               NOS. 4-05-0276, 4-05-0277 cons.        Filed: 4/12/06

                     IN THE APPELLATE COURT

                           OF ILLINOIS

                         FOURTH DISTRICT

THE STATE OF ILLINOIS, DEPARTMENT OF     )   Direct Review of the
CENTRAL MANAGEMENT SERVICES (DEPART-     )   Illinois Labor Rela-
MENT OF CORRECTIONS)                     )   tions Board, State
         Petitioner-Appellant,           )   Panel
          v. (No. 4-05-0276)             )   No. S-UC-S-04-038
THE STATE OF ILLINOIS, ILLINOIS LABOR    )
RELATIONS BOARD, STATE PANEL; JACKIE     )
GALLAGHER, MICHAEL HADE, CHARLES         )
HERNANDEZ, REX PIPER, and LETITIA        )
TAYLOR, the Members of Said Board and    )
Panel in Their Official Capacity         )
Only; THE AMERICAN FEDERATION OF         )
STATE, COUNTY AND MUNICIPAL              )
EMPLOYEES, COUNCIL 31; and DAVID R.      )
SUAREZ,                                  )
          Respondents-Appellees.         )
-------------------------------------    )
-                                        )   No. S-UC-S-05-002
                                         )
 THE STATE OF ILLINOIS, DEPARTMENT OF    )
 CENTRAL MANAGEMENT SERVICES (DEPART-    )
 MENT OF CORRECTIONS),                   )
           Petitioner-Appellant,         )
           v. (No. 4-05-0277)            )
 THE STATE OF ILLINOIS, ILLINOIS LABOR   )
 RELATIONS BOARD, STATE PANEL; JACKIE    )
 GALLAGHER, MICHAEL HADE, CHARLES        )
 HERNANDEZ, REX PIPER, and LETITIA       )
 TAYLOR, the Members of Said Board and   )
 Panel in Their Official Capacity        )
 Only; THE AMERICAN FEDERATION OF        )
 STATE, COUNTY AND MUNICIPAL             )
 EMPLOYEES, COUNCIL 31; JENNIFER         )
 RONZONE; KAREN DOWNEY; and SHARI
 MOOS-MCBRIDE,
           Respondents-Appellees.
_________________________________________________________________

          JUSTICE STEIGMANN delivered the opinion of the court:

          In February 2005, the Illinois Labor Relations Board,

State Panel (Board), dismissed the jointly stipulated bargaining-

unit-clarification petitions of the Illinois Department of
Central Management Services (CMS) and the American Federation of

State, County, and Municipal Employees (AFSCME), which sought to

exclude (1) David Suarez from the office of collective bargaining

(OCB) RC-063 bargaining unit (case No. 4-05-0276) and (2)

Jennifer Ronzone, Karen Downey, and Sharin Moos-McBride from the

OCB RC-028 bargaining unit (case No. 4-05-0277).

          CMS appeals, arguing that the Board erred by dismissing

the clarification petitions in both cases.    We have consolidated

these cases for purposes of this appeal.   We reverse and remand.
                           I. BACKGROUND

                      A. Case No. 4-05-0276

          In March 2004, CMS and AFSCME filed a stipulated

bargaining-unit-clarification petition with the Board, seeking to

exclude David Suarez, an information systems analyst II, from the

OCB RC-063 bargaining unit on the ground that Suarez was a

"confidential employee."   In April 2004, Suarez filed an objec-
tion to the clarification petition with the Board, arguing that

(1) his position had been represented by the OCB RC-063 bargain-

ing unit since its January 2001 creation; (2) his previous

position, information systems analyst I, was covered by the same

bargaining unit; and (3) the petition was motivated by "political

retribution."

          In October 2004, the Board's acting director granted

CMS and AFSCME's stipulated petition, upon finding that Suarez

was a "confidential employee" under section 3(c) of the Illinois

Public Labor Relations Act (Act) (5 ILCS 315/3(c) (West 2004)).


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That same month, Suarez appealed the decision of the Board's

acting director.

           In February 2005, the Board reversed the acting direc-

tor's order and dismissed the stipulated petition.        The Board did

not reach the issue of whether Suarez was a confidential em-

ployee.   Instead, the Board dismissed the petition, upon finding

that CMS and AFSCME's petitions did not fall under any of the

four situations in which a bargaining-unit-clarification petition

is permitted.   The Board also stated, in part, as follows:
           "The State and AFSCME's assertion that they

           mistakenly included Suarez in RC-63 is par-

           ticularly untenable in view of the fact that

           he has been included in the unit for eight

           years, the last four in his current title,

           and has been covered by numerous AFSCME/State

           collective[-]bargaining agreements during
           that time."

                         B. Case No. 4-05-0277

           In July 2004, CMS and AFSCME filed a stipulated

bargaining-unit-clarification petition with the Board, seeking

the removal of Jennifer Ronzone, Sharin Moss-McBride, and Karen

Downey from the OCB RC-028 bargaining unit on the ground that

they were confidential employees.        All three of the employees

worked as drug screeners for the Department of Corrections.

Their positions had only been included in the bargaining unit

since April 2004.   Later in July 2004, Moss-McBride and Downey


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objected to the petition.

             In October 2004, the Board's acting executive director

granted the stipulated petition, upon finding that Ronzone, Moss-

McBride, and Downey were confidential employees.                 In so finding,

the acting executive director stated as follows:

             "The rights of parties to a stable labor[-]

             relations environment outweighs the rights of

             employees in this case.         The confidential

             exclusion sought in this matter is designed
             to protect the integrity of the employer's

             labor[-]relation policies.         It is never ap-

             propriate to include statutorily excluded

             positions in a bargaining unit.           A unit clar-

             ification petition is appropriate any time

             that a party seeks to remove a statutory

             exclusion."
             In February 2005, the Board reversed the decision of

its acting executive director and dismissed the stipulated

petition for clarification, upon concluding that "there clearly

was no basis for the filing of the instant unit[-]clarification

petition."    According to the Board, the bargaining-unit-clarifi-

cation procedure can only properly be utilized in "four extremely

limited circumstances," none of which existed in this case.

             These appeals followed.

                                II. ANALYSIS

                    A. Bargaining-Unit-Clarification Petitions


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              A bargaining-unit-clarification petition is a procedure created by the

Board's regulations and case law. American Federation of State, County & Municipal

Employees v. Illinois State Labor Relations Board, 333 Ill. App. 3d 177, 181, 775 N.E.2d

1029, 1032 (2002). The purpose of such a petition is to provide an official determination

of a bargaining unit's composition. Sedol Teachers Union v. Illinois Educational Labor

Relations Board, 276 Ill. App. 3d 872, 878, 658 N.E.2d 1364, 1368 (1995). A party may

appropriately file a unit-clarification petition only under limited circumstances. American

Federation of State, County & Municipal Employees, 333 Ill. App. 3d at 181-82, 775

N.E.2d at 1032.

              Sections 1210.170(a)(1), (a)(2), and (a)(3) of the Illinois Administrative

Code (Code) provide as follows:

                     "(a) An exclusive representative or an

              employer may file a unit[-]clarification

              petition to clarify or amend an existing

              bargaining unit when:

                     (1) substantial changes occur in the

              duties and functions of an existing title,

              raising an issue as to the title's unit

              placement;

                     (2) an existing job title that is logi-

              cally encompassed within the existing unit

              was inadvertently excluded by the parties at

              the time the unit was established; and

                     (3) a significant change takes place in


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             statutory or case law that affects the bar-

             gaining rights of employees."           80 Ill. Adm.

             Code ''1210.170(a)(1), (a)(2), (a)(3), as

             amended by 27 Ill. Reg. 7393 (amended May 1,

             2003).

In addition, under Illinois case law, a party may file a unit-

clarification petition when a newly created job classification

has job functions similar to functions already covered in the

bargaining unit.        American Federation of State, County & Municipal Employees,

333 Ill. App. 3d at 182, 775 N.E.2d at 1032.

         B. CMS and AFSCME's Joint Request for Clarification

             CMS first argues that the Board should have affirmed

the executive director's decision because CMS and AFSCME had

jointly requested the removal of the "confidential employees"

from the respective bargaining units.             We disagree.

             According to the Code, after the posting period for a

stipulated unit-clarification petition ends, the Board can

"approve or disapprove the unit clarification depending upon

whether the amendment or clarification is consistent with the

Act.    If objections have been filed, the Board shall proceed in

accordance with [s]ection 1210.170(e)."              80 Ill. Adm. Code '

1210.175(c), as amended by 27 Ill. Reg. 7393 (amended May 1,

2003).    Because the affected employees in this case filed objec-

tions to the unit-clarification petitions, the Board could not

have merely deferred to the parties' stipulated petitions.



                                         - 6 -
  C. The Board's Decisions To Reverse the Executive Director's
          Dismissal of the Unit-Clarification Petitions

          CMS argues that the Board erred by reversing the

decisions of the acting executive director and dismissing their

unit-clarification petitions.   The Board responds that this court

should affirm its decisions because (1) the unit-clarification

petitions did not arise out of any of the four circumstances that

justify the filing of such petitions; and (2) once CMS has

intentionally included certain employees within a bargaining
unit, it should be estopped from later seeking to remove those

employees from the unit.

  1. Whether a Unit-Clarification Petition May Properly Be Used
      To Sever Confidential Employees From Bargaining Units

          Initially, we acknowledge that CMS's unit-clarification

petitions do not fall within any of the four "limited circum-

stances" under which a party may file such a petition.    However,

in our view, under the unique circumstances that exist in these

cases--that is, where allegedly confidential employees were

improperly included in a bargaining unit--the filing of a unit-

clarification petition is appropriate.

          Section 3(c) of the Act defines a confidential employee

as follows:

               "[A]n employee who, in the regular

          course of his or her duties, assists and acts

          in a confidential capacity to persons who

          formulate, determine, and effectuate manage-

          ment policies with regard to labor relations

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           or who, in the regular course of his or her

           duties, has authorized access to information

           relating to the effectuation or review of the

           employer's collective bargaining policies."

           5 ILCS 315/3(c) (West 2004).

Section 3(n) of the Act excludes confidential employees from the

definition of "employees" to which the Act applies.      5 ILCS

315/3(n) (West 2004).    In Chief Judge of the Circuit Court of

Cook County v. American Federation of State, County & Municipal
Employees, Council 31, AFL-CIO, 153 Ill. 2d 508, 523, 607 N.E.2d

182, 189 (1992), our supreme court explained this exclusion as

follows:

                "The purpose of excluding confidential

           employees is to keep employees from 'having

           their loyalties divided' between their em-

           ployer and the bargaining unit which repre-

           sents them.   The employer expects confidenti-

           ality in labor[-]relations matters but the

           union may seek access to the confidential

           materials to gain a bargaining advantage.

           City of Wood Dale, 2 Pub. Employee Rep.
           (Ill.) par. 2043, at 299, No. S-RC-261 (ISLRB

           September 5, 1986)."

Given the importance of confidentiality in labor-relations

matters, to protect both the employers and the confidential

employees (who could find themselves torn between loyalty to


                                  - 8 -
their employer and their bargaining unit), we hold that a unit-

clarification petition may appropriately be used to sever confi-

dential employees from a bargaining unit.

            Were we to accept the Board's argument that unit-

clarification petitions may only be filed under the four limited

circumstances previously stated, an employer would be barred from

removing a confidential employee from a bargaining unit regard-

less of what information that employee has access to until a new

bargaining-unit contract is negotiated.
            In so concluding, we recognize that the Board is not

bound by the rulings of the Illinois Educational Labor Relations

Board (IELRB) (see 5 ILCS 315/15.1 (West 2004)).                    However, we

note that the IELRB has recognized that the unit-clarification

process is appropriate "to remove statutorily excluded employees

from a bargaining unit."          Sedol Teachers Union, 276 Ill. App. 3d

at 879, 658 N.E.2d at 1368.           We agree with the IELRB.             The Board

must allow the State to file unit-clarification petitions to

remove "confidential employees" from bargaining units.

                 2. Whether Equitable Estoppel Applies
            The Board also argues that because CMS and AFSCME

consciously chose to include the employees in their respective

bargaining units, they cannot now seek to sever those employees

from the units.      In essence, the Board contends that the unit-

clarification petitions are barred by equitable estoppel.                        We

disagree.

            In Schivarelli v. Chicago Transit Authority, 355 Ill. App. 3d 93, 103, 823


                                        - 9 -
N.E.2d 158, 167 (2005), the First District discussed the equitable

estoppel doctrine as follows:

          "To invoke equitable estoppel against a municipality there

          must be an affirmative act on the part of the municipality and

          the inducement of substantial reliance by the affirmative act.

          [Citation.] The affirmative act that prompts a party's reliance

          must be an act of the public body itself such as a legislative

          enactment rather than the unauthorized acts of a ministerial

          officer or a ministerial misinterpretation."

"If a municipality were held bound through equitable estoppel by

an unauthorized act of a governmental employee, then the munici-

pality would remain helpless to remedy errors and *** be forced

to permit violations 'to remain in perpetuity.'"                  Hamwi v.

Zollar, 299 Ill. App. 3d 1088, 1095, 702 N.E.2d 593, 598 (1998),

quoting Chicago v. Unit One Corp., 218 Ill. App. 3d 242, 246, 578

N.E.2d 194, 197 (1991).

          In this case, for estoppel to apply, CMS's conscious

act of permitting the subject employees to be members of the

bargaining units would need to have constituted an "act of the

public body such as a legislative enactment."                 Under section 3(n)

of the Act, confidential employees of the government are not

"public employees."       5 ILCS 315/3(n) (West 2004).              Accordingly,

assuming the employees were confidential employees, CMS had no

authority to place them in their respective bargaining units.                   An

unauthorized act of a ministerial officer cannot be the basis for

                                       - 10 -
equitable estoppel.

          In addition, this court has stated that "[o]ne who

invokes the doctrine of estoppel against the government must

establish affirmative misconduct going beyond mere negligence,

that the government's wrongful act will cause a serious injus-

tice, and the public's interest will not suffer undue damage."

Department of Public Health v. Jackson, 321 Ill. App. 3d 228,

236, 747 N.E.2d 474, 481 (2001).

          The Board has failed to establish (1) affirmative

misconduct beyond mere negligence, (2) that the government's

wrongful act will cause a serious injustice, and (3) the public's

interest will not suffer undue damage.   Indeed, in this case, if

the employees in question are found to be confidential employees,

the public's interest will suffer damage if the employees (1) are
allowed to stay in their respective bargaining units, (2) have

access to their employer's confidential material, and (3) feel

pressured to share that confidential material with their

bargaining-unit representatives.    We emphasize that by these

remarks, we mean to indicate no position as to any findings the

Board, when it conducts hearings as we require on remand, may

make regarding whether the employees in question are confidential

employees.

       D. Timeliness of the Petition in Case No. 4-05-0276

          The Board also argues that the unit-clarification

petition was properly dismissed in case No. 4-05-0276 because it

was untimely.   We disagree.


                               - 11 -
          As our supreme court recognized in Chief Judge of the

Circuit Court of Cook County, 153 Ill. 2d at 523, 607 N.E.2d at

189, the State has an interest in keeping confidential employees

out of bargaining units.   If, at any point, the State determines

that a confidential employee is a member of a bargaining unit,

the State must be allowed to file a unit-clarification petition

to remove that confidential employee.   The fact that a confiden-

tial employee was improperly placed in a bargaining unit and the

issue of his placement was not raised for several years should

not dictate that he forever be allowed to stay in the bargaining

unit.   We thus conclude that the State can file a unit-clarifica-

tion petition to remove a confidential employee from a bargaining

unit at any time.

           In so concluding, we note that Water Pipe Extension,
Bureau of Engineering v. Illinois Local Labor Relations Board,

252 Ill. App. 3d 932, 625 N.E.2d 733 (1993), does not require a

different result.   In Water Pipe, 252 Ill. App. 3d at 941, 625

N.E.2d at 739, the appellate court affirmed the Board's decision

that a unit-clarification petition was untimely filed.    However,

Water Pipe did not involve confidential employees and the unique
circumstances that we previously discussed.

           Accordingly, we reverse the Board's decisions.   Because

the Board failed to determine whether the employees in question

were confidential employees under section 3(c) of the Act, we

remand this case to the Board for such a determination.     If the

Board determines that any of the employees are confidential


                              - 12 -
employees, CMS's unit-clarification petitions should be granted

with regard to each confidential employee.

                         III. CONCLUSION

          For the reasons stated, we reverse and remand for the

Board to determine if any of the employees named in the unit-

clarification petitions are "confidential employees" under

section 3(c) of the Act (5 ILCS 315/3(c) (West 2004)).

          Reversed and remanded.

          APPLETON and KNECHT, JJ., concur.




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