                                       2017 IL App (5th) 160046
             NOTICE
 Decision filed 11/8/17. The text
 of   this    decision   may   be           NO. 5-16-0046
 changed or corrected prior to
 the filing of a Peti ion for
 Rehearing or the disposition of
                                               IN THE
 the same.
                                    APPELLATE COURT OF ILLINOIS

                               FIFTH DISTRICT
________________________________________________________________________

AMERICAN FEDERATION OF STATE, COUNTY,           )     Petition for Review of
AND MUNICIPAL EMPLOYEES, COUNCIL 31,            )     an Order of the Illinois
                                                )     Labor Relations Board,
      Petitioner,                               )     State Panel.
                                                )
v.                                              )
                                                )
THE ILLINOIS LABOR RELATIONS BOARD and          )     No. S-CA-16-007
THE STATE OF ILLINOIS DEPARTMENT OF             )
CENTRAL MANAGEMENT SERVICES,                    )
                                                )
      Respondents.                              )
________________________________________________________________________

             JUSTICE CHAPMAN delivered the judgment of the court, with opinion.
             Justices Goldenhersh and Cates concurred in the judgment and opinion.

                                            OPINION

¶1           The petitioner, the American Federation of State, County, and Municipal Employees,

Council 31 (AFSCME), appeals a decision of the Illinois Labor Relations Board (ILRB)

dismissing its unfair labor charge against the State of Illinois Department of Central

Management Services (CMS). The charge challenged a policy requiring employees to pay the

entire cost of their health insurance premiums for any pay period during which they go on strike,

even if they are not on strike for the entire pay period. The charge was dismissed without a

hearing. AFSCME argues that the ILRB abused its discretion because AFSCME presented

sufficient evidence to warrant a hearing on its claims that (1) the policy was a unilateral change


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to a term of employment instituted at a time when the parties were in negotiations for a new

contract and (2) the policy improperly threatened to penalize employees for lawfully exercising

their right to strike.

¶2      After briefing was complete in this appeal, CMS filed motions asking this court to take

judicial notice of unrelated proceedings between the same parties pending in other courts. In

those proceedings, AFSCME argued that the procedures followed by the ILRB violated the Open

Meetings Act (5 ILCS 120/1 et seq. (West 2014)), which meant that its decision was not a final

order. In the motions to take judicial notice it filed in this case, CMS argued that the position

AFSCME took in the other proceedings was contrary to its assertion here that this court has

jurisdiction. CMS also filed a motion asking this court to remand this matter to the ILRB to

allow the ILRB to conduct additional proceedings that would eliminate any Open Meetings Act

problem. Although none of the parties challenge our jurisdiction over this matter, the question of

our jurisdiction is implicated by CMS’s motions, and we will therefore address it. We find that

we have jurisdiction to hear this appeal; we grant CMS’s motion to take judicial notice; we deny

CMS’s motion to remand; and we reverse the decision of the ILRB.

¶3      On July 27, 2015, AFSCME filed the unfair labor charge against CMS that forms the

basis of this appeal. In the charge, AFSCME alleged as follows: In June 2015, while the parties

were in negotiations for a new collective bargaining agreement, CMS posted a list of frequently

asked questions (FAQs) on its website. One of the questions concerned the payment of health

insurance premiums for employees who go on strike. The posted response indicated that

employees engaged in a strike would be required “to immediately pay the full cost of their health

insurance” premiums. AFSCME further alleged that the State continues to pay its share of the

premiums during other types of unpaid absences.


                                                2
¶4     In the charge, AFSCME argued that the policy set forth in the FAQ response violates

section 10(a)(1) and section 10(a)(2) of the Illinois Public Labor Relations Act (Labor Relations

Act) (5 ILCS 315/10(a)(1), (2) (West 2014)). AFSCME argued that the policy discriminates

against employees for going on strike, an activity protected under the Labor Relations Act,

because it treats striking employees differently from other employees who go on unpaid leave.

¶5      Attached to the charge were a printout of the FAQs posted on the CMS website and a

copy of portions of the State of Illinois employee benefits handbook. The relevant question and

response read as follows:

                 “Q. Will striking employees still receive health insurance?

                  A. Yes, but striking employees will be responsible for the full cost of their

       health insurance, including the amount normally contributed by the State on behalf of the

       employee. If striking employees miss any day during the pay period due to being on

       strike,   they   will   be   sent   a   bill   for   the   full   cost   of   their   coverage.”

       https://www.illinois.gov/employeefaqs/pages/default.aspx

The employee benefits handbook contained rules governing eligibility for the employer

contribution to health insurance for several types of unpaid leaves of absence. It showed that

employees remain eligible for the employer contribution to their health insurance premiums

during many, but not all, types of unpaid leave. It did not address the responsibility for paying

health insurance premiums when employees go on strike.

¶6     The unfair labor charge was assigned to ILRB member Michael Provines for

investigation. In July and August of 2015, Provines corresponded by e-mail with attorneys from

AFSCME and CMS to clarify the issues to be considered. During that correspondence, counsel

for AFSCME argued that the policy in the FAQ constituted an unfair labor practice for three


                                                  3
reasons. First, the policy acts as a threat to dissuade employees from striking because its message

to employees is that if they go on strike, even for one day, they would be required to pay the full

amount of their health insurance premiums for the entire pay period. See 5 ILCS 315/10(a)(1)

(West 2014). Second, the policy constitutes a unilateral unbargained-for change in a term of

employment-health insurance. See 5 ILCS 315/10(a)(4) (West 2014); Vienna School District No.

55 v. Illinois Educational Labor Relations Board, 162 Ill. App. 3d 503, 506-07 (1987) (citing

National Labor Relations Board v. Katz, 369 U.S. 736, 743-47 (1962)). Third, the policy

discriminates against employees who go on strike because other employees on unpaid leaves of

absence do not have to pay the employer’s share of their health insurance premiums. See 5 ILCS

315/10(a)(2) (West 2014).

¶7     On September 15, 2015, CMS sent a letter to Provines that served as its response to the

unfair labor charge. It argued that communicating its policy to its employees is protected as free

speech under section 10(c) of the Labor Relations Act. See 5 ILCS 315/10(c) (West 2014). CMS

also argued that the policy is not an unfair labor practice. CMS noted that an employer is not

required to subsidize a strike. It pointed out that, consistent with this principle, the reply to

another FAQ on the website indicates that striking workers would not be paid during a strike, a

policy the union does not challenge. CMS argued that the policy concerning health insurance

premiums was no different from the policy concerning wages. Finally, CMS argued that the

policy expressed in the FAQ was not a new policy and therefore did not change a term or

condition of employment during contract negotiations. In support of this argument, CMS alleged

that during a 2004 strike by employees of Northeastern Illinois University, the policy was

applied to those striking workers. Attached as an exhibit was a chart of the “pay codes” used by

CMS for various types of leaves of absence, including strikes. The chart indicates that striking


                                                4
employees are “100% responsible” for their health insurance premiums. It does not address

whether those employees are responsible for their entire premiums only for the duration of the

strike or for the remainder of the pay period as well.

¶8     In further e-mail correspondence, Provines asked counsel for CMS whether employees

are coded as “on strike” for the entire pay period, regardless of how many days they are on

strike, and, if so, why. Counsel indicated that the pay codes apply to entire pay periods,

regardless of the duration of the strike. He explained that it was “practically impossible” for the

payroll system to prorate health insurance premiums. He noted that other pay codes for unpaid

leaves of absence are handled the same way.

¶9     Provines forwarded the pleadings and correspondence to Executive Director Melissa

Mlynski, who issued a decision and recommended order on October 27, 2015. She found that

negotiations for a new collective bargaining agreement began in February 2015 and that the FAQ

response was first posted in June 2015. She further found that the employees represented by

AFSCME in the affected bargaining units were not then on strike and had never gone on strike.

She also noted that, although AFSCME never filed an amended charge, CMS had actual notice

of all three of its arguments. She therefore considered all three.

¶ 10   Mlynski first analyzed AFSCME’s contention that the policy discriminates against

employees for engaging in a strike, a protected activity under the Labor Relations Act. See 5

ILCS 315/10(a)(2) (West 2014). She explained that to prevail on such a claim, the union must

show that the employees actually engaged in protected activity (such as a strike); that the

employer was aware of their activity; and that the employer took an adverse action against the

employees. She concluded that because the bargaining units at issue had never gone on strike and




                                                  5
the policy had never been applied to them, AFSCME’s charge failed to state a claim under

section 10(a)(2).

¶ 11   Mlynski next considered AFSCME’s claim that CMS made a unilateral change to a term

of employment when it announced the policy in the FAQ. She noted that AFSCME, as the

charging party, had the burden of showing at least some evidence that CMS had unilaterally

changed a term of employment in order to be entitled to a hearing on this issue. Pointing to

CMS’s assertion that the 2004 Northeastern Illinois University strike was handled in the manner

described in the FAQ, she found that AFSCME did not present sufficient evidence to warrant a

hearing on this issue.

¶ 12   Finally, Mlynski considered AFSCME’s claim that the policy violates section 10(a)(1) by

threatening or dissuading employees from striking. In rejecting this claim, she pointed to the

State’s policy of not paying the salaries of striking employees while they are on strike, a policy

the union did not challenge. She found that the policy concerning health insurance premiums was

no different from this policy. She concluded that the unfair labor charge should be dismissed

without a hearing.

¶ 13   On November 9, AFSCME filed an appeal with the ILRB. AFSCME conceded that its

claim of discrimination under section 10(a)(2) was not ripe for decision because the policy had

not been applied to its members. It argued, however, that there was at least sufficient evidence to

raise questions on both of its other claims. First, AFSCME pointed out that it would be an unfair

labor practice under section 10(a)(1) to penalize striking employees by refusing to pay their

salaries for an entire pay period, rather than just during the strike. It argued that the policy at

issue was analogous to such a practice. Second, AFSCME argued that there was a genuine issue

of fact concerning whether the FAQ constituted a change in policy during contract negotiations,


                                                6
an unfair labor practice under section 10(a)(4). In support of this argument, AFSCME alleged

that CMS did not communicate this policy to the union or its members prior to posting it online.

AFSCME also alleged that its research showed that during the 2004 Northeastern Illinois

University strike, no faculty members were billed for the employer’s share of their health

insurance premiums and that nontenure track faculty members were reimbursed for improper

deductions after the strike ended. AFSCME argued that a hearing was necessary to resolve both

of its claims.

¶ 14    On December 15, 2015, the ILRB voted to adopt the decision of Executive Director

Mlynski. This vote took place at a meeting of the ILRB’s State Panel that was open to the public.

On January 22, 2016, the ILRB issued a written decision adopting Mlynksi’s decision and

dismissing the unfair labor charge. AFSCME timely filed a petition for review with this court.

¶ 15    This matter was fully briefed and ready to proceed to oral argument by December 2016.

On December 6, CMS filed a motion, asking us to take judicial notice of an appeal pending in

the Fourth District involving the same parties. Two days later, CMS filed another motion, asking

us to take judicial notice of two additional proceedings involving the same parties—an appeal in

the First District and a petition filed by AFSCME in the Cook County circuit court. In those

matters, all of which involved a single decision of the ILRB, AFSCME asserted that the decision

was not a valid final administrative decision because the ILRB’s procedures violated the Open

Meetings Act. CMS argued in the motions it filed in this case that because the ILRB followed the

same procedure in this case that it followed there, the position taken by AFSCME in those

proceedings is at odds with its invocation of our jurisdiction in this case.

¶ 16    On December 21, 2016, CMS filed a motion, asking this court to remand this matter to

the ILRB without considering the merits. CMS stated that it took no position on the Open


                                                  7
Meetings Act argument raised by AFSCME in the other proceedings. However, CMS argued that

in light of the unsettled Open Meetings Act question, the interest of judicial economy would be

best served by remanding the matter to the ILRB to allow it to hold additional proceedings that

would eliminate any Open Meetings Act problem. Both AFSCME and the ILRB opposed the

motion to remand.

¶ 17   We heard oral argument in this case in April 2017. At that time, we asked all three parties

to provide us with supplemental arguments on the questions of jurisdiction and the motion for

remand. We note that none of the parties have argued that we lack jurisdiction. Nevertheless, we

have an obligation to independently consider our jurisdiction, even if it is not challenged by the

parties, and we must dismiss the appeal if we do not have jurisdiction to decide it. See Fligelman

v. City of Chicago, 264 Ill. App. 3d 1035, 1037 (1994). We will therefore address the question.

We turn now to the issues raised by CMS’s motions.

¶ 18   We first consider the two motions to take judicial notice. A court may take judicial notice

of documents in the records of other courts or administrative tribunals. NBD Highland Park

Bank, N.A. v. Wien, 251 Ill. App. 3d 512, 520 (1993) (citing May Department Stores Co. v.

Teamsters Union Local No. 743, 64 Ill. 2d 153, 159 (1976)). We therefore grant both motions

and take judicial notice of the proceedings CMS identified.

¶ 19   As we mentioned earlier, all three proceedings involved one decision of the ILRB. There,

each of the parties filed an unfair labor charge against the other party. The two charges were

consolidated for a hearing before an administrative law judge (ALJ). The ALJ issued a lengthy

decision and recommended order. Both parties appealed different portions of that decision to the

ILRB. The ILRB did not adopt the ALJ’s decision in its entirety. Instead, it voted to adopt only

certain portions of the ALJ’s order. The vote took place at a hearing that was open to the public.


                                                 8
¶ 20   CMS filed a petition for review with the Fourth District almost immediately, before the

ILRB issued a written order. AFSCME filed a motion to dismiss, arguing primarily that the

decision of the ILRB was not a final and reviewable decision because no written decision had

been issued. See 5 ILCS 315/11(c), (e) (West 2014). AFSCME further argued that in order for a

written decision of the ILRB to be a final and reviewable decision, the ILRB must comply with

the requirements of the Open Meetings Act. AFSCME argued that to comply with the Open

Meetings Act, the ILRB would need to vote on the final written order at a meeting open to the

public. See Baldermann v. Board of Trustees of the Police Pension Fund, 2015 IL App (1st)

140482, ¶ 37; Howe v. Retirement Board of the Firemen’s Annuity & Benefit Fund, 2013 IL App

(1st) 122446, ¶ 32. It is this latter argument that CMS calls to our attention in its motions.

¶ 21   A few weeks after CMS filed its petition for review in the Fourth District, the ILRB

issued its written decision. It did not hold an additional public hearing to vote on that decision.

AFSCME then filed a petition for injunctive relief in Cook County, arguing that this procedure

violated the Open Meetings Act. See 5 ILCS 120/3(a) (West 2014) (providing that any individual

may bring a civil action seeking relief for violations of the Open Meetings Act). AFSCME also

filed its own petition for review in the First District, addressing the merits of the ILRB’s decision

in case it does not prevail on its Open Meetings Act argument. The First District appeal was

subsequently transferred to the Fourth District and consolidated with the appeal previously filed

there. The consolidated appeal remains pending.

¶ 22   Before turning to the question of jurisdiction, a brief explanation of the rationale

underlying AFSCME’s Open Meetings Act argument will be helpful. The statutory definition of

a “public body” includes administrative agencies of the State, thus the ILRB is a public body

subject to the requirements of the Open Meetings Act. See 5 ILCS 120/1.02 (West 2014). The


                                                  9
Open Meetings Act requires that all meetings of public bodies be open to the public, with certain

exceptions. 5 ILCS 120/2(a) (West 2014). Under one exception, a public body may hold a closed

meeting to consider the evidence and testimony that was presented in an open meeting,

“provided that the body prepares and makes available for public inspection a written decision

setting forth its determinative reasoning.” 5 ILCS 120/2(c)(4) (West 2014). Public bodies must

take all final actions in open meetings. 5 ILCS 120/2(e) (West 2014).

¶ 23   Here, the ILRB held a public meeting to consider AFSCME’s appeal of the Executive

Director’s recommended order. It voted at that meeting to adopt her decision in its entirety.

However, ILRB members signed a written decision adopting her recommended dismissal order

at a closed hearing. That decision sets forth the procedural history of the matter and states that

the ILRB upholds the Executive Director’s dismissal “for the reasons stated therein”; it does not

include independent findings of fact or conclusions of law. Essentially the same procedure was

followed in the Fourth District proceedings. There, however, the ILRB did not adopt all of the

findings of the ALJ. Thus, presumably, the written decision signed by board members included a

recitation of which findings it was adopting.

¶ 24   In the motion to dismiss AFSCME filed in the Fourth District, it cited two cases in which

panels of the First District found that, at least in some circumstances, signing a final written

decision at a closed meeting violates the Open Meetings Act even if it is done after a vote is

taken at an open meeting. See Baldermann, 2015 IL App (1st) 140482, ¶ 37; Howe, 2013 IL App

(1st) 122446, ¶¶ 25-26. Both panels held that the underlying administrative actions were not

valid final decisions. Baldermann, 2015 IL App (1st) 140482, ¶ 39; Howe, 2013 IL App (1st)

122446, ¶ 32. We note that both cases involved additional procedural irregularities that

supported the panels’ decisions. Baldermann, 2015 IL App (1st) 140482, ¶¶ 35-36; Howe, 2013


                                                10
IL App (1st) 122446, ¶ 32. However, the Howe court used broad language in holding “that the

written decision must be prepared and provided to each board member at or before the time the

Board votes to take a final action.” Howe, 2013 IL App (1st) 122446, ¶ 25; see also Baldermann,

2015 IL App (1st) 140482, ¶ 37 (following Howe on this point). Both panels concluded that, as a

result, they lacked jurisdiction to review the decisions. Baldermann, 2015 IL App (1st) 140482,

¶ 39; Howe, 2013 IL App (1st) 122446, ¶ 32.

¶ 25      As stated previously, AFSCME argued in the Fourth District that the ILRB ruling at issue

was not a valid final administrative decision under Baldermann and Howe, thereby depriving the

appellate court of jurisdiction to consider the appeal filed there by CMS. Accepting this

argument and applying it to this case would mean that we do not have jurisdiction over this case

either.

¶ 26      We need not determine whether the procedure followed in this case fully complied with

the Open Meetings Act. For the reasons that follow, we find that, even assuming the proceedings

did not fully comport with the Open Meetings Act’s requirements, the ILRB’s decision was a

final administrative decision, and it was not inherently null and void.

¶ 27      The Open Meetings Act provides two alternative mechanisms for individuals to seek

redress for violations (or anticipated violations) of its requirements. Any individual may file a

petition in court, alleging that a public body has not complied with the requirements of the Open

Meetings Act or that there is probable cause to believe a public body will hold proceedings that

do not comply. 5 ILCS 120/3(a) (West 2014). The trial court has the discretion to “grant such

relief as it deems appropriate.” 5 ILCS 120/3(c) (West 2014). The court has the authority to

declare “null and void any final action taken at a closed meeting in violation” of the Open

Meetings Act. Id. However, that is not the only type of relief the court may grant. It can instead


                                                 11
grant an injunction barring future violations or order the public body to make the minutes of any

closed meetings available to the public. Id. As an alternative, any individual seeking redress for a

violation may file a request for review with a “Public Access Counselor,” established as part of

the office of the Attorney General. 5 ILCS 120/3.5(a) (West 2014). After review, the Attorney

General must issue a binding opinion. If the Attorney General concludes that a violation has

occurred, the opinion can direct the public body to take appropriate action. 5 ILCS 120/3.5(e)

(West 2014).

¶ 28   As these procedures indicate, administrative actions taken in violation of the Open

Meetings Act are ordinarily voidable; they are not automatically void. That is, a declaration that

an action or decision is null and void is a remedy that must be requested and granted. Moreover,

declaring an action or decision null and void is considered an “extreme remedy”; it is not a

remedy that will be granted in all cases. See People ex rel. Graf v. Village of Lake Bluff, 321 Ill.

App. 3d 897, 908 (2001), rev’d on other grounds, 206 Ill. 2d 541, 544 (2003).

¶ 29   Likewise, we do not believe that a failure to comply with the requirements of the Open

Meetings Act will ordinarily prevent an administrative decision from being deemed “final.” In

this regard, we note that the circumstances before us are markedly different from those involved

in Howe and Baldermann. As noted earlier, those cases involved multiple procedural flaws in

addition to the fact that the final written orders were signed in closed meetings. In Howe, a

member of a board considering an injured paramedic’s application for duty disability benefits

made a motion to grant the application, and the board voted against that motion. However, there

was no indication that the board members ever actually voted on a motion to deny the application

before issuing a written decision denying the benefits. Howe, 2013 IL App (1st) 122446, ¶¶ 13-

14. In Baldermann, the agency’s written decision did not include all of the findings it was


                                                12
required to make. Baldermann, 2015 IL App (1st) 140482, ¶ 36. While these flaws may have

justified finding that the administrative decisions at issue in those cases were not final decisions,

we do not believe the same result is warranted here.

¶ 30   We express no opinion on whether the procedures followed in this case violated the Open

Meetings Act. We also express no opinion on whether a declaration voiding the decision would

be an appropriate remedy in the event that the ILRB’s procedures were found to violate that Act.

We conclude only that the decision of the ILRB constitutes a final administrative decision, which

we have jurisdiction to review.

¶ 31   We next consider CMS’s motion to remand this matter to the ILRB without first

addressing the merits. CMS notes that AFSCME itself cannot challenge the validity of the

decision under the Open Meetings Act because the 60-day time limit for doing so has passed.

See 5 ILCS 120/3(a), 3.5 (West 2014). However, it points out that any individual may file a

request for review with the Public Access Counselor within 60 days after discovering the

violation of the Open Meetings Act as long as the individual does so within two years after the

alleged violation occurred. 5 ILCS 120/3.5(a) (West 2014). Under this provision, CMS contends,

any union members or member of the public who was not previously aware of the decision could

file a request for review up until January 22, 2018. CMS further contends that if such a request is

successful, the Attorney General could nullify the ILRB’s January 2016 decision, which would

make our decision in this case moot. We are not persuaded.

¶ 32   CMS’s argument in favor of remand is based upon multiple layers of speculation. It

requires us to assume that (1) some individual will file a request for review, (2) the Attorney

General will find that a violation has occurred, and (3) the extreme remedy of declaring the




                                                 13
decision null and void will be imposed. Each of these possibilities is highly speculative. We

decline to remand this matter to the ILRB on the basis of speculative possibilities.

¶ 33   We now turn our attention to the merits of AFSCME’s petition for review. AFSCME

argues that it presented sufficient evidence to warrant a hearing on both its claim that CMS

committed an unfair labor practice under section 10(a)(4) of the Labor Relations Act by

unilaterally changing a term of employment and its claim that CMS committed an unfair labor

practice under section 10(a)(1) by threatening to require employees who go on strike for any part

of a pay period to pay the employer’s share of their health insurance premiums for the entire pay

period. Both CMS and the ILRB argue that the ILRB properly exercised its discretion in

reaching the opposite conclusions and that the FAQ posting was protected as free speech under

section 10(c). CMS also argues that AFSCME forfeited its claims of section 10(a)(1) and section

10(a)(4) violations because it did not amend its charge to include those claims. We agree with

AFSCME.

¶ 34   Our standard of review is informed by the fact that this matter was dismissed at the

investigatory stage. Under the Labor Relations Act, when the ILRB receives an unfair labor

charge, its first duty is to investigate the charge to determine whether a hearing is warranted. 5

ILCS 315/11(a) (West 2014); Michels v. Illinois Labor Relations Board, 2012 IL App (4th)

110612, ¶ 44. At this stage, the role of the ILRB is similar to that of a grand jury—that is, it may

call witnesses, assess their credibility, and draw reasonable inferences from the evidence in order

to determine whether there is sufficient evidence to warrant a hearing. Michels, 2012 IL App

(4th) 110612, ¶ 44. If the ILRB finds any issues of fact or law sufficient to require a hearing, it

issues a complaint setting forth those issues. Id. The matter then proceeds to a hearing. 5 ILCS




                                                14
315/11(a) (West 2014). If the ILRB does not find that the charge presents issues that warrant a

hearing, it will dismiss the charge. Michels, 2012 IL App (4th) 110612, ¶ 44.

¶ 35    Where, as here, the ILRB dismisses an unfair labor charge because it finds insufficient

evidence to warrant a hearing, we review its decision under the deferential abuse-of-discretion

standard. Id. ¶ 45. We will find an abuse of discretion if the ILRB’s decision is arbitrary,

“exceed[s] the bounds of reason,” or “ignore[s] recognized principles of law.” American

Federation of State, County & Municipal Employees v. Schwartz, 343 Ill. App. 3d 553, 559

(2003). As in all administrative review cases, the findings of fact supporting the dismissal order

are considered prima facie true and correct, and we will not set them aside unless they are

against the manifest weight of the evidence. Abrahamson v. Illinois Department of Professional

Regulation, 153 Ill. 2d 76, 88 (1992).

¶ 36    In assessing whether the ILRB ignored recognized principles of law, however, our review

is somewhat less deferential. Although we generally accord deference to the ILRB’s

interpretation of the statutes it administers, we are not required to accept its interpretation. City of

Burbank v. Illinois State Labor Relations Board, 128 Ill. 2d 335, 345 (1989). We also note that,

due to the parallels between section 10 of the Labor Relations Act (5 ILCS 315/10 (West 2014))

and section 8 of the National Labor Relations Act (29 U.S.C. § 158 (2012)), we may consider

federal administrative and judicial circumstances interpreting the National Labor Relations Act.

City of Burbank, 128 Ill. 2d at 345. With these principles in mind, we turn to the contentions of

the parties.

¶ 37    We will first address CMS’s forfeiture argument. CMS contends that AFSCME forfeited

arguments on both its section 10(a)(1) and section 10(a)(4) claims because the charge was not

amended to include these claims. We disagree.


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¶ 38    The Labor Relations Act gives the ILRB, its members, and hearing officers appointed by

the ILRB the discretion to amend an unfair labor complaint at any time before a final decision is

issued. 5 ILCS 315/11(a) (West 2014). Such amendments may be made either on the motion of a

party or sua sponte. Forest Preserve District of Cook County v. Illinois Labor Relations Board,

369 Ill. App. 3d 733, 746 (2006) (citing 80 Ill. Adm. Code 1220.50(f) (2003)). The complaint

may be amended to add allegations not included in the original charge “ ‘so long as the added

allegations are closely related to the original charge, or grew out of the same subject matter

during the pendency of the case.’ ” Id. at 746-47 (quoting Service Employees International

Union, Local 73, 20 PERI ¶ 85 (ILRB State Panel 2004)). The complaint may be amended to

conform to evidence presented if the amendment would not cause prejudice to any party. Id. We

note that the instant case was dismissed without a complaint being issued, but we believe the

same principles apply to the ILRB’s decision to consider all three issues.

¶ 39    In this case, we find that the allegations of all three claims are closely related to the

allegations in the original charge and all three claims involve the same underlying set of

circumstances. The charge cited both section 10(a)(1) and section 10(a)(2), but did not cite

section 10(a)(4). Also, the charge did not specifically allege that the policy of requiring union

members to pay the employer’s share of their premiums for any entire pay period in which they

go on strike constituted a unilateral change or that it acted as a threat against striking, although it

did allege that the policy was posted online at a time when the parties were negotiating a new

collective bargaining agreement and, as noted, the existence of the policy itself was a key part of

all three claims.

¶ 40    We also find that CMS was not prejudiced by Executive Director Mlynski’s decision to

consider all three claims. As she noted in her recommended order, CMS had actual notice of the


                                                  16
claims. Significantly, CMS responded to all three arguments during the administrative

proceedings.

¶ 41   We note that the authority cited by CMS in support of its forfeiture argument is

distinguishable. See Fraternal Order of Police, Chicago Lodge No. 7 v. Illinois Labor Relations

Board, 2011 IL App (1st) 103215, ¶¶ 27-30. There, the First District upheld the ILRB’s finding

that a union forfeited a claim. The union never asked for the complaint to be amended to include

the claim, and its attorney objected to hearing testimony related to that claim, arguing that the

testimony was not relevant because the claim was not at issue. Id. ¶¶ 29-30. The First District

found that the union forfeited the claim by objecting to the testimony. Id. ¶ 30. We therefore

reject CMS’s forfeiture argument, and we find that the ILRB properly exercised its discretion in

considering all three claims. We turn now to AFSCME’s contentions.

¶ 42   We will next consider AFSCME’s contention that the ILRB abused its discretion by

dismissing the unfair labor charge because the charge raised a factual question concerning

whether the policy described in the FAQ amounted to a unilateral change to a term or condition

of employment during contract negotiations. We agree.

¶ 43   The applicable law is not in dispute. The Labor Relations Act requires public employers

and unions to bargain collectively over the terms and conditions of employment. 5 ILCS 315/7

(West 2014). Refusal by either party to bargain in good faith constitutes an unfair labor practice.

5 ILCS 315/10(a)(4), (b)(4) (West 2014). An employer violates this requirement—and therefore

commits an unfair labor practice—when it makes a unilateral change to a term or condition of

employment that is the subject of collective bargaining while the parties are involved in contract

negotiations. Katz, 369 U.S. at 743-47; Vienna School District, 162 Ill. App. 3d at 506. In this

case, there is no dispute that health insurance is a term of employment that is covered under the


                                                17
parties’ collective bargaining agreements. The question is whether the policy described in the

FAQ represents a change in policy that occurred during contract negotiations. More precisely,

the question is whether the policy existed before it was posted on the website, which

undisputedly occurred while the parties were negotiating a new contract.

¶ 44   On the record before us, there is little evidence on this question and no evidence that

resolves the question. The record consists of the unfair labor charge, the parties’ e-mail

correspondence with the board member investigating the charge, CMS’s letter responding to the

charge, and the exhibits submitted by each party. AFSCME alleged that the policy was first

communicated to it when the FAQ was posted in June 2015. CMS did not dispute this allegation.

It alleged that the policy existed prior to being posted in the FAQ section of the website,

regardless of whether AFSCME or its members were aware of the policy. CMS further alleged

that the policy was previously followed during a strike by employees of Northeastern Illinois

University, while AFSCME alleged that its research showed that the policy was not followed

during that strike. Neither party provided any documentation to support its allegations

concerning the 2004 strike.

¶ 45   The only documentary evidence in the record on this question is the chart of pay codes

submitted by CMS and a section of the employee benefits handbook submitted by AFSCME. As

noted earlier, the chart of pay codes shows that striking employees were previously responsible

for paying 100% of their health insurance premiums during a strike. Significantly, however, the

chart is silent as to any employee responsibility for health insurance premiums during the

remainder of any pay period in which employees strike. The employee benefits handbook does

not address the health insurance benefits of striking workers at all. Thus, the documentary

evidence available does not conclusively answer the salient question.


                                               18
¶ 46   We note that apparently Michael Provines, the board member who investigated the claim,

did not find these documents conclusive either. As we discussed earlier, he asked CMS’s

attorney whether the pay code for striking workers applied only during the strike or for the

remainder of the pay period. The question was necessary precisely because the answer could not

be found in the available evidence. Counsel asserted in response that the code had always applied

the entire pay period, even if a strike lasted only one day. However, the allegation of a party’s

attorney in an e-mail is not evidence. For these reasons, we believe the ILRB’s finding that there

was no question of fact to be resolved was against the manifest weight of the evidence.

¶ 47   We acknowledge that, as noted earlier, the ILRB has authority to hear the testimony of

witnesses and make credibility determinations during the investigatory stage. See Michels, 2012

IL App (4th) 110612, ¶ 44. Here, however, no witnesses testified, neither party made allegations

that were inherently implausible, and the limited documentary evidence available was

inconclusive. Under these circumstances, there was nothing upon which a reasonable fact finder

could base a credibility determination, and in fact, the administrative decision did not include

any explicit credibility determinations. For these reasons, we believe it was arbitrary, and

therefore unreasonable, to accord more credence to the allegations of CMS than those of

AFSCME.

¶ 48   Finally, we acknowledge that AFSCME had the burden of demonstrating that there was

enough evidence to warrant a hearing on this issue. However, it is difficult to prove a negative.

Thus, expecting a union to be able to produce evidence of the nonexistence of an employer’s

policy not previously communicated to it without additional, more formal proceedings is

likewise unreasonable. For these reasons, we find that the ILRB abused its discretion in failing to

find that there is a question of fact to be resolved that warrants a hearing.


                                                  19
¶ 49   We next consider AFSCME’s argument that the policy acts as a threat to dissuade

employees from striking. AFSCME argues that the ILRB ignored recognized principles of law in

concluding that the policy was not coercive and dismissing the claim. We agree.

¶ 50   Under section 10(a)(1) of the Labor Relations Act, it is an unfair labor practice for an

employer “to interfere with, restrain[,] or coerce public employees in the exercise” of any right

protected under the Labor Relations Act, including the right to strike. 5 ILCS 315/10(a)(1) (West

2014). An employer’s message or conduct is “coercive” within the meaning of this provision if it

“ ‘reasonably tends to coerce employees in the exercise of their rights, regardless of whether it

does, in fact, coerce.’ ” Chicago Transit Authority v. Illinois Labor Relations Board, 386 Ill.

App. 3d 556, 572-73 (2008) (quoting National By-Products, Inc. v. National Labor Relations

Board, 931 F.2d 445, 451 (7th Cir. 1991)). The question is whether, in light of all of the

surrounding circumstances, employees could reasonably conclude that their employer is

threatening them with economic reprisal in the event of a strike. National Labor Relations Board

v. Brookwood Furniture, 701 F.2d 452, 459 (5th Cir. 1983).

¶ 51   Here, the ILRB found that the policy at issue might dissuade employees from engaging in

a strike. It found, however, that the policy was not coercive because it was similar to CMS’s

policy of not paying the salaries of striking employees during a strike, a policy which was not

challenged by AFSCME. This conclusion overlooks a crucial distinction between the two

policies—the policy concerning salaries is limited to the duration of the strike, while the policy

concerning health insurance premiums is not. This difference is significant because an employer

is not required to subsidize a strike. Thus, withholding wages and benefits during a strike

generally does not constitute an unfair labor practice. See In re General Electric Co., 80




                                               20
N.L.R.B. 510, 511 (1948). The issue in this case is the denial of a benefit before and after a

strike.

¶ 52      The National Labor Relations Board (NLRB) addressed a far more analogous situation in

In re Pride Ambulance Co., 356 N.L.R.B. 1023 (2011). There, an employer sent a notice to

striking employees, informing them that it would stop paying its share of their health insurance

premiums if they did not return to work. The notice further informed them that unless they

returned to work or purchased coverage under COBRA, they would be subject to “re-enrollment

requirements,” including a 90-day waiting period during which they would have no coverage. Id.

at 1024. The NLRB held that by threatening to impose the 90-day waiting period, the employer

violated section 8(a)(1) of the National Labor Relations Act (29 U.S.C. § 158(a)(1) (2006)).

Pride Ambulance, 356 N.L.R.B. at 1028. The NLRB noted that “decades of Board precedent”

supported its holding. Id. at 1026. In particular, it pointed to its prior decision in In re Cone

Brothers Contracting Co., 158 N.L.R.B. 186 (1966). There, the NLRB explained that “ ‘strike

activity does not entail acceptance after the strike of a smaller quantum of vested job rights and

privileges.’ ” (Emphasis omitted.) Pride Ambulance, 356 N.L.R.B. at 1027 (quoting Cone

Brothers Contracting, 158 N.L.R.B. at 188). It also looked to precedent in emphasizing that

imposing a waiting period for health insurance coverage on employees who return from a strike

“ ‘unjustly penalize[s] strikers’ ” for going on strike. Id. (quoting In re Ace Tank & Heater Co.,

167 N.L.R.B. 663, 664 (1967)). The NLRB thus concluded that withholding a benefit from

employees who return to work after a strike is unlawful and threatening to do so constitutes an

unfair labor practice under the federal counterpart of our section 10(a)(1). Id. at 1028.

¶ 53      Both CMS and the ILRB argue that Pride Ambulance and the cases cited therein are

distinguishable from the instant case. CMS argues that those cases are distinguishable because


                                                 21
they involve the denial of “accrued benefits.” See In re Texaco, Inc., 285 N.L.R.B. 241, 245-46

(1987) (explaining the requirement of proof that a benefit is accrued on the date on which it is

denied); but see Conoco, Inc. v. National Labor Relations Board, 740 F.2d 811, 814 n.2 (10th

Cir. 1984) (noting that “It is not altogether clear whether accrual versus non-accrual of a benefit

is the key to analyzing these cases.”). CMS explains that health insurance benefits for State

employees are not “accrued” because an employee is eligible for health insurance coverage the

day he or she begins working for the State and ceases to be eligible the day the employee stops

working for the State.

¶ 54   We reject the contention that this feature makes Pride Ambulance distinguishable for two

reasons. First, the test for whether a benefit is “accrued” is simply whether it is “due and

payable” at the time it is denied. Conoco, 740 F.2d at 815; Texaco, 285 N.L.R.B. at 245. Second,

as the NLRB explained in Pride Ambulance, the distinction between accrued and nonaccrued

benefits is relevant only where the employer is withholding a benefit or threatening to withhold

benefits during a strike. Pride Ambulance, 356 N.L.R.B. at 1027.

¶ 55   Similarly, the ILRB argues that these cases are distinguishable because the policies in

those cases were communicated in the context of ongoing labor disputes. We agree that this is a

relevant factor in determining whether employees would reasonably feel coerced. See

Brookwood Furniture, 701 F.2d at 460 (noting that statements found to be coercive were made

“in the context of ‘a vigorous *** antiunion campaign’ ”). We do not agree that this difference

constitutes a bright line rule, however. Such a holding would absolve employers of otherwise-

unlawful threats to withhold benefits from employees before or after a strike as long as they

announce the policy at a time when a strike is not imminent. Such a result is untenable.




                                                22
¶ 56   We acknowledge, however, that there are differences between the circumstances involved

in Pride Ambulance and those involved in this case. The consequences of the reenrollment

period at issue in Pride Ambulance were potentially dire. There, striking employees who

returned to work after the strike were without coverage for a three-month period. A serious

injury or illness during that period could have catastrophic consequences. Here, CMS would

continue to maintain employees’ insurance, but would bill them for the portion of the premiums

it normally pays. In addition, as we have just discussed, the policy here was not announced in the

midst of a labor dispute. All of these circumstances are relevant in assessing the coercive nature

of the policy. See Brookwood Furniture, 701 F.2d at 459. Here, however, the ILRB did not

assess the coercive tendency of the policy. Instead it found that announcing the policy could not

be construed as a threat because it was no different from informing employees that they would

not be paid during a strike. In short, the ILRB overlooked the distinction between informing

employees that a benefit will be lawfully withheld during a strike and threatening to unlawfully

withhold a benefit from employees before and after a strike. We find that by ignoring this

distinction, the ILRB ignored a recognized principle of law.

¶ 57   Finally, we consider the argument of CMS and the ILRB that CMS’s announcement of its

policy was protected as free speech under section 10(c) of the Labor Relations Act (5 ILCS

315/10(c) (West 2014)). That section provides that it is not an unfair labor practice for an

employer to express “any views, argument, or opinion” as long as “such expression contains no

threat of reprisal or force or promise of benefit.” Id. Typically, this provision and its federal

counterpart are implicated when an employer or one of its agents expresses an opinion about the

negative impacts the employer predicts might flow from unionization or a strike. See, e.g.,

National Labor Relations Board v. Gissel Packing Co., 395 U.S. 575, 616-19 (1969); National


                                               23
Labor Relations Board v. River Togs, Inc., 382 F.2d 198, 202 (2d Cir. 1967); Metropolitan

Alliance of Police, Chapter No. 357, 27 PERI ¶ 9 (ILRB State Panel 2011). Here, CMS did not

express any opinions. Rather, it announced its own policy, and AFSMCE has alleged that the

policy itself acts as a threat against going on strike. If AFSCME ultimately prevails on its claim,

section 10(c) will not provide a defense.

¶ 58   For the foregoing reasons, we grant CMS’s two motions to take judicial notice of other

proceedings, we deny CMS’s motion to remand this matter to the ILRB for another public vote

on its existing decision, we reverse the order of the ILRB dismissing the unfair labor charge

without a hearing, and we remand for further proceedings.

¶ 59   Reversed and remanded.




                                                24
                              2017 IL App (5th) 160046

                                 NO. 5-16-0046
                                    IN THE
                        APPELLATE COURT OF ILLINOIS
                               FIFTH DISTRICT
______________________________________________________________________________

AMERICAN FEDERATION OF STATE, COUNTY,           )     Petition for Review of
AND MUNICIPAL EMPLOYEES, COUNCIL 31,            )     an Order of the Illinois
                                                )     Labor Relations Board,
      Petitioner,                               )     State Panel.
                                                )
v.                                              )
                                                )
THE ILLINOIS LABOR RELATIONS BOARD and          )     No. S-CA-16-007
THE STATE OF ILLINOIS DEPARTMENT OF             )
CENTRAL MANAGEMENT SERVICES,                    )
                                                )
      Respondents.                              )
______________________________________________________________________________

Opinion Filed:          November 8, 2017
______________________________________________________________________________

Justices:          Honorable Melissa A. Chapman, J.

                  Honorable Richard P. Goldenhersh, J., and
                  Honorable Judy L. Cates, J.,
                  Concur
______________________________________________________________________________

Attorneys         Stephen A. Yokich, George A. Luscombe III, Dowd, Bloch, Bennett,
for               Cervone, Auerbach & Yokich, 8 South Michigan Avenue, 19th Floor,
Appellant         Chicago, IL 60603
______________________________________________________________________________

Attorneys         Jeffrey S. Fowler, Lawrence Jay Weiner, Special Assistant Attorneys
for               General, Laner Muchin, Ltd., 515 North State Street, Suite 2800,
Appellees         Chicago IL 60654 (attorneys for Illinois Department of Central
                  Management Services); Lisa Madigan, Attorney General, State of
                  Illinois, David L. Franklin, Solicitor General, Frank H. Bieszczat,
                  Assistant Attorney General, 100 West Randolph Street, 12th Floor,
                  Chicago, IL 60601 (attorneys for Illinois Labor Relations Board)
______________________________________________________________________________
