Filed 7/29/08              NO. 4-07-0645

                      IN THE APPELLATE COURT

                            OF ILLINOIS

                          FOURTH DISTRICT

THE STATE OF ILLINOIS, DEPARTMENT OF    )    Direct Appeal from
CENTRAL MANAGEMENT SERVICES (ILLINOIS   )    Illinois Labor
DEPARTMENT OF CORRECTIONS),             )    Relations Board
          Petitioners-Appellants,       )    No. S-CA-05-004
          v.                            )
THE STATE OF ILLINOIS, ILLINOIS LABOR   )
RELATIONS BOARD, STATE PANEL; JACKIE    )
GALLAGHER, MICHAEL HADE, CHARLES        )
HERNANDEZ, REX PIPER, and MICHAEL COLI, )
the Members of the Said Board and Panel )
in Their Official Capacity Only; JOHN   )
BROSNAN, Executive Director of Said     )
Board in His Official Capacity Only;    )
and THE AMERICAN FEDERATION OF STATE,   )
COUNTY AND MUNICIPAL EMPLOYEES,         )
COUNCIL 31,                             )
          Respondents-Appellees.        )
_________________________________________________________________

          JUSTICE COOK delivered the opinion of the court:

          The State of Illinois, Department of Central Management

Services (hereinafter CMS) and Department of Corrections (herein-

after DOC), appeals a decision of the Illinois Labor Relations

Board, State Panel (ILRB), which found that DOC violated the

Illinois Public Labor Relations Act (5 ILCS 315/10(a)(1), (a)(4)

(West 2004)).   American Federation of State, County & Municipal

Employees, Council 31 v. Illinois Departments of Central Manage-

ment Services & Corrections, 23 Pub. Employee Rep. (Ill.) par.

113, at 475, No. S-CA-05-004 (Illinois Labor Relations Board,

State Panel, June 29, 2007) (hereinafter 23 Pub. Employee Rep.

(Ill.) par. 113).   The ILRB found that DOC had implemented

layoffs within the prison system without first bargaining in good

faith with the employee's representative, the American Federation
of State, County, and Municipal Employees, Council 31 (AFSCME).

The master contract between the parties gave the State the right

to decide, determine upon and implement layoffs, but AFSCME

argued that the State still had the duty to bargain over the

effects or impact of such a layoff and breached that duty.      We

reverse.

                          I. BACKGROUND

           Governor Rod Blagojevich, in his February 18, 2004,

budget proposal, called for an elimination of positions in DOC,

to take effect in the next fiscal year, beginning July 1, 2004.

One group of layoffs arose from the prospective closures of the

Vandalia Correctional Center and the St. Charles Youth Center.

The other group, at issue in this case, was scattered among

various DOC facilities.    The focus of those layoffs was to

standardize staffing and eliminate unnecessary positions.      The

day after the budget proposal, AFSCME's regional director asked

DOC to "identify each incumbent [by name] who would be affected

by this proposal."   About April 1, preliminary plans for the

elimination of positions and consequent reorganization became

finalized and attention turned to seniority, bumping, and layoff

provisions.   CMS completed its review and approved the layoff and

identification of persons to be subject to layoff and bumping by

mid-April 2004.   On April 27, 2004, DOC released to AFSCME a list

of facilities, job classifications, and the number of employees

subject to layoff.   On April 30, 2004, DOC distributed individual

layoff packets to all employees who would be affected by the June


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30, 2004, reorganization.

            In the latter part of May 2004, DOC sent teams of

personnel staff to the various facilities to accomplish the 24-

to 48-hour notice to individual employees required by the master

contract.   The teams were to meet individually with employees

whose positions were to be eliminated, beginning with the most

senior employee.   The team informed the employee about his or her

seniority and bumping rights, described the layoff-bumping

process, showed him or her the seniority list, and obtained the

employee's decision whether he or she wanted to waive bumping and

be considered only for transfers to vacancies.    Typically, the

facility warden was present at these meetings, together with the

president of the union local, and one or more AFSCME representa-

tives.

            DOC and AFSCME representatives meet every two or three

months as a standing committee to discuss labor-management issues

generally and often to bargain over the effects of DOC decisions.

A standing committee meeting was held on April 12 and 13.    The

first bargaining meeting was held June 2.    According to the

administrative law judge (ALJ), "it is clear that the plan was

not, as yet, complete or near implementation as to some posi-

tions."   American Federation of State, County & Municipal Employ-

ees, Council 31 v. Illinois Departments of Central Management

Services & Corrections, 23 Pub. Employee Rep. (Ill.) par. 113, at

484, No. S-CA-05-004 (Illinois Labor Relations Board, State

Panel, Administrative Law Judge's Recommended Decision and Order,


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June 29, 2007) (hereinafter ALJ recommended decision, 23 Pub.

Employee Rep. (Ill.) par. 113).   The second bargaining meeting

was held June 30, 2004, the date the reorganization was to become

effective.   At the meeting, DOC agreed that if Vandalia did not

close, the 400 vacancies reserved for Vandalia employees would be

offered to those in the reorganization layoff.    That same day,

DOC laid off 66 bargaining-unit members, eliminating their

positions, which in turn affected 100 other bargaining-unit

members through bumping, transfers, and lateral assignments.      The

third meeting was held July 22.   On August 2, 2004, AFSCME filed

the instant unfair-labor-practice charge.

           The ALJ concluded that once it was known which employ-

ees were to be laid off or affected by layoff, which was known

after the May meetings with the individual employees to be

affected, DOC should have furnished AFSCME with a list.    The ALJ

concluded that the failure to furnish a list constituted at least

a technical failure to bargain in good faith.    The ALJ recom-

mended that DOC be ordered to provide AFSCME with the list of all

employees who were laid off or affected by the June 30, 2004,

layoff.   Although DOC argued that the information requested was

known to AFSCME, and AFSCME could have easily compiled its own

list, the ALJ concluded that "to have a list compiled by the

State would have avoided all or any confusion about what the

State intended to do--no compilation by various AFSCME represen-

tatives in meetings across the State in various locations would

have that authoritative touch."   ALJ recommended decision, 23


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Pub. Employee Rep. (Ill.) par. 113, at 486.

            On the major issue in the case, however, the ALJ ruled

in favor of DOC:

                 "I find that AFSCME sought to bargain

            not effects or impact of the decision to

            layoff but instead the very decision to

            layoff itself.   That decision is strengthened

            by Maupin's [AFSCME's Regional Director for

            southern Illinois'] testimony that, had he

            the list he had requested of names, he would

            have attempted to propose changes in wages

            to stave off some of the layoffs and otherwise

            bargained about the individuals to be laid

            off or affected by layoff."   ALJ recommended

            decision, 23 Pub. Employee Rep. (Ill.) par.

            113, at 487.

Some of AFSME's objections went to performance of work by employ-

ees outside the bargaining unit or violations of the complicated

pay and classification scheme, but the ALJ concluded those issues

were already addressed by the master contract.     A grievance could

be filed on those issues but there was no obligation on the part

of either party to bargain further about that subject.

            The ALJ rejected the claim that DOC "engaged in delay

tactics."    ALJ recommended decision, 23 Pub. Employee Rep. (Ill.)

par. 113, at 487.    DOC could not be expected to engage in "impact

bargaining" until it had determined who was to be laid off,


                                 - 5 -
moved, or bumped.    "I find no indication on this record that any

'delay' occurred such that would indicate an unwillingness to

meet at reasonable times and places to reach agreement."    ALJ

recommended decision, 23 Pub. Employee Rep. (Ill.) par. 113, at

487.   The ALJ also rejected the contention that DOC failed to

send representatives to the table with sufficient bargaining

authority:

           "As the record makes clear, AFSCME presented

           proposals that did not have to do with the

           effect or impact of the decision to layoff

           but instead substantially with the decision

           to layoff, person by person.   That is what

           AFSCME tacitly admits in its phraseology,

           'identifying problems.'   Hence [DOC] was

           under no duty to bargain as to such matters

           at all, as the labor agreement already meant

           the parties had fully bargained about the

           decision to layoff and that bargain was that

           the State could make that decision at any

           time.   Moreover, to the extent that the pro-

           posals involved objections to the planned

           layoff on various contractual grounds, the

           grievance procedure was itself the agreed-

           upon procedure to raise such matters and that

           procedure did not require same-day responses."

           ALJ recommended decision, 23 Pub. Employee


                                - 6 -
           Rep. (Ill.) par. 113, at 487.

The ALJ found no evidence to support the allegation that DOC

engaged in "direct dealing" with employees or was lying when it

decided to postpone the closing of the Vandalia facility "indefi-

nitely."   ALJ recommended decision, 23 Pub. Employee Rep. (Ill.)

par. 113, at 488.

           The ALJ noted that although typically an employer must

await consent or impasse as to the effects of impasse bargaining

before instituting a decision, the parties here had negotiated an

agreement that gave the State the right to decide, determine

upon, and implement a layoff.   The master contract was to expire

on June 30, 2004.   To allow AFSCME to delay a layoff decision by

raising proposals over which DOC had no obligation to bargain

"would result in AFSCME overturning the bargain it had made and

stuck to through several labor agreements."   ALJ recommended

decision, 23 Pub. Employee Rep. (Ill.) par. 113, at 488.

           On June 29, 2007, in a brief order, the ILRB rejected

the ALJ's recommended decision and ordered DOC to (1) "rescind

the June 30, 2004[,] layoff until such time as [r]espondent State

has bargained in good faith with AFSCME, to either impasse or

agreement, over the impact thereof"; (2) reinstate the employees

laid off, bumped, or moved; and (3) make whole the employees for

the loss of any pay or benefits.   The ILRB recognized that some

of AFSCME's proposals improperly sought to bargain the decision

to layoff, but "others were aimed at effects, such as the propos-

als regarding the redistribution and transfer of work."    23 Pub.


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Employee Rep. (Ill.) par. 113, at 477.    Because "the State's

layoff plan was far from settled, [it was] difficult, if not

impossible for AFSCME to advance its proposals on effects."      23

Pub. Employee Rep. (Ill.) par. 113, at 477.    According to the

ILRB, the imminent expiration of the collective-bargaining

agreement was not a factor to be considered: "the State's rela-

tively hurried implementation of the layoff is not a sufficient

basis to deprive AFSCME of an adequate opportunity to bargain the

effects thereof."   23 Pub. Employee Rep. (Ill.) par. 113, at 477.

          Chairman Gallagher and Member Piper, dissenting, noted

that the task of determining who is laid off, after taking into

account seniority, bumping rights, and moves to vacant positions,

is inherently complicated and time-consuming.    All of AFSCME's

proposals improperly went to the decision to layoff as to partic-

ular employees.   There was no obligation to bargain regarding the

transfer of work to employees outside the unit as the master

contract already prohibited such action.    If AFSCME had really

wanted to formulate and present general issues and proposals

regarding the effects of a layoff, it could have done so, even

though the State's plan was not complete by the June 2 meeting.

23 Pub. Employee Rep. (Ill.) par. 113, at 478 (Gallagher, Chair-

man, and Piper, Member, dissenting).

                           II. ANALYSIS

          We review de novo the ILRB's decision with respect to

questions of law.   AFM Messenger Service, Inc. v. Department of

Employment Security, 198 Ill. 2d 380, 390, 763 N.E.2d 272, 279


                               - 8 -
(2001).   However, we give substantial weight and deference to the

ILRB's interpretation of the law, because an agency is able to

make informed judgments upon the issue, based upon its experience

and expertise.    Illinois Consolidated Telephone Co. v. Illinois

Commerce Comm'n, 95 Ill. 2d 142, 153, 447 N.E.2d 295, 300 (1983).

We review mixed questions of law and fact under the clearly

erroneous standard, and we will set aside the ILRB's determina-

tion of fact only if it is against the manifest weight of the

evidence.   AFM Messenger Service, 198 Ill. 2d at 392, 763 N.E.2d

at 280.   In order for a finding to be against the manifest weight

of the evidence, an opposite conclusion must be clearly apparent.

Chicago Park District v. Illinois Labor Relations Board, Local

Panel, 354 Ill. App. 3d 595, 608, 820 N.E.2d 61, 73 (2004).

Although the ILRB is free to accept or reject the ALJ's findings

and recommendations, the ILRB's order must have some support in

the record.    Sherman v. Human Rights Comm'n, 206 Ill. App. 3d

374, 386, 564 N.E.2d 203, 212 (1990).

            The decision to lay off employees for economic reasons

is generally considered a mandatory subject of bargaining about

which both parties have a duty to bargain.   In the present case,

however, AFSCME had previously waived its statutory right to

bargain over the decision to layoff employees.    American Federa-

tion of State, County & Municipal Employees v. Illinois State

Labor Relations Board, 274 Ill. App. 3d 327, 653 N.E.2d 1357

(1995).     AFSCME argues, however, that DOC still has the duty to

bargain over the effects or impact of such a layoff.   The ILRB


                                - 9 -
concluded that "[a]lthough some of AFSCME's proposals indeed

sought to bargain the decision [to lay off], others were aimed at

effects, such as the proposals regarding the redistribution and

transfer of work."    23 Pub. Employee Rep. (Ill.) par. 113, at

477.   We disagree.   AFSCME had made a proposal, or objection, to

the performance of work by employees outside the bargaining unit,

but such transfer of work was already prohibited by reason of the

master contract and neither party had any obligation to bargain

about that subject further.    Other objections went to whether

some classifications within the bargaining unit could properly

perform an eliminated position's tasks, but again, that question

was already covered by the master contract's complicated pay and

classification scheme.    The ILRB does not identify any proposal

made by AFSCME which was "aimed at effects."

           What really are proposals regarding "effects" or

"impact" of a layoff?    The ALJ gave several examples: additional

training, mental or emotional therapy, job-referral services and

moving expenses, severance pay, extension of benefits.    The ALJ

also concluded that AFSCME made no such proposals and gave no

indication that it intended to make such proposals, finding that

AFSCME sought not to bargain effects or impact of the decision to

layoff but instead the very decision to lay off itself.    ALJ

recommended decision, 23 Pub. Employee Rep. (Ill.) par. 113, at

487.   The ILRB disagreed with the ALJ, but did not give any

explanation what proposals regarding "effects" or "impact" were

considered by AFSCME or ignored by DOC.    23 Pub. Employee Rep.


                               - 10 -
(Ill.) par. 113, at 477.    If an agency rejects the fact finding

of an ALJ, the agency, at a minimum, should provide the appellate

court with a rational exposition of how other facts or circum-

stances justify such a course of action.    Dantran, Inc. v. United

States Department of Labor, 171 F.3d 58, 73 (1st Cir. 1999).       It

is not enough for the agency to merely state that it disagrees

with the ALJ; the agency should set forth the basis of its

disagreement so that it may be determined whether the agency's

finding is supported by substantial evidence in the record.

International Brotherhood of Teamsters, Chauffeurs, Warehousemen

and Helpers of America, Local No. 310 v. National Labor Relations

Board, 587 F.2d 1176, 1181 (D.C. Cir. 1978).

            The ILRB concluded that "the State's plan was in

disarray and that the parties had no opportunity to rationally

discuss the impact of the decision."    23 Pub. Employee Rep.

(Ill.) par. 113, at 477.    The ALJ found, however, that DOC did

not engage in "delay tactics" and that DOC was willing at all

times to meet at reasonable times and places to reach agreement.

ALJ recommended decision, 23 Pub. Employee Rep. (Ill.) par. 113,

at 487.    The ILRB again points to no facts inconsistent with that

position.    State layoffs for economic reasons routinely follow a

pattern.    Traditionally, the Governor announces a proposed budget

in February that will become effective the following July 1.

June 30 of each year is the last day of the State's fiscal or

budget year.    AFSCME was aware of these dates when it agreed to

the master contract, which gives the State the right to decide

upon and implement a layoff plan.    Everyone recognizes that

                               - 11 -
accomplishing a layoff under the master contract is complicated,

requiring a comparison of job classifications, determinations

whether vacancies exist, and individual determinations whether

there is a right to bump other employees and whether that right

will be exercised.   If AFSCME really wanted to bargain over the

impact and effects of the layoff, it could have done so after the

layoff occurred.   One such meeting was held, on July 22, but

AFSCME chose to file the instant unfair-labor-practice charge 11

days later, on August 2.

          The master contract addressed layoff issues in detail

in article XX and contains mechanisms for resolving them.      One

mechanism was the 30-day notice, requiring that AFSCME be given a

notice 30 days in advance of the layoff, if possible, which shall

"contain the details of layoff with respect to numbers, position

classification, and work location."      There is no dispute that

notice was given on April 27.    Another mechanism calls for

individual meetings between management and the employees to be

laid off, bumped, or transferred, to ascertain what the employee

wants to do, after giving him 24 to 48 hours earlier the senior-

ity lists and vacancy lists to review and explaining options.        It

is only after the conclusion of those meetings that DOC can

identify who is subject to lay off or affected by it.      The State

was not acting in disarray when it followed the mechanisms set

out in the master contract.   The fact that the master contract

deals with a complicated situation to be resolved within a

limited period of time does not automatically result in a failure


                                - 12 -
to bargain in good faith.

                            III. CONCLUSION

            For the foregoing reasons, we reverse the ILRB's

decision.

            Reversed.

            TURNER and STEIGMANN, JJ., concur.




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