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                                 Appellate Court                             Date: 2019.02.04
                                                                             15:28:37 -06'00'



    Department of Central Management Services v. Illinois Labor Relations Board,
                      State Panel, 2018 IL App (4th) 160827



Appellate Court      THE DEPARTMENT OF CENTRAL MANAGEMENT SERVICES,
Caption              Petitioner, v. THE ILLINOIS LABOR RELATIONS BOARD,
                     STATE PANEL; and THE AMERICAN FEDERATION OF STATE,
                     COUNTY AND MUNICIPAL EMPOYEES, COUNCIL 31,
                     Respondents.–THE AMERICAN FEDERATION OF STATE,
                     COUNTY AND MUNICIPAL EMPOYEES, COUNCIL 31,
                     Petitioner, v. THE ILLINOIS LABOR RELATIONS BOARD,
                     STATE PANEL; and THE DEPARTMENT OF CENTRAL
                     MANAGEMENT SERVICES Respondents.



District & No.       Fourth District
                     Docket Nos. 4-16-0827, 4-17-0127 cons.



Filed                October 23, 2018



Decision Under       Petition for review of order of Illinois Labor Relations Board, State
Review               Panel, Nos. S-CA-16-087, S-CB-16-017.



Judgment             Board decision vacated and remanded for further proceedings.


Counsel on           Thomas S. Bradley, Mark W. Bennett, and David A. Moore, Special
Appeal               Assistant Attorneys General, of Laner Muchin, Ltd., of Chicago, for
                     petitioner/respondent Department of Central Management Services.
                               Melissa J. Auerbach and Stephen A. Yokich, of Dowd, Bloch,
                               Bennett, Cervone, Auerbach & Yokich, of Chicago, for
                               petitioner/respondent American Federation of State, County &
                               Municipal Employees, Council 31.

                               Joel A. D’Alba, of Asher, Gittler & D’Alba, Ltd., of Chicago, for
                               amicus curiae Illinois AFL-CIO.

                               Tamara L. Cummings and John R. Roche Jr., of Western Springs, for
                               amicus curiae Illinois Fraternal Order of Police Labor Council.

                               Gilbert A. Cornfield and Elisa Redish, of Cornfield & Feldman LLP,
                               and Nick Christen, both of Chicago, for amici curiae Illinois
                               Federation of Teachers et al.



     Panel                     JUSTICE DeARMOND delivered the judgment of the court, with
                               opinion.
                               Justices Holder White and Steigmann concurred in the judgment and
                               opinion.


                                                 OPINION

¶1         In December 2015, the State of Illinois Department of Central Management Services
       (CMS or the State) and the American Federation of State, County and Municipal Employees,
       Council 31 (AFSCME or Union) began negotiations for a new 2015-19 collective bargaining
       agreement (CBA). On January 8, 2016, CMS declared an overall impasse and submitted its
       last, best, and final offer. Both parties filed complaints with the state panel of the Illinois Labor
       Relations Board (ILRB), alleging unfair labor practices under the Illinois Public Labor
       Relations Act (5 ILCS 315/1 et seq. (West 2014)). The charges were investigated in
       accordance with section 11 of the Illinois Public Labor Relations Act, and the executive
       director of the ILRB issued complaints for the hearing on the charges. 5 ILCS 315/11 (West
       2014). After consolidation, an administrative law judge (ALJ) conducted an exhaustive 25-day
       hearing on the matter. The ALJ issued a 250-page “Recommended Decision and Order,” which
       recommended partial implementation by CMS of their last, best, and final offer on certain
       issues and sending the parties back to the bargaining table on other issues. The ILRB adopted
       the ALJ’s ruling, in part, dismissed certain portions of the amended complaint against CMS,
       and rejected what it characterized as “the ALJ’s package-by-package analysis of the question
       of impasse.” They reversed the ALJ’s finding that the parties were not at overall impasse;
       adopted, for the first time, the National Labor Relations Board’s (NLRB) “single critical issue”
       impasse test; and permitted CMS to implement its last, best, and final offer. The ILRB further



                                                     -2-
     ordered CMS to provide information previously requested by the Union and required them to
     continue bargaining on unresolved issues.
¶2       On appeal, CMS argues the ILRB erred in finding CMS committed unfair labor practices
     by (1) disregarding or failing to comply with information requests both before and after
     impasse, (2) finding certain CMS proposals resulted in the waiver of certain statutory rights,
     and (3) holding AFSCME did not repudiate the “Tolling Agreement” in violation of their duty
     to bargain in good faith. Conversely, AFSCME contends the ILRB erred by (1) allowing CMS
     to substitute affidavits for live direct-examination testimony at the hearing; (2) applying, for
     the first time, the “single critical issue” impasse test rather than the long-used, five-factor Taft
     test (Taft Broadcasting Co., 163 N.L.R.B. 475 (1967)) to conclude impasse had, in fact, been
     reached; (3) failing to find CMS engaged in unlawful direct dealing with bargaining unit
     employees; and (4) failing to find CMS bargained in bad faith.

¶3                                          I. BACKGROUND
¶4       The parties in this case have successfully negotiated CBAs for over 40 years. CMS is the
     largest public sector employer and AFSCME is the largest combined bargaining unit in the
     state. Over the course of their history of collective bargaining, AFSCME has negotiated more
     than two dozen CBAs with the administrations of six different governors. During that time,
     they have negotiated successor CBAs before the expiration of the existing CBA on all but three
     previous occasions. This was the fourth.
¶5       Beginning with the traditional joint labor/management meeting in December 2014, the
     parties engaged in collective bargaining from February 2015 until January 8, 2016, having
     agreed to await the inauguration of a new governor before starting. Over a period of 67 days,
     they conducted 24 bargaining sessions, with a federal mediator present most of the time after
     June 2015. The ALJ noted these negotiations were different from the previous practice of the
     parties for a number of reasons, not the least of which was the financial circumstances of the
     state.
¶6       At the December meeting, the State’s prelude to bargaining included reminding the Union
     there was an approximate $6.4 billion backlog in unpaid bills, a budget deficit of
     approximately $1.6 billion, and a projected fiscal year 2016 budget deficit of $5 billion. In
     addition, there was an amount of $111 billion in unfunded pensions. Pension payments and
     financing accounted for approximately 25% of the State’s general revenue fund expenditures
     at the start of negotiations. The Governor’s Office of Management and Budget (GOMB) and
     the Department of Revenue in their three-year projection calculated a budget deficit for fiscal
     year 2016 of approximately $6.2 billion, $5.9 billion for fiscal year 2017, and $5.6 billion for
     fiscal year 2018. The ALJ noted there was, as of yet, no legislative solution to the $1.6 billion
     deficit in the budget, and the GOMB had projected the bill backlog to increase to $10.6 billion
     by the end of fiscal year 2016. As a result, the State had experienced rating downgrades by
     Moody’s Investor Service and Fitch Ratings, two bond credit rating agencies, which resulted in
     greater costs for the State in its attempt to raise revenue through bond sales.
¶7       At that same meeting, the State’s spokesperson said health care and pensions were two of
     the most fundamental financial issues affecting the budget. The Union’s response was to
     encourage the State to reinstate the temporary tax increase passed by the Illinois General
     Assembly in 2011, which was due to end automatically on January 1, 2015; tax the wealthy;
     and support a tax structure placing greater responsibility for taxes on those who had higher

                                                  -3-
       incomes. Unlike previous negotiations, the Union did not come forward with any proposals at
       that time. They said this was due to the fact that a new administration would be taking over and
       there was no reason to provide proposals to the outgoing governor’s staff.
¶8          As a result of the upcoming inauguration in the middle of January 2015, the State cancelled
       any meetings for negotiations until February, thereby starting later than usual. In addition,
       unlike previous negotiations, it took the parties four bargaining days and seven proposals just
       to iron out ground rules. The rules proposed by CMS were identical to those used in previous
       negotiations; however, the Union wanted to add three more provisions: (1) the parties would
       bargain in good faith toward a successor CBA, (2) CMS would recognize AFSCME as the
       exclusive bargaining representative, and (3) all proposed modifications to the CBA would be
       made exclusively to the Union and not made to any other party. The State objected, contending
       these provisions were unnecessary and eventually saying they were willing to proceed without
       ground rules, if need be. On February 26, 2015, the parties agreed to the ground rules,
       incorporating the Union’s first proposal only.
¶9          The ALJ’s written recommendation identified other aspects of the negotiations that were
       atypical to the bargaining history of the parties: (1) the fact that the first substantive proposals
       were not presented until February 27, 2015; (2) the proposals were by the State and not the
       Union; (3) the Union did not present initial noneconomic proposals until March 18, 2015; and
       (4) the State was the first to submit economic proposals, doing so on May 13, 2015, while the
       Union waited to submit their initial comprehensive economic package on June 17, 2015.
¶ 10        As a result of these delays, the parties were within 13 days of the June 30, 2015,
       termination date for the previous CBA before trading economic packages. The parties
       negotiated the first of three “Tolling Agreements” on June 25, 2015, to address the inordinate
       delay in substantive negotiations. Per the first “Tolling Agreement,” the parties agreed to
       negotiate in good faith to reach a successor CBA and abide by all legal obligations while doing
       so. Additional conditions of the two subsequent “Tolling Agreements,” negotiated in July 29
       and September 9, 2015, established the procedure of allowing for either a mutual
       acknowledgement of an impasse or agreeing to submit the matter to the ILRB. The last
       “Tolling Agreement” included language by the parties acknowledging their willingness to
       “continue meeting and negotiating in good faith” for a successor agreement and agreeing to
       allow the “Tolling Agreement” to continue until “impasse is reached” by mutual agreement of
       the parties or resolution of the impasse issue by the ILRB.
¶ 11        The first substantive proposal presented by the Union on February 27, 2015, after signing
       the ground rules, related to subcontracting/privatization. Unlike their other proposals, this one
       did not identify the contract provisions to which it related, was intended to replace, or amend
       but was, in the words of CMS’s chief negotiator, more of a “policy statement.” It contained
       broad language seeking to prevent the State from turning work over to companies seeking to
       make “excessive profits at the expense of service quality, public accountability, or fair
       treatment of employees.” The Union’s proposal also sought to prohibit privatization of state
       work as a way to “deny employees the right to union representation, to drive down employee
       wages and benefits, or to otherwise diminish the rights of employees.” According to the Union
       representative, this was their idea of a way to start negotiations off on a better foot and build a
       relationship.
¶ 12        The State’s response was to submit their first series of noneconomic issues, which sought
       to make a number of changes to existing contract language by either eliminating or restricting a

                                                    -4-
       variety of Union or employee contractual rights. The State contended it was seeking to add
       “efficiency and flexibility” to State services as an aid to reduce the costs of operation. It was
       these two proposals, along with the Union’s belief the new governor was intent on “busting”
       the Union, that set the tone for negotiations over the next 11 months.
¶ 13       Through the bargaining sessions, the parties reached an agreement on various provisions of
       the 2015-19 CBA, such as article XXXII, “Wages,” and a grievance procedure package.
       Despite movement in some areas, the parties failed to reach an agreement in major areas such
       as subcontracting, health care, and wages prior to January 8, 2016.
¶ 14       During the January 8, 2016, meeting, CMS declared an impasse and presented its last, best,
       and final offer to AFSCME. AFSCME denied the parties had reached an impasse. CMS stated
       the issue should be submitted to the ILRB, while AFSCME maintained it was unnecessary
       since an impasse had not yet been reached. In February 2016, AFSCME and CMS filed
       complaints, with CMS alleging AFSCME had repudiated the tolling agreement and AFSCME
       alleging CMS had engaged in unfair labor practices during the bargaining.
¶ 15       The hearing lasted for 25 days and the ALJ rendered her opinion finding, among other
       things, the parties bargained in good faith, had reached an impasse on some but not all
       bargaining proposals, and CMS committed some unfair labor practices by not fulfilling
       information requests by AFSCME. The parties reached agreements on (1) ground rules;
       (2) article XXXIV, “Personnel Files”; (3) article XXVII, “Evaluations”; (4) article XXXI,
       “Miscellaneous”; (5) article XXXII, “Wages”; (6) “Classifications”; (7) “Integrity of the
       Bargaining Unit”; (8) “Miscellaneous Pay Provisions” package; (9) “Hours of Work and
       Overtime” package; (10) another miscellaneous package; and (11) “Grievance Procedure and
       Union Business” package. The unresolved packages were (1) “Wages”; (2) “Health
       Insurance”; (3) “Subcontracting”; (4) “Layoffs”; (5) “Outstanding Economics” package;
       (6) “Vacation, Holiday Scheduling, and Leaves of Absences”; (7) “DOC/DJJ Roll call”;
       (8) “Health     and      Safety      Outstanding       Issues”;     (9) “Mandatory       Overtime”;
       (10) “Non-Discrimination, Upward Mobility, and Filling of Vacancies”; (11) “Management
       Rights/Fair Share”; and (12) “Semiautomatic/ Classification in-series Advancement.” The
       ALJ believed there was an impasse on the issues of (1) “Wages”; (2) “Health Insurance”;
       (3) “Subcontracting”; (4) “Vacation, Holiday Scheduling, and Leaves of Absences”;
       (5) “DOC/DJJ Roll call”; (6) “Mandatory Overtime”; (7) “Non-discrimination, Upward
       Mobility, and Filling of Vacancies”; and (8) “Management Rights/Fair Share.” The ALJ
       determined there was no impasse on (1) “Layoffs,” (2) “Outstanding Economics” package,
       (3) “Health and Safety Outstanding Issues,” and (4) “Semi-automatic/ Classification in-series
       Advancement.”
¶ 16       The ALJ entered findings regarding what she considered to be the impediments to the
       resolution of some of the packages and the finding of an impasse, as well as proper
       implementation of the State’s last, best, and final offer. On the issue of wages, there were
       certain legal impediments to impasse, according to the ALJ, since the State could not
       unilaterally impose its last, best, and final offer without causing a waiver of a statutory right to
       a pension calculation based on whole compensation and the State did not fulfill its obligation to
       provide certain outstanding information requests made by AFSCME. In regard to health
       insurance, the legal impediments to unilateral implementation were the same as those listed
       above; i.e., imposition of the State’s last, best, and final offer would result in a de facto waiver
       of a statutory right to subsidized health insurance and CMS’s failure to provide requested

                                                    -5-
       information to AFSCME. On layoffs, the ALJ said the parties were moving slowly but were
       making progress toward resolution. There was limited discussion on the “Outstanding
       Economics” package, and the ALJ said, as a result, she could not find the parties were at
       impasse. Additionally, the ALJ found a legal impediment to unilateral implementation was
       caused by the fact that such implementation would cause the waiver of the Union’s statutory
       right to retiree health insurance. A legal impediment to bargaining on “Vacation, Holiday
       Scheduling,” and “Leaves of Absences” was based on another outstanding information
       request. The ALJ found the parties were not at an impasse on “Health and Safety Outstanding
       Issues” because there was still positive movement in their positions. The legal impediment to
       the “Non-Discrimination, Upward Mobility, and Filling of Vacancies” package was an
       unfulfilled information request. The ALJ found, despite slow movement, the parties were at
       least still moving toward agreement on the “Semi-Automatic/Classification In-Series
       Advancement” package.
¶ 17       The ILRB affirmed some of the ALJ’s findings, stating CMS had committed unfair labor
       practices by withholding information requested by AFSCME. However, the unfair labor
       practices did not preclude a finding of impasse on the single critical issue of subcontracting,
       which led to a breakdown of bargaining as a whole. The ILRB ruled CMS was entitled to
       implement its last, best, and final offer.
¶ 18       CMS appealed the ILRB’s order to the Fourth District and AFSCME appealed to the First
       District. On motion by CMS, the cases were consolidated and now appear before this court.
       This appeal followed.

¶ 19                                        II. ANALYSIS
¶ 20                                           A. Impasse
¶ 21       AFSCME argues the ILRB erred in implementing for the first time the “single critical
       issue” impasse test without giving an explanation for its departure from the Taft factors test.
       We agree.

¶ 22                                    1. Standard of Review
¶ 23      This appeal involves an agency’s interpretation of its enabling statute and
       regulations—questions of law that we review de novo. Hartney Fuel Oil Co. v. Hamer, 2013
       IL 115130, ¶ 16, 998 N.E.2d 1227. Though our review is de novo, “we afford substantial
       weight and deference to the interpretation given to the law by the administrative agency
       charged with its enforcement.” Acme Markets, Inc. v. Callanan, 236 Ill. 2d 29, 39, 923 N.E.2d
       718, 725 (2009).

¶ 24                           2. ILRB and NLRB’s Precedent on Impasse
¶ 25       As the ALJ noted in her order, the question of impasse involves two separate issues:
       (1) whether further negotiations would be futile, even if ordered by the ILRB, and (2) whether
       there are any other matters that preclude finding the parties are at a legitimate impasse. In order
       to determine the existence of a true bargaining impasse, for decades, the ILRB had relied upon
       the Taft factors. See American Federation of State, County & Municipal Employees, 9 PERI
       ¶ 2040 (ISLRB 1993) (County of Jackson); City of Peoria Municipal Employees Ass’n, 11
       PERI ¶ 2007 (ISLRB 1994); American Federation of State, County & Municipal Employees,


                                                    -6-
       33 PERI ¶ 15 (ILRB State Panel 2016) (City of East Moline). In Taft, the NLRB recognized the
       determination of whether a bargaining impasse had been reached was a matter of judgment.
       Taft, 163 N.L.R.B. at 478. It listed the five factors considered relevant in reaching that
       decision: (1) the bargaining history of the parties, (2) the good faith of the parties in
       negotiations, (3) the length of the negotiations, (4) the importance of the issue or issues as to
       which there is disagreement, and (5) the contemporaneous understanding of the parties as to
       the state of negotiations. Taft, 163 N.L.R.B. at 478. The ILRB adopted these same five factors
       in American Federation of State County & Municipal Employees, 5 PERI ¶ 2001 (ISLRB
       1988) (Departments of Central Management Services & Corrections).
¶ 26        Since deciding Taft in 1967, the NLRB has used the five Taft factors in the majority of
       cases where bargaining impasse was claimed. The NLRB has relied on the three- factor, single
       critical issue impasse test discussed in CalMat Co., 331 N.L.R.B. 1084 (2000), less frequently.
       There, the NLRB held a party seeking to justify a claim that impasse on a single critical issue
       permitted implementation of its last, best, and final offer was required to show:
                “first, the actual existence of a good-faith bargaining impasse; second, that the issue as
                to which the parties are at impasse is a critical issue; third, that the impasse on this
                critical issue led to a breakdown in the overall negotiations—in short, that there can be
                no progress on any aspect of the negotiations until the impasse relating to the critical
                issue is resolved.” CalMat Co., 331 N.L.R.B. at 1097.
¶ 27        Prior to CalMat Co., the NLRB held that an impasse occurs “after good[-]faith negotiations
       have exhausted the prospects of concluding an agreement.” Sierra Publishing Co., 291
       N.L.R.B. 552, 554 (1988) (quoting Taft, 163 N.L.R.B. at 478). In Sierra Publishing Co., the
       NLRB said, “The Board has long distinguished between an impasse on a single issue that
       would not ordinarily suspend the duty to bargain on other issues and the situation in which
       impasse on a single or critical issue creates a complete breakdown in the entire negotiations.”
       Sierra Publishing Co., 291 N.L.R.B. at 554. Most notably, however, the NLRB went on to say,
       “Only in this latter context when there has been a complete breakdown in the entire
       negotiations is the employer free to implement its last best and final offer.” (Emphasis added.)
       Sierra Publishing Co., 291 N.L.R.B. at 554. As examples of such circumstances, the NLRB
       cited Taylor-Winfield Corp., 225 N.L.R.B. 457 (1976), and Holmes Typography, Inc., 218
       N.L.R.B. 518 (1975). In Taylor-Winfield, evidence indicated the parties had resolved almost
       all issues except items relating to economics and, most importantly, a pension proposal. After
       lengthy negotiations, neither party was willing to move on their existing proposal, and the
       chief negotiators for both sides testified they were of the opinion the parties had reached
       impasse and were far apart on their respective proposals. In Holmes Typography, the parties
       were found to have reached impasse once it became evident neither side was moving on the
       issues of wages and workweek hours, which resulted in a strike. When the District of Columbia
       appellate court later noted how “[i]mpasse on a single critical issue can create an impasse on
       the entire agreement,” it cited the NLRB’s decision in CalMat Co. in support of that
       proposition. Erie Brush & Manufacturing Corp. v. National Labor Relations Board, 700 F.3d
       17, 21 (D.C. Cir. 2012) (citing CalMat Co., 331 N.L.R.B. at 1097). However, in CalMat Co.,
       the Board still found the party contending the existence of an impasse carried the burden,
       which required a fact-intensive analysis guided by the five factors in Taft. CalMat Co., 331
       N.L.R.B. at 1097-98. This was also found to be true by the federal court in Erie Brush, where
       they noted it was still necessary to consider the five Taft factors when deciding whether


                                                    -7-
       impasse existed due to a single critical issue. Erie Brush, 700 F.3d at 21. It was also significant
       to the court that both parties understood bargaining to be at an impasse. It would therefore
       appear in instances where the NLRB had deviated from using the five Taft factors exclusively,
       both parties were generally of the opinion they had reached impasse. Here, the ILRB, for the
       first time, elected, without explanation, to rely upon the three-factor, single critical issue
       impasse test to conclude the parties had, in fact, reached “a good faith impasse.” This not only
       constituted a substantial departure from its previous practice but was not consistent with the
       analysis still required by CalMat Co., cited by the ILRB as authority for its election. The ILRB
       also stated, “In choosing to adopt the three-factor critical issue impasse test, we find it
       unnecessary to apply the five[-]factor test that the Board has previously utilized to determine
       the existence of an impasse.”
¶ 28        The United States Supreme Court has frequently held “an agency must cogently explain
       why it has exercised its discretion in a given manner.” Motor Vehicle Manufacturers Ass’n of
       the United States, Inc. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 48
       (1983). “[A]n agency changing its course must supply a reasoned analysis ***.” Greater
       Boston Television Corp. v. Federal Communications Comm’n, 444 F.2d 841, 852 (D.C. Cir.
       1970). “[I]t must be clearly set forth so that the reviewing court may understand the basis of the
       agency’s action and so may judge the consistency of that action with the agency’s mandate.”
       Atchison, Topeka & Santa Fe Ry. Co. v. Wichita Board of Trade, 412 U.S. 800, 808 (1973). As
       noted in Atchison, Topeka & Santa Fe Ry. Co., an agency such as the NLRB “may articulate
       the basis of its order by reference to other decisions,” as the ILRB did here. (Internal quotation
       marks omitted.) Atchison, Topeka & Santa Fe Ry. Co., 412 U.S. at 807. However, although
       they referenced CalMat Co. as a basis for their reasoning, they failed to follow it.
¶ 29        In this case, the ILRB not only adopted for the first time the “single critical issue impasse
       test,” it also gave no explanation for why it decided to do so in this instance, despite the ALJ’s
       recommendation to the contrary. Without stating a reason, the ILRB stated simply:
                 “To resolve this question, we adopt the NLRB’s approach to single critical issue
                 impasse and find that the parties reached single issue impasse on the critical issue of
                 subcontracting. In light of this analysis, we decline to adopt the ALJ’s
                 package-by-package approach to determining the existence of an impasse and her
                 proposed remedy of partial implementation, to which both parties strenuously
                 excepted.”
       As we noted previously, the ILRB merely indicated by way of a footnote that the ILRB found
       it unnecessary to apply the five-factor test at all. In the ALJ’s recommendation to the ILRB,
       she noted how the use of the Taft factors would lead the ILRB to a different result regarding the
       existence of an impasse. When applying the Taft factors, the record clearly established
       AFSCME did not have a “contemporaneous understanding” the parties were at an impasse.
       See Taft, 163 N.L.R.B. at 478.
¶ 30        On the morning of January 8, 2016, the Union presented CMS with a counteroffer on the
       issue of subcontracting. After the Union detailed the various concessions it had made in its
       counteroffer, CMS stated they did not have anything to give the Union at that point. According
       to the State’s notes about the meeting, CMS followed by saying it was reviewing mandatory
       overtime, had been working on preparing for negotiation until late the previous evening, and
       had arranged a phone call at noon that day. The parties agreed to meet after the call, and the
       course of events when they reconvened in the afternoon evidenced a continued intention to

                                                    -8-
       negotiate. The Union made a proposal regarding “DOC/DJJ Roll Call” after lunch at 1:10 p.m.
       CMS believed this to be a permissive topic and chose not to bargain. The Union made a health
       insurance proposal, followed by a proposal on wages and step increases. The Union made
       concessions by reducing the wage step percentages it had previously proposed but believed the
       State’s plan of having a nonpensionable merit pay was unconstitutional. CMS shifted to a
       “Health and Safety” package and said it would not agree to a memorandum of understanding.
       The State proceeded to explain that why it believed the parties were at impasse was because
       they had engaged in 67 days and 24 sessions of bargaining and the Union seemed unwilling to
       budge on certain issues. We note the aforementioned reasons are not always indicative of an
       impasse. “[A]n impasse should not be mechanically inferred simply because the parties have
       failed to reach complete agreement after some specified number of negotiating sesions [sic] or
       whenever one party announces that his position is henceforth fixed and no further concessions
       can be expected (final offer.)” Circuit-Wise, Inc., 309 N.L.R.B. 905, 919 (1992). Also,
       “[n]othing is more common during a negotiation than for one or both parties to make
       nonnegotiable demands. Usually this is bluffing, since if the negotiation is truly multifaceted,
       there is generally a price at which the parties will surrender these demands.” Duffy Tool &
       Stamping L.L.C. v. National Labor Relations Board, 233 F.3d 995, 999 (7th Cir. 2000).
¶ 31        When CMS declared impasse, AFSCME representatives disagreed and reiterated many
       times the parties were not at an impasse. The Union was described in both sets of notes as
       saying it was “shocked and appalled” and had, or was working on, counters in those areas of
       alleged impasse. The Union went on to say that, earlier that day, it had accepted the State’s
       $1000 bonus proposal in the “Wages and Steps” package. In both sets of notes, the Union
       stated at least three times it did not believe the parties were at impasse and it was not done
       bargaining. This is of particular significance since in most instances where the NLRB has
       chosen to utilize the “single critical issue impasse test,” both parties have acknowledged their
       belief they were truly at impasse. Such is not the case here. Moreover, at no point in the
       negotiations, prior to declaring impasse, did CMS state it was near its bottom line. “The failure
       of a party to communicate to the other party the paramount importance of the proposals
       presented at the bargaining table or to explain that a failure to achieve concessions would result
       in a bargaining deadlock evidences the absence of a valid impasse.” Virginia Holding Corp.,
       293 N.L.R.B. 182, 183 (1989). For these and other reasons expressed herein, we do not believe
       the record adequately supports a finding of impasse.
¶ 32        Considering the legal impediments to impasse to be discussed later, under the Taft factors,
       the parties would not be at an overall impasse. At the outset of negotiations, the parties adopted
       a “package approach” whereby various bargaining issues were grouped into logical or
       otherwise related “packages.” As topics within those packages were resolved, the parties
       would note a tentative agreement on that issue until either all issues in the package were
       resolved or they agreed to move remaining items to another package. This happened several
       times during the negotiation process. The fact that disagreement remained as to a particular
       issue did not mean the remaining issues within that package could not be resolved, nor did it
       mean an item could not then be moved to another package for resolution later. Under a Taft
       analysis of this bargaining process, a package-by-package analysis would not lead to a finding
       of an impasse unless it was clear that the only issues in the remaining packages were ones upon
       which neither side would negotiate further. The only way the two approaches can be reconciled
       is if the ALJ and the ILRB misapplied the test. Their analysis of the first two factors was


                                                   -9-
       possibly correct. The parties may have been at an impasse on the issue of subcontracting at a
       given point in time, and the parties considered subcontracting a critical issue. However, the
       ALJ explained how “packaging” proposals aided in the resolution of bargaining issues as the
       process developed. It was also clear from the record, AFSCME was very interested in
       watching how negotiations proceeded with other bargaining units in the state, and it was
       impossible to determine, at the stage negotiations were in when CMS declared impasse,
       whether further movement might become possible as packages were either resolved or
       reconstructed. As we stated above, despite citing CalMat Co. for the “single critical issue
       impasse test,” the ILRB failed to apply the test as outlined in that case.
¶ 33        We believe the ILRB’s conclusion that the “single critical issue impasse test” allowed them
       to disregard the Taft factors was in error. Such a position effectively rejects the body of cases
       and NLRB decisions they cite in support. Although our conclusion necessitates a remand, for
       purposes of clarity, we discuss some of the other issues relative to application of the “single
       critical issue impasse test” as they relate to this case. Both the ALJ and the ILRB reasoned no
       new CBA could be reached without agreement on the single issue of subcontracting and that
       such a finding was sufficient to meet the requirements of the third element; namely, that further
       negotiations were meaningless without resolution of this single issue, as a breakdown in
       negotiations. This reasoning conflates the first two elements with the third, rendering it
       superfluous. Assuming the parties could not resolve the particular issue of subcontracting, at
       that particular point in time, it did not mean they were unable, or would be unable, to resolve a
       number of other issues at the same time. In addition, as we said, the record reveals AFSCME
       was particularly concerned with the progress of negotiations with other bargaining units on this
       same issue. Contrary to the interpretation rendered by the ALJ and the ILRB, the reasoning in
       CalMat Co., 331 N.L.R.B. at 1097, must apply. The third element is found to exist when “there
       can be no progress on any aspect of the negotiations” until the impasse on the critical issue is
       resolved CalMat Co., 331 N.L.R.B. at 1097. For example, the NLRB has concluded in certain
       situations there can be no contract regardless of resolution of all other issues because it is clear
       from the language of the parties that there will be no resolution of this issue. Stein Industries,
       Inc., 365 N.L.R.B. No. 31, slip op. at 4 (2017) (slip opinion); see also Erie Brush, 700 F.3d at
       23 (“Because ‘the parties’ failure to agree on this issue destroyed any opportunity for reaching
       a ... collective-bargaining agreement’ [citation], the impasse on [even one of the outstanding
       issues] led to a breakdown in overall negotiations.” (quoting CalMat Co., 331 N.L.R.B. at
       1098)). The ALJ’s determination no progress could be made was premature and belies the
       record. As recently as January 7, 2016, the day before CMS declared impasse, the parties had
       reached an agreement on a “Miscellaneous Pay Provisions” package. This is not indicative of a
       complete breakdown in negotiations. See Sierra Publishing Co., 291 N.L.R.B. at 557 (finding
       no impasse where the parties had reached agreement on numerous packages the day before and
       neither party evidenced a belief that impasse was imminent).
¶ 34        We note in cases where a single critical issue was found to cause a complete breakdown
       and courts found “there can be no progress on any aspect of the negotiations,” the parties made
       it abundantly clear through their language at the bargaining table. CalMat Co., 331 N.L.R.B. at
       1097; see also Erie Brush, 700 F.3d at 23. In CalMat Co., where impasse was reached on the
       critical issue of pensions, the employer stated it was unwilling to make any concessions until
       the union got “off [their]…damn pension plan.” CalMat Co., 331 N.L.R.B. at 1093. In Erie
       Brush, the parties reached impasse on the issue of union security, and each side stated on


                                                    - 10 -
       numerous occasions it was unwilling to concede the issue and a contract would not be finalized
       unless its view of the issue was incorporated. Additionally, in Erie Brush, it was the last
       noneconomic package for the parties to discuss, and they stated they would not move to
       economic packages until this issue was resolved. Erie Brush, 700 F.3d at 23. In Paulsen v. All
       American School Bus Corp., 967 F. Supp. 2d 630, 642-43 (E.D.N.Y. 2013), the court stated
       there was “no complete breakdown in the entire negotiations,” where there was substantial
       movement on important topics because it showed the bargaining process was still viable when
       impasse was declared. (Internal quotation marks omitted.)
¶ 35       Here, while the parties were moving slowly toward an agreement, progress was still being
       made in other areas of the negotiation. In addition, the negotiation process had to be considered
       in its entirety. These parties started slowly and were in substantial disagreement from the
       outset. As noted above, the ALJ found the negotiation process between these two sides started
       and progressed differently than they ever had before, which is further evidence of the relevance
       of the Taft factors, since the bargaining history of the parties is a factor to be considered.
¶ 36       For all of these reasons, we must remand this case to the ILRB in order to provide them an
       opportunity either to explain their reasoning for departing from their long-standing practice of
       using the Taft factors test as the exclusive means of assessing whether parties have reached an
       impasse or to use those same factors as they have done previously to reach a decision. See
       Motor Vehicle Manufacturers Ass’n of the United States, Inc., 463 U.S. at 48; see also
       Atchison, Topeka & Santa Fe Ry. Co., 412 U.S. at 822 (finding if a reviewing court cannot
       discern the policies the agency is pursuing by departing from its prior decisions, “it may
       remand the case to the agency for clarification and further justification of the departure from
       precedent”). “[I]t is the agency’s responsibility, not [the reviewing court’s], to explain its
       decision.” Motor Vehicle Manufacturers Ass’n of the United States, Inc., 463 U.S. at 57. It is
       within the ILRB’s discretion whether to adopt the reasoning of the ALJ’s findings and
       recommendation, but if it chooses to depart from it, the ILRB must make clear its awareness of
       the ALJ’s recommendation and its reasons for taking a different course. See Greater Boston
       Television Corp. 444 F.2d at 853. The ILRB merely acknowledged the ALJ’s
       recommendation, but that was not enough. Contrary to the State’s argument, it does not matter
       that the ILRB was merely changing course rather than abandoning the impasse test outright;
       both require explanation from the ILRB.
¶ 37       At oral arguments, the State sought to remind us we can affirm on any basis within the
       record and gave additional reasons for the ILRB’s actions, asking us to review the ILRB’s
       decision anew. However, “the courts may not accept appellate counsel’s post hoc
       rationalizations for agency action. [Citation.] It is well established that an agency’s action must
       be upheld, if at all, on the basis articulated by the agency itself.” Motor Vehicle Manufacturers
       Ass’n of the United States, 463 U.S. at 50.
¶ 38       Although there were additional arguments presented by the parties regarding the finding of
       an impasse, since we are vacating the ILRB’s order and remanding to permit it an opportunity
       to either explain why it departed from previous practice or to apply the Taft factors in
       accordance with its precedent, we need not consider them here. We will however discuss those
       issues that impact the remand of the proceedings to the ILRB.




                                                   - 11 -
¶ 39                                    B. Unfair Labor Practices
¶ 40       AFSCME and CMS allege the ILRB erred in its findings with regard to the unfair labor
       practices listed below. Our review of these contentions of error is under the clearly erroneous
       standard. See Fraternal Order of Police, Chicago Lodge No. 7 v. Illinois Labor Relations
       Board, 2011 IL App (1st) 103215 ¶ 18, 961 N.E.2d 855. This standard “accords substantial
       deference to the administrative decision, in acknowledgment of the agency’s experience and
       expertise in resolving matters within its purview.” Fraternal Order of Police, Chicago Lodge
       No. 7, 2011 IL App (1st) 103215, ¶ 18. “[T]he agency decision will be deemed ‘clearly
       erroneous’ only where the reviewing court, on the entire record, is ‘left with the definite and
       firm conviction that a mistake has been committed.’ ” AFM Messenger Service, Inc. v.
       Department of Employment Security, 198 Ill. 2d 380, 395, 763 N.E.2d 272, 282 (2001)
       (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)).

¶ 41                                           1. Direct Dealing
¶ 42       AFSCME contends the ILRB erred in not finding CMS engaged in direct dealing. We
       disagree.
¶ 43       The question of whether an employer engaged in direct dealing involves a mixed question
       of law and fact. American Pine Lodge Nursing & Rehabilitation Center v. National Labor
       Relations Board, 164 F.3d 867, 880 (4th Cir. 1999). “The fact that an employer chooses to
       inform employees of the status of negotiations, or of proposals previously made to the union,
       or of its version of a breakdown in negotiations will not alone establish a failure to bargain in
       good faith.” American Federation of State, County & Municipal Employees, Council 31, 10
       PERI ¶ 3031 (ILLRB 1994) (City of Chicago (Department of Public Health)).
       “[C]ommunication with employees is unlawful when the context of the conversation is not to
       inform employees but rather to have the effect of coercing the employees from exercising their
       right to bargain through the representative of their choosing.” Tri-State Professional
       Firefighters Union Local 3165, 32 PERI ¶ 153 (ILRB State Panel 2016). Examples of
       improper direct dealing include “efforts at reaching a separate agreement with employees;
       enlisting support of employees through threats of reprisal or promises of benefit and; [sic]
       inducing employees to withdraw from the union.” Tri-State Professional Firefighters, 32 PERI
       ¶ 153. Communications are not unfair labor practices or evidence of an unfair labor practice
       unless a reasonable employee would view the communications as conveying a threat of
       reprisal or force or promise of benefit. American Federation of State, County, & Municipal
       Employees, Council 31, 11 PERI ¶ 2016 (ISLRB 1995) (City of Mattoon).
¶ 44       “[N]o complaint shall issue based upon any unfair labor practice occurring more than six
       months prior to the filing of a charge with the Board ***.” 5 ILCS 315/11(a) (West 2014). As
       was noted by the ALJ, AFSCME filed their complaint with the ILRB on February 22, 2016,
       and since a number of the allegations fall outside the six-month period, they are untimely and
       the ILRB had no jurisdiction to consider them, and neither do we. Therefore, we cannot review
       any unfair labor practice allegations prior to August 22, 2015. It is appropriate, however, to
       examine even the untimely allegations when considering the context of the parties’ bargaining
       history in its entirety. In this way, we can determine whether, during the six-month period prior
       to the filing of the unfair labor practice charge, the respondent was bargaining in good faith.
       Tri-State Professional Firefighters, 31 PERI ¶ 78 (ILRB State Panel 2014).


                                                  - 12 -
¶ 45        Here, the ALJ separated the allegations of unlawful direct dealing into two categories. The
       first related to “away from the table communications,” including (a) statements from the
       governor’s office about other trade union contracts; (b) the Crain’s September 2015 business
       article; (c) the State’s response to a Union bargaining bulletin published on CapitalFax.com on
       October 6, 2015; (d) a December 11, 2015, letter regarding health care; and (e) the Barclay
       memorandum of January 6, 2016. The second category involved the “Employee Engagement
       Survey.” The ALJ noted how the Union relied on the three-part test used by the NLRB to
       assess the direct-dealing allegations, namely (1) direct communication by the employer with
       union-represented employees; (2) the purpose of the discussion being either the establishing or
       changing of wages, hours, and terms and conditions of employment or to undercut the Union’s
       role in bargaining; and (3) the communications excluded the Union. The ALJ opted not to
       follow the NLRB’s analysis, which had never been expressly incorporated by the ILRB. She
       chose instead to analyze these “away from the table communications” by the standard for
       direct dealing found in Tri-State Professional Firefighters, 32 PERI ¶ 153. In that case, the
       ILRB required the Union to show by a preponderance of the evidence the communication from
       the employer had the effect of coercing the employees, preventing them from exercising their
       right to bargain through the representative of their choosing. This meant they had to show:
                “(1) the employee engaged in union and/or protected, concerted activity; (2) that the
                employer knew of this conduct; and (3) that the employer took an adverse employment
                action against the employee, in whole or in part, because of anti-union animus, or that
                the protected conduct was a substantial or motivating factor in the adverse action.”
                Tri-State Professional Firefighters, 32 PERI ¶ 153.
       The ILRB adopted the same analysis in their order. Addressing first the comments from the
       governor’s office, in several different communications, during the period of collective
       bargaining, the governor and others on his staff said AFSCME continued to reject certain
       proposals that were accepted by other trade unions. The ILRB described this as a statement of
       CMS’s “ ‘version of a breakdown in negotiations,’ ” (quoting Fraternal Order of Police,
       Lodge 7, 26 PERI ¶ 115 (ILRB Local Panel 2010)), which is permissible under both NLRB
       and ILRB case law. The ALJ found the statements were not “so detrimental to the Union’s
       ability to function” and did not “undermine their role as the exclusive representative as to run
       afoul of the [Illinois Public Labor Relations] Act.” The ALJ also found these comments, as
       well as those relating to the State’s financial difficulties in relation to pension funding, fell
       within the “safe harbor” provisions of section 10(c) of the Illinois Public Labor Relations Act.
       5 ILCS 315/10(c) (West 2014). Section 10(c) of the Illinois Public Labor Relations Act permits
       the expression or dissemination of “views, argument, or opinion” so long as they “contain[ ] no
       threat of reprisal or force or promise of benefit.” 5 ILCS 315/10(c) (West 2014). It also says
       such statements “shall not constitute or be evidence of an unfair labor practice under any of the
       provisions of this Act.” 5 ILCS 315/10(c) (West 2014). The ALJ noted how, at the same time,
       the Union was likewise characterizing the State as maintaining “extreme,” “radical and
       harmful demands” and simply attempting to lessen the rights of unions. Unlike potentially
       actionable statements directed solely at members of the Union, the comments by the
       governor’s office were public and made both to CMS and AFSCME, as well as everyone else
       in the state. They met none of the other criteria for direct dealing, and as a result, they were
       protected by section 10(c) of the Illinois Public Labor Relations Act. The Crain article, of
       which the Union complained, was published in September 2015. It stated the administration


                                                  - 13 -
       was willing to provide a merit-pay pool “amounting to 2 percent of payroll each of the next
       four years.” At the bargaining session, after the article’s publication, CMS made its merit pay
       proposal establishing a bonus pool equal to 2% of payroll for each of the four years of the
       successor CBA. The ALJ compared the situation to American Federation of State, County &
       Municipal Employees, Council 31, 31 PERI ¶ 160 (ILRB State Panel 2015) (County of
       Kankakee), where the ILRB noted a direct dealing violation “lies in bypassing the
       representative” and attempting to reach an agreement directly with employees. (Emphasis in
       original.) Here, the ALJ said, the State was not attempting to reach an agreement directly with
       employees, and there was no statement by any person in an official capacity, which conveyed a
       threat of reprisal or promise of benefit. The CapitolFax.com posts were in response to posts by
       AFSCME that said CMS was demanding a merit pay “scheme” and listed proposals to which
       AFSCME claims CMS made “virtually no change.” The governor’s administration responded
       by saying AFSCME members should ask their leaders to “start telling them the truth” because
       the bulletin was false and misleading. The administration’s post also refuted parts of the
       previous article to which they took exception. The ALJ concluded the information presented
       by the State was not blatantly false and was made to correct what it believed were inaccuracies
       presented to the public by AFSCME. The ALJ found the posted article fit into the “safe
       harbor” exception of section 10(c) of the Illinois Public Labor Relations Act. On December 11,
       2015, CMS sent a letter to employees regarding health insurance wherein they mentioned
       “considerable misinformation” being provided to them “in recent weeks” and outlined some of
       the anticipated changes to health insurance premiums as a result of federal insurance
       requirements. The letter went on to say the State expected employees would be able to remain
       on existing health care plans, and the State intended to reach an agreement on health care
       where they would continue paying the majority of active employees’ health care costs and
       100% of the premiums for retirees. Although initially characterized as a separate unfair labor
       practice, the ALJ noted how the Union’s post-hearing brief considered the letter to be
       “evidence of bad faith.” The ALJ found the letter informative, not threatening or coercive, and
       similar to other letters employees were accustomed to seeing whenever benefit choice periods
       or changes in health care occurred. The January 6, 2016, memorandum to agency directors
       from Jason Barclay, general counsel for the governor, discussed the State’s employee
       compensation proposals, including the use of bonuses, gainsharing, and merit pay, while also
       proposing to stop automatic step increases until the State’s overall budget picture improved.
       The memo announced the State was implementing the new program with merit employees and
       the 17 labor unions who had already signed CBAs in 2015. It also provided an “update” on the
       merit pay proposal to AFSCME. The Union’s chief complaint regarding this memo had to do
       with Family and Medical Leave Act of 1993 (FMLA) (29 U.S.C. § 2601 et seq. (2012)) leave
       and missed days of work. The ALJ properly found this was simply a matter of either a
       misunderstanding or clarification and was not indicative of any effort on the part of the State to
       bypass the Union. The memo was simply providing information on employee compensation
       proposals.
¶ 46       With regard to the second category, the employee surveys, the ILRB acknowledged there
       was no precedent on such surveys but accepted the ALJ’s conclusion there was no direct
       dealing. Finding neither NLRB nor ILRB case law on employee surveys, the ALJ concluded
       since there was no indication the information solicited directly from employees was intended
       to induce them to withdraw from the Union, or was attempting to negotiate separately from the


                                                   - 14 -
       Union, the survey did not constitute direct dealing. The ALJ noted the Union failed to even
       raise such an argument in their post-hearing brief. The survey was not coercive, a significant
       focus of the ILRB’s inquiry in direct-dealing cases of this type, and she found the questions
       innocuous and not derogatory toward the Union. The fact that some questions might have
       related to matters that were the topic of collective bargaining was not of significance since not
       even the Union’s witnesses believed they were an effort to reach a separate agreement with
       employees absent the Union. The ALJ also found the survey was not an effort to either gain the
       support of the Union members or serve as some sort of threat of reprisal, and therefore it failed
       to fulfill any of the requirements for direct dealing by means of communication with
       employees. The ILRB agreed, and since we agree with both the ALJ’s and the ILRB’s analysis,
       we do not find the ILRB’s ruling was clearly erroneous.

¶ 47                                       2. Tolling Agreement
¶ 48       CMS contends the ILRB erred in finding AFSCME did not repudiate the “Tolling
       Agreement” between the parties while AFSCME argues the ILRB did not have jurisdiction to
       review the alleged breach of contract. We disagree with both.
¶ 49       Generally, the ILRB lacks jurisdiction to enforce negotiated agreements, such as CBAs or
       grievance settlements. Amalgamated Transit Union, Local 241, 32 PERI ¶ 161 (ILRB Local
       Panel 2016). However, in certain circumstances, the contractual breach is “substantial enough
       to indicate a ‘repudiation’ or ‘renunciation’ of the collective bargaining agreement or
       bargaining obligation, and therefore a unilateral change in the employees’ working conditions
       which would violate Section 10(a)(4) of the [Illinois Public Labor Relations] Act.” Fletcher, 3
       PERI ¶ 2063 (ISLRB 1987). “[I]f the parties’ negotiations result in a ‘legitimate impasse,’ the
       employer may unilaterally implement changes in the employees’ terms and conditions of
       employment consistent with its pre-impasse proposals.” City of Peoria, 11 PERI ¶ 2007.
       Impasse does not permanently release a party from its duty to bargain collectively in good
       faith. City of Peoria, 11 PERI ¶ 2007. The existence of an impasse is “only a temporary
       deadlock or hiatus in the parties’ negotiations.” City of Peoria, 11 PERI ¶ 2007.
¶ 50       The language of the “Tolling Agreement” states, “The parties may either mutually agree
       that an impasse exists or, if a dispute exists with respect to the existence of an impasse, the
       parties agree to submit the matter to the Illinois Labor Relations Board.” The “Tolling
       Agreement” limited the State’s ability to implement their last, best, and final offer by first
       requiring the issue to be submitted to the ILRB if the parties did not believe an impasse had
       been reached. As this language directly impacts the bargaining obligation of the parties, we
       find the ILRB has jurisdiction to review the allegation. The next question is to determine
       whether the ILRB erred in finding the “Tolling Agreement” was not repudiated.
¶ 51       As the ALJ stated, the language in the “Tolling Agreement” has no specific terms for time
       and manner of submission to the ILRB. The State’s argument would require us to conclude the
       Union’s failure to immediately acquiesce to their assertion of the existence of an impasse
       somehow constituted a repudiation of the “Tolling Agreement” in its entirety. If anything, their
       failure to do so weighs more heavily toward the conclusion they did not believe the parties had,
       in fact, reached a true impasse in negotiations. The ALJ noted how the very terms of the
       “Tolling Agreement” contemplates the parties were in disagreement over whether a good-faith
       impasse had been reached. AFSCME submitted it to the ILRB after CMS filed its complaint of
       unfair labor practices, a delay of five weeks, during which the parties attempted to continue

                                                  - 15 -
       negotiating. Without specificity in the contract, we cannot say the ILRB’s ruling was clearly
       erroneous.

¶ 52                                       3. Information Requests
¶ 53       CMS argues the ILRB erred in finding CMS committed an unfair labor practice by not
       responding to AFSCME’s information requests. We disagree.
¶ 54       The duty to supply relevant information is a “fundamental obligation.” Oil, Chemical &
       Atomic Workers Local Union No. 6-418 v. National Labor Relations Board, 711 F.2d 348, 358
       (D.C. Cir. 1983). The relevance standard for information requests is “a liberal discovery-type
       standard, under which the requested information need only be relevant to the union in its
       negotiations.” United States Testing Co. v. National Labor Relations Board, 160 F.3d 14, 19
       (D.C. Cir. 1998); see also Chicago Regional Council of Carpenters, Local 13, 23 PERI 120
       (ILRB Local Panel 2007) (a broad range of potentially useful information should be allowed
       the union for the purpose of effectuating the bargaining process). Most importantly for our
       analysis here, as the ALJ noted, the NLRB has made it clear parties may not claim a lawful
       impasse if they have failed to provide information considered relevant to those issues upon
       which they disagree because this effectively frustrates the bargaining process. It would only
       make sense one side cannot claim an impasse in negotiations when they have failed to provide
       information that could either resolve the issues separating the two sides or better explain why a
       particular position is taken. “A legally recognized impasse cannot exist where the employer
       has failed to satisfy its statutory obligation to provide information needed by the bargaining
       agent to engage in meaningful negotiations.” Decker Coal Co., 301 N.L.R.B. 729, 740 (1991);
       see also E.I. du Pont de Nemours & Co., 346 N.L.R.B. 553, 558 (2006) (“It is well settled that
       a party’s failure to provide requested information that is necessary for the other party to create
       counterproposals and, as a result, engage in meaningful bargaining, will preclude a lawful
       impasse.”). In addition, as was noted by the ALJ, in Decker Coal Co., the NLRB found that,
       even if the information was provided, a legally recognized impasse could not be declared until
       the opposing side had a reasonable opportunity to analyze the information provided and
       formulate a proper counteroffer. Decker Coal Co. 301 N.L.R.B. at 740 (citing Storer
       Communications Inc., 294 N.L.R.B. 1056 (1989)). The ILRB adopted both the finding and
       analysis of the ALJ on this issue and we find no reason in the record to decide otherwise.
¶ 55       Here, AFSCME submitted a number of information requests regarding issues, such as
       merit pay, wages, and health insurance, which were never answered by CMS. AFSCME
       requested examples of “high performance”—the very standard CMS sought to implement for
       merit pay. Throughout negotiations, AFSCME expressed concerns about how “high
       performance” would be measured, especially in certain jobs such as correctional officers,
       where the nature of the work performed by the same officers depended on the duties to which
       they were assigned at different times. With regard to health care, the Union sought information
       about other potential cost saving initiatives and requested information on savings for the State
       as a result of the increases to out-of-pocket costs for employees. In discussions regarding the
       “Vacation, Holidays, and Leave of Absence” package, AFSCME requested information on the
       net cost savings of their January 6 proposal. Lastly, in the “Underutilization” package, the
       Union sought information previously provided in the 2012 CBA discussions but was not
       provided in the ongoing discussions in a timely fashion. Although the ALJ found the failure to
       provide the requested information did not actually hinder the Union’s ability to respond, the

                                                   - 16 -
       State’s final release of information came in mid-December, and there was not sufficient time
       for its consideration before CMS declared impasse on January 8, 2016. All this was relevant to
       the Union, and the ALJ disagreed with CMS, concluding the requests were made in good faith.
       This is further supported by the fact AFSCME had not been forewarned of the imminence of a
       declaration of impasse by the employer. It was not unreasonable for the Union to seek
       verifying information from CMS since in most instances what they proposed as either a
       “cost-savings” or “improved efficiency” was based on information held exclusively by them.
       For example, if figures were provided, which CMS performed calculations they claimed as
       evidence of cost-saving, it would not be unreasonable for the Union to want to perform the
       computation itself to verify the accuracy of those provided. In a number of instances, the ALJ
       concluded, and the ILRB agreed, the State acknowledged their intent to provide the
       information requested but either failed to do so entirely or did so in an untimely fashion. Since
       the information sought was relevant to the negotiation process, we agree it was not clear error
       to find CMS engaged in an unfair labor practice by failing to supply it.

¶ 56                 C. ALJ Permitting the Prefiling of Direct-Examination Testimony
                                                 in Lieu of Live
¶ 57        AFSCME contends the ILRB erred in affirming the ALJ’s decision to allow CMS to
       present witnesses in its case in chief and on rebuttal through affidavits. We agree.
¶ 58        The ALJ’s decision to allow submission of direct examination testimony by way of
       affidavit is judged under the clearly erroneous standard of review. Department of Central
       Management Services/Illinois Commerce Comm’n v. Illinois Labor Relations Board, State
       Panel, 406 Ill. App. 3d 766, 767, 943 N.E.2d 1136, 1138 (2010). “Under this standard of clear
       error, we will uphold the Board’s decision unless our review of the entire record leaves us with
       the definite and firm conviction that a mistake has been committed.” (Internal quotation marks
       omitted.) Department of Central Management Services/Illinois Commerce Comm’n, 406 Ill.
       App. 3d at 770.
¶ 59        “ ‘Testimony’ is ‘[e]vidence that a competent witness under oath or affirmation gives at
       trial or in an affidavit or deposition.’ ” (Emphasis in original.) Aich v. City of Chicago, 2013 IL
       App (1st) 120987, ¶ 17, 991 N.E.2d 830 (quoting Black’s Law Dictionary 1613 (9th ed.
       2009)). “Similarly, a ‘witness’ is ‘[o]ne who gives testimony under oath or affirmation (1) in
       person, (2) by oral or written deposition, or (3) by affidavit.” (Emphasis in original.) Aich,
       2013 IL App (1st) 120987, ¶ 17.
¶ 60        “Hearsay evidence is an out-of-court statement offered to prove the truth of the matter
       asserted, and is generally inadmissible unless it falls within an exception.” People v. Lawler,
       142 Ill. 2d 548, 557, 568 N.E.2d 895, 899 (1991). Hearsay evidence is generally inadmissible
       in an administrative proceeding. WISAM 1, Inc. v. Illinois Liquor Control Comm’n, 2014 IL
       116173, ¶ 46, 18 N.E.3d 1; Slocum v. Board of Trustees of the State Universities Retirement
       System, 2013 IL App (4th) 130182, ¶ 35, 1 N.E.3d 102. In certain circumstances, testimony by
       sworn affidavit is allowed. Aich, 2013 IL App (1st) 120987, ¶ 13; see also Department of
       Central Management Services/Illinois Commerce Comm’n, 406 Ill. App. 3d at 770 (“a hearing
       could be ‘written’ in the sense that parties could be heard solely through their presentation of
       written arguments and documentary evidence to the agency”). However, in those instances, the
       administrative rules permitted the admission of affidavits, relaxed the rules of evidence, and
       permitted hearsay evidence.

                                                   - 17 -
¶ 61        In Aich, the court noted how, under the City of Chicago’s “General Rules and
       Regulations,” “ ‘the formal and technical rules of evidence shall not apply in the conduct of
       administrative hearings.’ ” Aich, 2013 IL App (1st) 120987, ¶ 13 (quoting City of Chicago
       General Rules and Regulations § 1.7 (eff. July 14, 1997)). The rules also specifically permitted
       the limited use of hearsay evidence “only if it is of a type commonly relied upon by reasonably
       prudent persons in the conduct of their affairs.” Aich, 2013 IL App (1st) 120987, ¶ 13 (quoting
       City of Chicago General Rules and Regulations § 1.7 (eff. July 14, 1997)). Further, the
       Chicago Municipal Code applied as well, which stated, “Subject to subsection (j) of this
       section, the administrative law officer may permit witnesses to submit their testimony by
       affidavit or by telephone.” Chicago Municipal Code § 2-14-076(g) (amended Apr. 29, 1998).
       In subsection (j), it states, “Upon the timely request of any party to the proceeding, any person,
       who the administrative law officer determines may reasonably be expected to provide
       testimony which is material and which does not constitute a needless presentation of
       cumulative evidence, shall be made available for cross-examination prior to a final
       determination of liability.” Chicago Municipal Code § 2-14-076(j) (amended Apr. 29, 1998).
       In Department of Central Management Services/Illinois Commerce Comm’n, the rules of the
       Illinois Commerce Commission applied, which stated, in section 200.660, “It is the policy of
       the Commission to encourage the advance submission of testimony and exhibits by all parties
       and staff witnesses.” 83 Ill. Adm. Code 200.660 (2014).
                “An administrative agency possesses no inherent or common law powers, and any
                authority that the agency claims must find its source within the provisions of the statute
                by which the agency was created. Illinois Local Labor Relations Board, 302 Ill. App.
                3d at 686-87, 707 N.E.2d at 179. Accordingly, the authority of an administrative
                agency to adopt rules and regulations is defined by the statute creating that authority,
                and such rules and regulations must be in accord with the standards and policies set
                forth in the statute.” Department of Revenue v. Civil Service Comm’n, 357 Ill. App. 3d
                352, 363, 827 N.E.2d 960, 969-70 (2005).
¶ 62        However, in the case before this court, the ILRB and the ALJ by extension are limited by
       their rules in the Illinois Public Relations Act and the Illinois Administrative Code. Section
       5(f) of the Illinois Public Labor Relations Act states:
                “In order to accomplish the objectives and carry out the duties prescribed by this Act, a
                panel or its authorized designees may hold elections to determine whether a labor
                organization has majority status; investigate and attempt to resolve or settle charges of
                unfair labor practices; hold hearings in order to carry out its functions; develop and
                effectuate appropriate impasse resolution procedures for purposes of resolving labor
                disputes; require the appearance of witnesses and the production of evidence on any
                matter under inquiry; and administer oaths and affirmations. The panels shall sign and
                report in full an opinion in every case which they decide.” 5 ILCS 315/5(f) (West
                2014).
       Section 1200.130 of the Illinois Administrative Code states, “[T]he Administrative Law Judge
       will, insofar as practicable, apply the rules of evidence applicable in Illinois courts.” 80 Ill.
       Adm. Code 1200.130 (2003). Therefore, unlike the situation in Aich, the default position for
       ALJs is the rules of evidence. Here, the ALJ permitted affidavits of clearly available witnesses,
       as each witness was cross-examined in the hearing. The affidavits were out-of-court statements
       offered for the truth of the matter asserted and did not fit under any of the established

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       exceptions to the rules against hearsay. While they may constitute admissible evidence in
       proceedings where the rules of evidence have been relaxed, or are otherwise admissible as a
       result of the rules or regulations by which the agency functions, there is no provision for the
       use of such evidence in proceedings such as these. Although judicial and administrative
       efficiency is desired, it cannot overrule the basic foundations of evidence.
¶ 63       Moreover, we believe the ALJ’s analysis of applicable case law was in error. The ALJ
       allowed the submission of prefiled direct evidence instead of live testimony, citing Department
       of Central Management Services/Illinois Commerce Comm’n, 406 Ill. App. 3d at 770. In that
       case, this court stated, “[T]he denial of an oral hearing is not necessarily the denial of a
       hearing,” as a hearing could be conducted by presentation of written arguments and
       documentary evidence to the agency. Department of Central Management Services/Illinois
       Commerce Comm’n, 406 Ill. App. 3d at 770. The distinction, which appears to have been
       missed by the ALJ, was that we were comparing the process of a “representation hearing” to a
       summary judgment proceeding, wherein the function of the ALJ, at that point, was to ascertain
       whether there were any fatal deficiencies in either party’s case. It constituted the pretrial
       process and did not take the position of an actual administrative trial. See Department of
       Central Management Services/Illinois Commerce Comm’n, 406 Ill. App. 3d at 773. Finding
       there were unresolved issues as to whether the respondents were managerial employees, we
       ruled the denial of an oral hearing was clearly erroneous. Department of Central Management
       Services/Illinois Commerce Comm’n, 406 Ill. App. 3d at 767. Nothing about our holding or
       analysis in Department of Central Management Services/Illinois Commerce Comm’n
       approved waiving the basic rules of evidence.
¶ 64       For this reason, the case before us is factually distinguishable from the Department of
       Central Management Services/Illinois Commerce Comm’n. In the prior case, the ALJ was
       tasked with seeing if there was enough information to proceed, whereas here, the ALJ was
       tasked with making factual determinations, suggesting applications of law, and making a
       recommendation for ruling. Because representation cases are nonadversarial fact-findings,
       “credibility concerns are not at issue.” Chief Judge of the 11th Judicial Circuit, 16 PERI
       ¶ 2043 (ISLRB 2000).
¶ 65       However, when the ILRB receives an unfair labor charge, its first duty is to investigate
       whether there is an issue of law or fact sufficient to warrant a hearing. Michels v. Illinois Labor
       Relations Board, 2012 IL App (4th) 110612, ¶ 44, 969 N.E.2d, 996. If the ILRB finds an issue
       sufficient to warrant a hearing, the ILRB will set the complaint for a hearing. Michels, 2012 IL
       App (4th) 110612, ¶ 44. In the hearing, the hearing officer makes credibility determinations,
       evaluating, among other things, the witness’s demeanor while testifying. See Board of Regents
       of Regency Universities v. Illinois Educational Labor Relations Board, 208 Ill. App. 3d 220,
       230, 566 N.E.2d 963, 970 (1991). The ALJ found providing the parties the opportunity for
       cross-examination would allow her to adequately make credibility determinations. We
       disagree. We note it is the established policy of the NLRB to not accept affidavits, as it affords
       no opportunity to cross-examine or evaluate demeanor. Limpco Manufacturing Inc., 225
       N.L.R.B. 987, 987 n.1 (1976). The ability to cross-examine alone does not enable the ALJ to
       determine credibility, as the evaluation of a witness’s demeanor and assessment of credibility
       includes how he or she responds to questions on direct examination as well as
       cross-examination. Any trial lawyer can relate instances where even the best prepared witness
       fails to answer a question on direct examination as expected or exhibits a demeanor during


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       questioning by his or her own counsel that clearly comes across as insincere or disingenuous.
       Judges make credibility determinations during both direct and cross-examination, and
       opposing counsel has the opportunity to follow up on cross-examination based upon how the
       questions were answered on direct. Cross-examining an affidavit prepared over time, either by
       or at the direction of counsel, will not produce the same results. Here, the Union was limited to
       questioning the affiants based only on the contents of their affidavits. Rather than help expedite
       the process, as was its intended purpose, if anything, the record would tend to support the
       conclusion the use of direct-examination affidavits merely required opposing counsel to
       engage in even more detailed questioning. Further, it deprived the ALJ of the opportunity to
       assess the credibility of the witnesses during direct examination and has no basis in the rules of
       evidence. For these reasons, we find the ALJ’s decision to accept prefiled, direct evidence was
       clearly erroneous.

¶ 66                                        D. Statutory Rights
¶ 67       CMS argues its last, best, and final offer did not require a waiver of the statutory rights to
       pension calculation, subsidized health insurance, and retiree health insurance, as the ALJ
       suggested. As we are remanding this case to the ILRB for proceedings consistent with this
       opinion, we decline to rule on this question since the answer is dependent on whether the ILRB
       determines impasse was reached.

¶ 68                                     III. CONCLUSION
¶ 69      For the reasons stated, we vacate the ILRB’s order and remand for proceedings consistent
       with this opinion.

¶ 70      Board decision vacated and remanded for further proceedings.




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