision to reduce force is not a mandatory subject of bargaining. The majority further found that while the impact of such a decision is mandatory subject of bargaining, the District had met its obligations to bargain the impact.

Opinion

I

The Board requests us to dismiss the appeal for lack of jurisdiction because the petition for review was filed within 35 days, under the Administrative Review Law (Ill. Rev. Stat. 1987, ch. 110, par. 3—103), rather than within 30 days, under Supreme Court Rule 303(a) (107 Ill. 2d 303(a)). At the time the Association’s petition was filed, the 35-day period was accepted, at least implicitly, as the proper limitation period on seeking review of the IELRB’s final orders. (See Board of Education of Plainfield Community Consolidated School District No. 202 v. Illinois Educational Labor Relations Board (1986), 143 Ill. App. 3d 898, 493 N.E.2d 1130; Board of Education of Jacksonville, School District No. 117 v. Illinois Educational Labor Relations Board (1989), 183 Ill. App. 3d 972, 539 N.E.2d 882; Hardin County Education Association v. Illinois Educational Labor Relations Board (1988), 174 Ill. App. 3d 168, 528 N.E.2d 737.) In fact, the Board’s order in the pending case expressly directs “aggrieved parties” to seek judicial review in the appellate court in accordance with the provisions of the Administrative Review Law, and states that “judicial review must be sought within 35 days of the issuance of this Order.”

The Board cites the recent decision of another division of this court, County of Cook, Cermak Health Services v. Illinois Local Labor Relations Board (1989), 189 Ill. App. 3d 1057, 545 N.E.2d 934, appeal allowed (1990), 131 Ill. 2d 558 (Cermak). In that case, the fifth division determined that Supreme Court Rule 335(h), by implication, “establishes that Rule 303(a) is suitable for direct review of Local Labor Relations Board orders, and that section 3 — 103 of the Administrative Review Law is unsuitable for such review.” 189 Ill. App. 3d at 1060, 551 N.E.2d at 231-32.

The Association argues that since its petition for review was filed two months before the filing of the opinion in Cermak, we should not retroactively apply that court’s “sharp change from well-established and consistent law.” Moreover, the Association points out that, even after Cermak, the Board continued to include in its final orders and opinions language that directs aggrieved parties seeking review in the appellate court to file their petitions within 35 days.

We agree that applying the holding of Cermak to this case would be inequitable, especially since the accepted practice (as demonstrated by the Board’s own notices) has led litigants to rely on the 35-day period for review. We find the fifth division’s analysis to be logical, and we agree that neither the legislature nor an administrative agency can abrogate the supreme court rules governing appeals. Nevertheless, for us to hold that we have no jurisdiction over this appeal would penalize a litigant for complying with the accepted practice and case law in effect at the time it filed its petition for review. Such a result is unfair.

We do not imply that we have power to hear cases over which we lack jurisdiction. If a party attempts to appeal from a nonfinal order we must dismiss it as untimely. Under Supreme Court Rule 304(a), we may review final orders that are not immediately appealable if that order disposes of one branch of ongoing litigation and the trial court expressly finds that there is no just cause for delaying enforcement or appeal of that order. In such cases, the limits on appeals protect the court from being asked to render advisory opinions or review cases piecemeal. The appeal in the pending case, however, is from a final and appealable order. There is no threat to the appellate process, unless the legislative enactment of the Illinois Supreme Court as to the time for filing notices of appeal under its rules. While we believe that the Cermak rationale for applying the 30-day period of Rule 303(a) may be valid, we do not find that retroactive application serves any useful purpose. On the contrary, it may result in the ambush of unwary appellants who had no previous reason to question the 35-day period. Accordingly, we decline to dispose of this appeal on the basis of Cermak. See Elg v. Whittington (1987), 119 Ill. 2d 344, 357, 518 N.E.2d 1232, 1238 (“[A] new rule or decision will be given prospective operation whenever injustice or hardship due to justifiable reliance on the overruled decisions would thereby be averted”).

II

Under the facts of this case, does the Illinois Educational Labor Relations Act require the District to collectively bargain its decision to reduce force for economic reasons before such decision is implemented? Ill. Rev. Stat. 1987, ch. 48, pars. 1704, 1710(a).

In Illinois, as in other States, educational employers and employees must bargain certain issues, in good faith and to an impasse, as part of the collective bargaining law. Section 10(a) of the Act describes the general duty to bargain:

“(a) An educational employer and the exclusive representative have the authority and the duty to bargain collectively as set forth in this Section. Collective bargaining is the performance of the mutual obligations of the educational employer and the representative of the educational employees to meet at reasonable times and confer in good faith with respect to wages, hours and other terms and conditions of employment, and to execute a written contract incorporating any agreement reached by such obligation, provided such obligation does not compel either party to agree to a proposal or require the making of a concession.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 48, par. 1710(a).

Section 4 of the Act, the “employer rights” provision, states in pertinent part:

“Employers shall not be required to bargain over matters of inherent managerial policy, which shall include such areas of discretion or policy as the functions of the employer, standards of services, its overall budget, the organizational structure and selection of new employees and discretion of employees. Employers, however, shall be required to bargain collectively with regard to policy matters directly affecting wages, hours and terms and conditions of employment as well as the impact thereon upon request by employee representatives.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 48, par. 1704.

According to the Association, section 10(a) is the starting point of the analysis of the duty to bargain, and, in this case, the end. According to the Association, if the subject in issue is wages, hours, or other terms and conditions of employment, it is a mandatory topic of bargaining under section 10(a), and no further analysis is necessary. Because the economic layoff of teachers directly affects the terms and conditions of employment, the Association argues, the District violated its duty to bargain over the layoffs.

The District, on the other hand, contends that section 10(a) must be read in conjunction with section 4 of the Act, the “employers’ rights” provision. That section reserves certain managerial decisions to the employer without the need for bargaining. The IELRB has formulated a three-step analysis for determining which issues must be bargained: If the decision in issue does not involve wages, hours, or terms and conditions of employment, there is no duty to bargain. If it does involve one of those categories under section 10, the analysis proceeds to step two. This step entails finding whether the matter in issue also involves a matter of “inherent managerial policy” under section 4 of the Act. If not, the matter is a subject of mandatory bargaining. If so, the third step-is triggered, the balancing test. This test weighs the interests of the employees in bargaining the issue against the District’s interest in maintaining unfettered control over the managerial policy involved. If the employees’ interests are deemed to prevail, the issue must be bargained. If management’s interest is deemed greater, however, it is not a mandatory subject of bargaining and is considered to have only an “indirect” effect on the wages, hours, or terms and conditions of employment.

The Fourth District Appellate Court approved the Board’s use of a balancing test in Decatur Board of Education, District No. 61 v. Illinois Educational Labor Relations Board (1989), 180 Ill. App. 3d 770, 536 N.E.2d 743.

APPLICABILITY AND FORMULATION OF THE BALANCING TEST

Because of the initial controversy over the propriety of using a balancing test, we first consider the test in terms of statutory construction.

Section 10(a) sets out the duty to bargain over employees’ wages, hours, and terms and conditions of employment, and section 4 exempts from bargaining those matters that may be characterized as management-related concerns of the educational employer. We find no conflict, in the abstract, between the two sections. The second sentence of section 4, however, reads as a qualifier or limitation on the management-related exemptions to the duty to bargain; it recognizes that even those topics that are managerial concerns yield to the duty to bargain if they “directly affect” the employees’ wages, hours and terms and conditions of employment. The Act does not mention a balancing test. Such a test would not appear to be necessary if the notion of what management policies directly affect wages, hours, and terms and conditions of employment was capable of clear definition and easy understanding. Unfortunately, it is not.

In the pending case, it is undisputed that laying off teachers greatly affects their wages, hours, and terms and conditions of employment. Nor is it disputed that, under section 4, matters relating to overall educational policy, budgeting, and organization are managerial concerns that do not mandate bargaining, at least unless they “directly affect” wages, hours and terms and conditions of employment. The major point of contention, then, is the test to be applied when a particular issue (here, layoffs) but only affects terms and conditions of employment, but also affects important managerial policy. In such instances, the balancing test has been adopted as a reasonable approach to harmonize competing interests, under the rubric of whether the subject in issue directly, or only indirectly, affects the employees’ wages, hours, and terms and conditions of employment.

We find that the Labor Board’s adoption of such an approach is not unreasonable and therefore should be followed. (See Hardin County Educational Association v. Illinois Educational Labor Relations Board (1988), 174 Ill. App. 3d 168, 528 N.E.2d 737.) We do not agree with petitioner’s interpretation of the Act. Its theory is that, under section 10(a), once the determination is made that an issue involves an employee term or condition of employment, that issue must be bargained without further consideration of section 4 concerns. Such an interpretation, however, could well complicate the practical determination of whether a particular issue, claimed to be one of managerial prerogative on the one hand and also one involving employees’ hours, wages, and terms and conditions of employment on the other, could ever be resolved in a manner consistent with the policies of the Act. As the Fourth District Appellate court has observed:

“Several factors support the adoption of a balancing test. Governor James Thompson mentioned the need to balance employers’ and employees’ interests in his Amendatory Veto Message of the Act [citation]. The Pennsylvania Public Employees Relations Act (Pa. Stat. Ann. tit. 43 §1101.201 et seq. (Purdon Supp. 1988)), which applies to school districts, served as a guideline in the preparation of the Illinois Act. The courts of Pennsylvania have approved the use of a balancing test. [Citation.] *** A balancing test has also been adopted by the Illinois State Labor Relations Board [citation], which may also be considered as persuasive authority. See Ill. Rev. Stat. 1987, ch. 48, par. 1717.” Decatur Board of Education, District No. 61 v. Illinois Educational Labor Relations Board (1989), 180 Ill. App. 3d 770, 774, 536 N.E.2d 743, 745-46.

We conclude that if the topic in issue appears to be both a matter involving terms and conditions of employment and one of management prerogative, use of the balancing test is proper.

The real problem is the application of the balancing test. In Decatur, the court found that the “Board members all agree[d] that a finding of direct effect, under the second sentence of section 4, did not automatically result in mandatory bargaining. The Board adopted a balancing test whereby, after finding a direct effect exists, the interests of the employees are weighed against the School District’s interest in maintaining unencumbered control over the managerial policy.” 180 Ill. App. 3d at 772, 536 N.E.2d at 745.

The opinion and order of the Board in that case, however, actually stated the test differently. On petition for rehearing, this discrepancy was brought to the court’s attention. The following excerpt is taken from the appellate court’s supplemental opinion on denial of rehearing and quotes the IELRB’s order and opinion as follows:

“ ‘[The Act provides that when a given subject is both a term and condition of employment and a policy matter reserved to management,] those policy matters “directly affecting wages, hours and terms and conditions of employment” must be bargained. In Berkeley, we said that “policy matters directly affecting wages, hours and terms and conditions of employment” are those policies that have “wages, hours and terms and conditions of employment as their primary subject ***” [Berkeley School District No. 87, 2 Pub. Employee Rep. (Ill.) par. 1066, No. 84—CA —0057—C (Illinois Educational Labor Relations Board, May 30, 1986)]. When a given subject is both a term and condition of employment and a managerial prerogative, the question becomes how to determine if a policy has “wages, hours and terms and conditions of employment as [its] primary subject” under Berkeley. We believe that such policies should be identified by using a balancing test.’ ” 180 Ill. App. 3d at 779, 536 N.E.2d at 749.

In its supplemental opinion, the Decatur court then quoted an excerpt from the March 2, 1989, opinion and order rendered by the Board in the pending case (Central City School District No. 138), in which the Board commented upon the Decatur court’s restatement of the balancing test:

“ ‘[In Decatur], the Appellate Court stated in passing that the IELRB balances the competing interests “after finding a direct effect exists” (i.e., that a policy decision directly affects wages, hours and terms and conditions of employment). Rather, we balance the competing interests only after determining that a given subject is both “wages, hours, and terms and conditions of employment” and a matter of educational policy. We then apply our balancing test to determine if the policy matter “directly affects) wages, hours and terms and conditions of employment” within the meaning of the second sentence of Section 4 of the Act. ***’ ” (Emphasis added.) 180 Ill. App. 3d at 780, 536 N.E.2d at 749.

The Decatur court, while recognizing that “a problem of sematics may be involved” in the differing statements of the balancing test, nevertheless let stand its own interpretation of the Act. The court thereby altered the Board’s formulation of its test in a subtle but significant way.

While we wish to tread carefully through the thickets of administrative and judicial interpretations, we agree with the IELRB’s formulation of the terms of the Act itself. We also believe the problem goes beyond semantics because it may well tilt the balancing test toward management prerogatives, in contravention of the Act.

The second sentence of section 4 provides, “Employees *** shall be required to bargain collectively with regard to policy matters directly affecting wages, hours and terms and conditions of employment as well as the impact thereon upon request by employee representatives.(Emphasis added.) (Ill. Rev. Stat. 1987, ch. 48, par. 1704.) We believe that this sentence is an express limitation on employer rights to refuse bargaining in cases in which managerial policy is implicated, but the matters nevertheless directly affect the employee’s terms and conditions. Therefore, the balancing of competing interests requires a factual determination of whether the subject in issue has a “direct” or “indirect” affect on the terms and conditions of employment; or, as the Labor Board stated in Berkeley, whether the issue has for its “primary subject” employee wages, hours, and terms and conditions of employment.

In the pending case, the School District agreed to bargain over the “impact” of its decision to reduce its force for economic reasons, but refused to bargain the initial decision. The second sentence of section 4, however, does not differentiate between the decision itself and its impact, when mandatory bargaining is required under the “directly affecting” provision of that section. Accordingly, the fact that impact bargaining occurred after the layoff decision was made does not, in our opinion, cure the violation if the initial decision is one subject to mandatory bargaining.

THE BOARD’S APPLICATION OF ITS BALANCING TEST

The Board applied its balancing test as follows. First, it found “little doubt that an educational employer’s decision to eliminate bargaining unit positions constitutes a ‘term and condition of employment.’ ” The Board cited Fibreboard Paper Products Corp. v. NLRB (1964), 379 U.S. 203, 13 L. Ed. 2d 233, 85 S. Ct. 398, which stated that the words “terms and conditions of employment” plainly covered termination of employment. Next, the Board found that “a management decision to RIF (reduction in force) necessarily implicates several of the prerogatives that the Governor and legislature sought to preserve to the employer in Section 4 of the Act. Standards of services, overall budget and sometimes even organizational structure, are fundamental components of any decision to RIF.” The Board cited some of the situations in which RIF decisions may be fundamentally related to management’s ability to control the budget, set educational services, and restructure its program based on the elimination of positions.

Having found that the RIF decision was both a matter affecting terms and conditions of employment and a matter of inherent managerial policy, the Board attempted to balance “management’s need for unencumbered control against the employees’ interest in bargaining the subject matter.” After acknowledging that the District’s decision “significantly” affected the four terminated teachers, the Board went on to hold:

“RIF decisions are inseparable from the District’s responsibility and ability to determine its standards of services and overall budget. These responsibilities are close to the core of the educational employer’s prerogative to manage the educational system. Requiring collective bargaining over decisions to reduce the number of teachers would impinge heavily on management’s right and ability to make such basic educational policy decisions and choices. Consequently, we conclude that management’s need to freely determine educational policy outweighs the interests of employees in bargaining over such decisions. Thus, the effect on teachers’ wages, hours and terms and conditions of employment of a decision to RIF, while substantial, is ‘indirect.’ ”

We pause at the notion of a “substantial” effect that is also “indirect.” Such logic aside, we are concerned that the above-stated conclusion fails to comport with the specific facts of this case. The only stated reasons for the layoffs were economic ones. Granted, budget planning, educational services, and organizational restructuring are all matters that may be greatly affected by management’s ability to reduce its personnel. We do not argue with the Board’s recognition, in a proper case, that the balance of fact-based concerns may favor management’s RIF without prior bargaining with the Association. For example, the elimination of a course that is not considered important to the educational goals of a District may result in the elimination of a teacher’s position, but the balance of factors in such hypothetical could result in the determination that managerial prerogative outweighed employee concerns, resulting in no prior bargaining. See West Ottawa Education Association v. West Ottawa Public Schools Board of Education (1983), 126 Mich. App. 306, 337 N.W.2d 533 (no duty to bargain over elimination of a position caused by district’s decision to drop its Dutch dance program); Jacksonville District No. 117, 4 Pub. Employee Rep. (Ill.) par. 1075 Nos. 85—CA—0025—S, 85—CA—0029 — S (Illinois Educational Labor Relations Board, May 17, 1988) (bona fide decision to restructure maintenance department held not a topic for mandatory bargaining).

In Decatur, the court affirmed the Board’s determination that, under its balancing test, a decision to increase class size was a subject for mandatory bargaining. The Board found that increasing class size directly affects the teachers’ workload, ability to control and discipline the class, ability to effectively carry out teaching, and amount of work required for a fixed compensation. Certainly, class size also relates to the quality of educational services, but the Board concluded that the employees’ interest in bargaining over class size outweighed management’s interest in unencumbered control of that matter.

In the pending case, the reason for the layoff was to save money by eliminating salaries. Availability of revenues undoubtedly involves budgeting, affects the District’s ability to further its educational goals, and otherwise relates to important managerial prerogatives. However, the four teachers who were laid off suffered the total termination of all of their wages, hours, and terms and conditions of employment. The remaining teachers were also affected, since the courses taught by the laid-off teachers were not eliminated from the curriculum. As the dissenting Board member noted, the elimination of the positions therefore either increased the class size of the remaining teachers, or else there has been a decline in enrollment that exactly matches the number of pupils that the laid-off teachers would have taught. No such evidence is of record. While we do not imply that such facts are necessarily required, we believe that the Board’s finding that the balance favors management prerogative must be based on facts of record, or our review is meaningless.

The Board conceded that “at first blush” its decision is difficult to reconcile with its conclusions in Decatur. The Board stated, however, that “there is a basic distinction between decisions to reduce-in-force and decisions regarding class size. Class size is fundamentally a term and condition of employment. Its effect on teacher workload is direct and immediate. In contrast, the decision to RIF is close to the core of management prerogatives and only affects class size, if it does at all, in an indirect way. Therefore, it does not follow that there is any contradiction between our holding in Decatur and our holding today.”

It is difficult to understand how the economically motivated elimination of four positions in a district with 18 employees is less “fundamentally” a term and condition of employment than increasing class size. It may be that some RIF decisions would not “directly affect” the remaining teachers, by increasing their class size or otherwise, as in the case where a position is eliminated because the course is discontinued. Nevertheless, if the balancing test is to have any meaning, it must be applied to the specific facts before the Board, not to assumptions of how the RIF decision is “inherently intertwined” with budget concerns and educational services.

BENEFITS/BURDEN APPROACH TO BALANCING TEST

We wholeheartedly agree with the Board and numerous courts and commentators who have noted the difficulties attendant in balancing employees’ interests with those of management. (See, e.g., West Bend Education Association v. Wisconsin Employment Relations Comm’n (1984), 121 Wis. 2d 1, 9, 357 N.W.2d 534, 538 (“Stating the balancing test, as we have just done, is easier than isolating the applicable competing interests in a specific situation and evaluating them”).) We believe, however, that this recognition only underscores the need for bargaining in those situations which are in fact “amenable” to bargaining; that is, ones in which the benefits to the employees and the bargaining process outweigh the burdens imposed on the employer. The benefits/burden analysis has been cited with approval in several cases, including First National Maintenance Corp. v. NLRB (1981), 452 U.S. 666, 679, 69 L. Ed. 2d 318, 331, 101 S. Ct. 2573, 2581. While that decision arose in the private sector, the Illinois State Labor Relations Board has followed the Supreme Court’s reasoning in public sector cases also. State of Illinois, (Department of Central Management Services), 1 Pub. Employee Rep. (Ill.) par. 2016 No. S—CA—36 (Illinois State Labor Relations Board, Aug. 29, 1985); see American Federation of State, County, & Municipal Employees v. Illinois State Labor Relations Board (1989), 190 Ill. App. 3d 259, 546 N.E.2d 687.

The District’s basic decision to save money, by reducing expenditures in the form of teacher salaries or otherwise, is something that the Board legitimately may view as a managerial right and duty. If the implementation of the decision to reduce costs leads to cutting down on classroom supplies, conserving electricity, water, and heat, or reshaping its program to trim or eliminate specific programs, the Board presumably would remain within its section 4 prerogatives, without the need for mandatory bargaining. When the implementation of the cost-savings program includes laying off employees, terms and conditions of employment are inarguably affected. At this point, the balancing test can be useful in weighing the benefits of bargaining against the burdens to the employer.

DIRECT EFFECTS UNDER SECTION 4 IS DETERMINED BY SPECIFIC FACTS

The benefits/burden concept may be viewed as a practical tool in determining whether the management decision to RIF “directly affects” the terms and conditions of employment. If the layoff is part of a reorganization or elimination of services, the burden on the employer to bargain such an issue may outweigh the benefits of bargaining, because of the Association’s probable inability to propose alternatives that would aid the District in what is essentially a change in curriculum. To go beyond particular facts, however, endangers the delicate balance of the competing interests of employer and employee. As the dissenting Board member in the pending case pointed out, “There is no evidence that this decision to RIF was part of a reorganizational plan. Rather, the decision to lay off in the instant case was motivated solely by economics. Reducing its force is merely one of many means by which an employer can control its overall budget. It is not more central to the inherent managerial policies of controlling the overall budget and standards of services than is class size ***.” (Emphasis added.)2

Part of the problem is the reality that economic-based decisions are by nature subject to tensions between management aims and employee needs. In the private sector, turning a profit is of great importance to management. A RIF decision for economic reasons would therefore seem to be one which would not be subject to mandatory bargaining. On the contrary, much decisional law in the private sector favors mandatory bargaining in such cases. E.g., Lapeer Foundry & Machine, Inc. (July 20, 1988), 289 N.L.R.B. No. 126; United Gilsonite Laboratories, Inc. (November 30, 1988), 291 N.L.R.B. No. 125, 1988-89 NLRB Dec. (CCH), par. 15,260, at 28,604 (“A decision to lay off employees for economic reasons is a mandatory subject of bargaining”).

The United States Supreme Court has recognized that not all work force layoffs are subject to mandatory bargaining, however. In First National Maintenance Corp. v. NLRB (1981), 452 U.S. 666, 69 L. Ed. 2d 318, 101 S. Ct. 2573, the court balanced management’s right to close down part of its operations for economic reasons against the employees’ interest in job security and held in favor of management on the issue of mandatory bargaining. In its earlier decision of Fibreboard Paper Products Corp. v. NLRB (1964), 379 U.S. 203, 13 L. Ed. 2d 233, 85 S. Ct. 398, however, the Court recognized that if the layoff decision did not alter the company’s basic operation, but instead simply replaced the in-house work with a subcontract, the requirement to bargain about the matter would not significantly abridge management’s freedom to manage the business. Hence, bargaining over the layoff decision was mandatory in Fibreboard.

As part of the distinction between the situations in First National and Fibreboard, the Supreme Court noted that mandatory bargaining will be necessary if the subject is “amenable” to resolution through the bargaining process. The desire to reduce labor costs by replacing bargaining unit employees with outside contracts would be amenable to bargaining, while the decision to change a company’s operations or close down part of its operations entirely would not be. (First National Maintenance Corp., 452 U.S. at 680, 686, 69 L. Ed. 2d at 331, 335, 101 S. Ct. at 2581, 2584. See also Otis Elevator Co. (April 6, 1984), 269 N.L.R.B. 891, 893 (“[I]f the decision in fact turns on direct modification of labor costs and not on a change in basic direction or nature of the employer enterprise,” then the decision is a mandatory subject of bargaining).

The Illinois Educational Labor Relations Board has expressed doubt that a labor cost analysis is of particular relevance in the public service sector, noting that while labor costs might be one of the factors to balance “it does not serve as a pivot point for the mandatory/permissive distinctions as it does in the private sector.” (Jacksonville District No. 117, 4 Pub. Employee Rep. (Ill.) par. 1075 Nos. 85—CA—0025—S, 85—CA—0029—S (Illinois Educational Labor Relations Board, May 17, 1988), p. IX-312).) We agree that educational employers’ concerns are different from private employers’ aims to increase profits. Nevertheless, if the main reason for the layoff is to save money by eliminating teacher salaries (as distinct from other reasons previously mentioned), we believe that mandatory bargaining over- that decision may well advance the policies of the Act by allowing the employees’ representative to suggest cost-saving alternatives to the layoff. The burden to the District has not been established, beyond mere inconvenience and speculation. Here, the layoff decision was not part of eliminating unneeded courses, nor did it otherwise signal a change in the educational policy or basic services of the school. We conclude that the Board’s decision was against the manifest weight of the evidence.

MANDATORY BARGAINING IN THIS CASE IS ANALYTICALLY CONSISTENT WITH PRIOR BOARD DECISIONS

We do not mean to denigrate the Board’s expertise or restrict its role as fact finder in applying the balancing test. As implied earlier, part of the difficulty in the pending case is reconciling the Board’s decision in Decatur (increased class size must be bargained), with the Board’s decision in the case before us (the layoff of four teachers for economic reasons need not). Prior decisions of the Board suggest that the layoff in the pending case should be put in the mandatory bargaining column.

In Wilmette School District No. 39, 4 Pub. Employee Rep. (Ill.) par. 1038 No. 85—CA—0078—C (Illinois Educational Labor Relations Board, Feb. 11, 1988), the Board found that a district decision to decrease lunch hours (to conform with State law requiring 300 minutes of class time per day) required bargaining as affecting employees’ hours, despite the district’s contention that its decision to increase teacher instructional time and decrease lunch time was a matter of inherent managerial policy. In Mundelein Elementary School District No. 75, 4 Pub. Employee Rep. (Ill.) par. 1052 (Illinois Educational Relations Board, Mar. 4, 1988), No. 85—CA—0057—C order vacated on other grounds, Board of Education of Mundelein Elementary School District No. 75 v. Illinois Educational Labor Relations Board (1989), 179 Ill. App. 3d 696, 534 N.E.2d 1022, the Board held that although the initial decision to change from a junior high school to a middle school format was not in contention, the resulting unilateral addition of a class period to the teachers’ workload was a matter requiring bargaining. The Board noted that the potential change in workload should not be treated only as an “impact” bargaining obligation stemming from the decision to reorganize.

Similarly, the District’s decision here, to save money as part of overall budgeting, is not itself the bargainable decision. As the IELRB noted in Mundelein, however, the implementation of the decision (resulting in the layoff of four teachers) should not be treated as an impact bargaining obligation alone.

Wilmette, Mundelein and Decatur all recognized the need for mandatory bargaining of District decisions that directly affect wages, hours, and terms and conditions of employment, although the balancing test was not expressed until Decatur. In Berkeley School District No. 87, 2 Pub. Employee Rep. (Ill.) par. 1066 (Illinois Educational Labor Relations Board, May 30, 1986), the IELRB held that the district’s decision to change the nature of its athletic program did not have wages, hours, or terms and conditions of employment as its primary subject. Therefore, it was not a mandatory subject of bargaining. See also Jacksonville District No. 117, 4 Pub. Employee Rep. (Ill.) par. 1075 Nos. 85—CA—0025—S, 85—CA—0029—S (Illinois Educational Labor Relations Board, May 17, 1988) (bona fide decision to restructure maintenance department held not mandatorily bargainable).

In each of these cases it appears that the Board was able to distinguish between decisions that squarely affected hours, wages and terms and conditions (decrease in lunch hour, increase in class size, addition of another class period to the workload) and, in the cases of Berkeley and Jacksonville, decisions that primarily involved restructuring or organizational changes. The first group appears “amenable” to bargaining because employee input has a greater likelihood of resulting in satisfactory solutions than the second situation, where the management decision is to restructure part of its operations. See also Community Consolidated School District No. 59, 3 Pub. Employee Rep. (Ill.) par. 1094 No. 56—CA—0012—C (Illinois Educational Labor Relations Board, July 23, 1987) (teacher evaluation plans subject to mandatory bargaining).

OTHER JURISDICTIONS

Cases from other States are of limited help because decisions both in support of and against mandatory bargaining in layoff situations exist. For example, Michigan and Wisconsin find that, under their statutes, public employees have no duty to bargain over the decision to lay off employees for budgetary reasons, although the impact of such decisions must be bargained. (See, e.g., Schoolcraft College Association of Office Personnel/MESPA v. Schoolcraft Community College (1986), 156 Mich. App. 754, 401 N.W.2d 915; City of Brookfield v. Wisconsin Employment Relations Comm’n (1979), 87 Wis. 2d 819, 275 N.W.2d 723.) Other States find a duty to bargain reduction in force. See School Committee of Newton v. Labor Relations Comm’n (1983), 388 Mass. 557, 563, 447 N.E.2d 1201, 1206 (layoffs involve “the very essence of the [employment] relationship, the employment itself, and not a peripheral matter”).

As one court recognized, “The case law in this area varies substantially, given different fact situations and different treatment by various courts.” (Local 1277, Metropolitan Council No. 23, American Federation of State, County, & Municipal Employees v. City of Center Line (1982), 414 Mich. 642, 655, 327 N.W.2d 822, 827.) Generalizations as to what other administrative bodies and courts have done, therefore, are not of particular help. Another State’s legislation may differ from ours, and the facts under which a case is decided will certainly affect the conclusion that an issue is or is not one that must be bargained.

For the foregoing reasons, we hold as follows: (1) The Board’s use of a balancing test was appropriate in this case; (2) the competing concerns of management and employees should be balanced after the decision is made that an issue involves both a term and condition of employment and one involving “inherent managerial policy,” within the meaning of section 4; (3) the issue is one for mandatory bargaining if it “directly affects” employee wages, hours, or terms and conditions of employment, which conclusion may be based on the recognition that the topic is amenable to bargaining under a benefíts/burden analysis; (4) the layoff of four teachers to reduce expenditures in this case is appropriate for mandatory bargaining; and (5) the impact bargaining that followed the layoff decision does not substitute for mandatory bargaining of the decision itself. Therefore, the opinion and order of the Board is reversed.

Reversed.

McMORROW, P.J., and JOHNSON, J., concur.

      The appellate court’s opinion in Cermak has been withdrawn from the bound volume at the cited page number in the North East Reports and republished with a supplemental opinion on denial of rehearing, February 16, 1990, at 551 N.E.2d 229. The citation to the Illinois Appellate Reports remains 189 Ill. App. 3d 1057.

      Compare Cermak with the decision of the Fourth District Appellate Court in American Federation of State, County & Municipal Employees v. Illinois State Labor Relations Board (1990), 196 Ill. App. 3d 238 (declining to dismiss appeal on rationale of Cermak).

      The fourth district in Decatur cited the problems with a literal or liberal definition of “directly affecting,” which, in its opinion, would cover almost every issue. We share that court’s concern over the difficulties in formulating guidelines and are aware that our approval of the IELRB’s statement of the balancing test gives it two different tests to apply, depending on the geographical location of the school district involved.

      The District raises the spectre of year-round bargaining, arguing that the historic time for collective bargaining has been from mid- to late spring to the beginning of the new school year. Without addressing the merits of this argument, we find that it is not relevant to whether or not a particular issue is subject to mandatory bargaining under the Act.

      Neither the District nor the Board took the position that the decision to reduce forces was motivated by factors other than economic ones. While the Board’s brief on appeal suggests that the RIF decision was “primarily,” rather than “solely,” based on economics, it does not add any new facts in support of the supposition that decisions to reduce forces are so intertwined with matters of budgeting, organization, and educational services that they could never be subjects of mandatory bargaining.


source: Caselaw Access Project

author: JUSTICE LORENZ

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EMMETT JOHNSON, Defendant-Appellant.
    First District (5th Division)
    No. 1—87—3330
    Opinion filed May 25, 1990.

      Michael J. Pelletier, of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, David Butzen, and Joseph Brent, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

Defendant, Emmett Johnson, appeals from a jury verdict finding him-guilty of robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18—1(a)). He was sentenced to six years’ imprisonment. We address the following two issues: (1) whether the admission of hearsay identification testimony amounted to plain error when the trial judge struck testimony and instructed the jury to disregard it; and (2) whether the failure to include a mental state as an element of robbery in jury instructions amounted to plain error. For the following reasons, we affirm.

The complaining witness, David Riffe, testified that on February 2, 1987, at approximately 2 a.m., he was robbed on a Chicago Transit Authority subway platform. Riffe testified that while he was surrounded by approximately eight men, defendant took Riffe’s wallet from his back pocket. Defendant searched through the wallet. The other men grabbed Riffe and searched his pockets. Riffe’s watch and glove were taken, as was $7 from his front pocket. One of the men gave Riffe his wallet back. When Riffe reached down to pick up his keys on the ground, he was hit and kicked in the back. At defendant’s instruction to check Riffe’s wallet for a bus pass, another man took the wallet again. That man and defendant argued and fought over the wallet. Riffe testified that they exchanged punches and Riffe noticed a cut over defendant’s eye. Riffe later found his wallet on the ground near where defendant was previously standing.

Riffe testified that after the robbery, a bystander on the subway platform, identified as Charles Weston, told Riffe he would telephone the police. When the police arrived and detained certain suspects, Riffe identified defendant as the man who took his wallet. Defendant told police he was trying to help Riffe. Riffe testified that the incident lasted approximately 20 minutes and the lighting conditions were very good.

On cross-examination, Riffe was questioned concerning his testimony at the preliminary hearing. At that hearing, Riffe testified he was hit in the face; however, at trial he did not recall that testimony or being hit in the face. Also at the preliminary hearing, Riffe testified that William Spears took his glove but he did not recall that testimony at trial.

Officer Ziolkowski testified that he responded to the call and saw Weston on the subway platform. Without objection from defendant, Ziolkowski testified:

“Q. Now, at that time, did you talk to Charles Weston?
A. Yes, I did.
Q. And after talking to Charles Weston, did Charles Weston do anything?
A. Yeah, he pointed to three male subjects, and he said, they had just robbed somebody.”

Ziolkowski testified that the three men, one of whom was defendant, were then arrested. He also testified that defendant was not injured at the time of his arrest because defendant was not taken to the hospital as required by police department policy when a person taken into custody is injured.

John Camden, an investigator for the Cook County sheriff’s police, testified that on May 13, 1987, which was approximately two weeks prior to trial, he served a subpoena for Charles Weston on his aunt. The next day, Camden went back to the same address and was told that Weston had moved the night before, after receiving the subpoena.

At the close of the State’s case, on defendant’s motion, Officer Ziolkowski’s testimony concerning what Weston told him was stricken as hearsay because Weston was an unavailable witness. The trial judge granted the motion and orally instructed the jury to disregard the testimony.

Defendant presented one witness, a photographer, who testified that pursuant to court order, he took photographs of defendant in jail on February 4, 1987. The photographs showed that defendant had injuries to his eye and lip.

Before closing arguments, defendant moved for a mistrial based on Officer Ziolkowski’s testimony that Weston identified defendant as one of the men who robbed Riffe. Defendant also argued that the State deliberately elicited the response; however, the trial judge rejected that argument. Defendant’s motion was denied.

Without objection from defendant, the jury was instructed on the elements of robbery from Illinois Pattern Jury Instructions, Criminal, Nos. 14.03 and 14.04 (2d ed. 1981) (hereinafter IPI Criminal 2d Nos. 14.03, 14.04). Also, a written jury instruction was given generally cautioning the jurors to disregard stricken testimony.

The jury found defendant guilty of robbery, and he was sentenced to six years’ imprisonment. His post-trial motion was denied and he now appeals.

Opinion

Defendant’s first argument concerns Officer Ziolkowski’s testimony at trial that Weston pointed at three men on the subway platform and said they robbed Riffe. Ziolkowski identified defendant as one of the three men. Defendant did not object to this testimony at the time it was elicited. At the close of the State’s case, defendant moved to strike the testimony as hearsay because Weston did not testify. The trial judge granted defendant’s motion and orally instructed the jury to disregard the testimony. Further, the jury was given a written instruction to disregard any stricken testimony. Defendant raised the issue in his post-trial motion; however, the motion was denied. On appeal, defendant contends this testimony was inadmissible hearsay and violated his sixth amendment right to confront witnesses against him.

An objection to hearsay testimony must be raised when the testimony is introduced otherwise the objection is untimely. (People v. Jones (1983), 119 Ill. App. 3d 615, 456 N.E.2d 926; see also People v. Baynes (1981), 88 Ill. 2d 225, 430 N.E.2d 1070 (objection to evidence must be made at the time it is admitted or the objection will be waived).) To preserve an issue for appellate review, an objection must be made at trial and in a post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) The failure to do so can result in a waiver of that issue on appeal (Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124); however, plain errors or defects affecting substantial rights may be considered on review although they were not raised in the trial court (107 Ill. 2d R. 615(a)).

In this case, defendant did not object to the hearsay testimony at the time it was elicited. To preserve an issue for review, an objection must be made both at trial and in a post-trial motion. Even though defendant eventually raised an objection at the close of the State’s case and raised the issue in his post-trial motion, his trial objection was not timely. The objection should have been raised when the hearsay testimony was introduced. The failure to raise a timely objection at trial can result in a waiver of that issue on appeal.

Defendant argues that the issue was preserved, relying on People v. Johnson (1979), 68 Ill. App. 3d 836, 386 N.E.2d 642. In Johnson, hearsay testimony was introduced by several different witnesses. Each time the testimony was introduced, defendant raised an objection although he only raised a hearsay objection once. Defendant also raised the hearsay issue in his post-trial motion. The appellate court found that defendant properly preserved the issue for review. Johnson is distinguishable from the case at bar because here defendant did not make any objection to the hearsay testimony at the time it was introduced.

Defendant also argues that the State waived defendant’s waiver of this argument by failing to object to the timing of defendant’s eventual objection to the hearsay testimony. We believe, however, that defendant’s failure to raise a timely objection resulted in a waiver of the issue for review despite the State’s failure to raise an argument that defendant’s objection was not timely.

Despite waiver of the issue, defendant contends the admission of the alleged hearsay should be reviewed as plain error (107 Ill. 2d R. 615(a)). We agree with defendant that the testimony was inadmissible hearsay but do not believe that its admission resulted in plain error.

Hearsay is testimony of an out-of-court statement offered to show the truth of the matter asserted in the statement. (People v. Gaurige (1988), 168 Ill. App. 3d 855, 522 N.E.2d 1306.) To establish his course of conduct, a police officer may testify that he had a conversation with an individual and that he subsequently acted on the information received. (People v. Spears (1988), 169 Ill. App. 3d 470, 525 N.E.2d 877.) However, the officer cannot testify as to the substance of his conversation with the individual because that would be inadmissible hearsay. Spears, 169 Ill. App. 3d 470, 525 N.E.2d 877.

In this case, Weston did not testify at trial and his identification of defendant was introduced through the testimony of Officer Ziolkowski. He related the substance of his conversation with Weston where Weston pointed at three men and stated they had robbed Riffe. Ziolkowski then testified that defendant was one of those men. Ziolkowski’s testimony disclosed the substance of his conversation with Weston and, therefore, it was inadmissible hearsay. On appeal, the State for the first time argues that the hearsay testimony was admissible under other exceptions to the hearsay rule; however, because these arguments were not made in the trial court, we will not consider them on appeal. See People v. O’Neal (1984), 104 Ill. 2d 399, 472 N.E.2d 441 (issues not raised by the State in the trial court are generally considered waived on appeal).

The admission of hearsay identification testimony is reversible error when it was a substitute for courtroom identification or was introduced to strengthen or corroborate a weak identification. (Johnson, 68 Ill. App. 3d 836, 386 N.E.2d 642.) If, however, the hearsay testimony was only cumulative or supported by a positive identification and other corroborating circumstances, it was harmless error. Johnson, 68 Ill. App. 3d 836, 386 N.E.2d 642.

Defendant argues that the introduction of the hearsay testimony warrants reversal of his conviction even though it was only introduced once. Defendant relies on several cases where the reviewing courts reversed convictions based on the admission of inadmissible hearsay identification testimony: People v. Smith (1967), 38 Ill. 2d 13, 230 N.E.2d 188; People v. Johnson (1979), 68 Ill. App. 3d 836, 386 N.E.2d 642; People v. Bolden (1978), 59 Ill. App. 3d 441, 375 N.E.2d 898. Unlike the present situation, defendants in Smith, Johnson, and Bolden preserved their objections to the hearsay testimony. Also, in none of those cases was the testimony stricken at trial and the jury given a cautionary instruction as was the situation in the present case. Therefore, these cases do not support defendant’s argument that reversal is warranted here.

In this case, the hearsay identification testimony was stricken on defendant’s motion and, at that time, the jury was orally instructed to disregard the testimony. For its deliberations, the jury was given a similar written instruction. Generally, sustaining an objection and instructing the jury to disregard improper testimony cures any potential prejudice. (People v. Paino (1985), 137 Ill. App. 3d 645, 484 N.E.2d 1106.) It is assumed that a jury will follow its instructions and “errors corrected by the [trial] court with instructions to the jury do not require a reversal.” (People v. Sandoval (1990), 135 Ill. 2d 159, 194.) In this case, striking the testimony and instructing the jury to disregard it was sufficient to cure any prejudice that may have resulted from its admission.

Defendant argues that despite striking the testimony and cautioning the jury to disregard the testimony, he was prejudiced by the introduction of the hearsay testimony because Riffe’s identification of defendant was weak. Defendant claims that Riffe’s testimony was weak because he was impeached with his previous testimony at the preliminary hearing. Although there were a few inconsistencies between Riffe’s previous testimony and his trial testimony, the inconsistencies that defendant relies on related to whether the attackers hit Riffe in the face and who took his glove. Riffe was never impeached on his identification of defendant as the man who took the wallet out of his pocket.

Therefore, the introduction of the hearsay identification testimony was not plain error because the testimony was stricken and the jury was instructed to disregard it.

Defendant also argues that the State intentionally elicited the hearsay testimony. Defendant relies on the assistant State’s Attorney’s comment in argument on defendant’s motion for mistrial that when he asked officer Ziolkowski whether Charles Weston did anything, he expected the officer to testify that Weston pointed at certain people and defendant was arrested. Defendant argues that even the expected testimony was hearsay and, therefore, the assistant State’s Attorney deliberately introduced hearsay testimony. We agree with the trial judge’s rejection of this argument. Without more evidence that the State deliberately elicited the response, we believe that the assistant State’s Attorney mistakenly believed the expected testimony was admissible.

We note that there is no claim by defendant and no facts in the record to support that the assistant State’s Attorney misled defendant to believe that Weston would be called as a witness and, in reliance, defendant failed to object to Officer Ziolkowski’s testimony.

The second issue defendant raises on appeal is that the trial judge improperly instructed the jury on the elements of robbery from IPI Criminal 2d Nos. 14.03 and 14.04. Defendant contends that these instructions were improper because they did not instruct the jury on the mental state required for robbery. Defendant, however, did not object to the instructions at trial, did not tender alternative instructions, and did not raise the issue in his post-trial motion. The failure to tender a jury instruction at trial results in a waiver of that issue on appeal. 107 Ill. 2d R. 366(b)(2)(i); People v. Avant (1989), 178 Ill. App. 3d 139, 532 N.E.2d 1141.

Recognizing that he did not preserve the issue, defendant asks this court to review it as plain error (107 Ill. 2d R. 615(a)); however, it has been held that IPI Criminal 2d Nos. 14.03 and 14.04 correctly instruct the jury on the essential elements of robbery under Illinois law (Avant, 178 Ill. App. 3d 139, 532 N.E.2d 1141). As the State points out, it need only prove that defendant possessed the general intent to commit robbery. (People v. Anderson (1981), 93 Ill. App. 3d 646, 417 N.E.2d 663.) Accordingly, the trial judge did not err in tendering the instructions.

Lastly, we grant the State’s request to assess the sum of $50 against defendant as costs for this appeal and $25 as costs for oral argument. Ill. Rev. Stat. 1985, ch. 53, par. 8(a); People v. Agnew (1985), 105 Ill. 2d 275, 473 N.E.2d 1319; People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194.

Affirmed.

MURRAY and GORDON, JJ., concur.