                                                                                 FILED
                                    2015 IL App (4th) 140557                   February 25, 2015
                                                                                  Carla Bender
                                NOS. 4-14-0557, 4-14-0635 cons.               4th District Appellate
                                                                                    Court, IL
                                 IN THE APPELLATE COURT

                                          OF ILLINOIS

                                      FOURTH DISTRICT

THE BOARD OF TRUSTEES OF THE UNIVERSITY ) Direct Appeal from
OF ILLINOIS,                            ) Illinois Educational Labor
             Petitioner,                ) Relations Board
             v.      (No. 4-14-0557)    ) No. 13RC0008S
THE ILLINOIS EDUCATIONAL LABOR          )
RELATIONS BOARD and THE UNI FACULTY     )
ORGANIZATION, IEA-NEA,                  )
             Respondents.               )
____________________________________ )
                                        ) No. 14RC0012S
THE BOARD OF TRUSTEES OF THE UNIVERSITY )
OF ILLINOIS,                            )
             Petitioner,                )
             v.      (No. 4-14-0635)    )
THE ILLINOIS EDUCATIONAL LABOR          )
RELATIONS BOARD; THE CAMPUS FACULTY     )
ASSOCIATION (CFA), AFT-IFT; and AAUP,
             Respondents.
____________________________________________________________

               PRESIDING JUSTICE POPE delivered the judgment of the court, with opinion.
               Justices Knecht and Appleton concurred in the judgment and opinion.

                                            OPINION

¶1             This consolidated appeal arises out of the request of petitioner the Board of

Trustees of the University of Illinois (University) for direct administrative review of two

decisions of respondent, the Illinois Educational Labor Relations Board (Board).

¶2             In case No. 4-14-0557, the University appeals the Board's certification of

respondents, the Uni Faculty Organization, the Illinois Education Association (IEA), and the
National Education Association (NEA) (collectively, the Union) as the exclusive collective-

bargaining representative for 34 high school teachers working at the University of Illinois

Laboratory High School (Uni High) (underlying case No. 13-RC-0008-S). The University

argues the Board erred in finding the Union presented clear and convincing evidence

demonstrating (1) the proposed unit would be appropriate under section 7 of the Illinois

Educational Labor Relations Act (Education Labor Act) (115 ILCS 5/7 (West 2012)), (2) special

circumstances and compelling justifications made it appropriate to recognize the proposed

bargaining unit, and (3) the proposed bargaining unit would not cause undue fragmentation or a

proliferation of bargaining units.

¶3             In case No. 4-14-0635, the University appeals the Board's certification of

respondents, the Campus Faculty Association (CFA), the American Federation of Teachers

Illinois (AFT), the Illinois Federation of Teachers (IFT), and the American Association of

University Professors (AAUP) (collectively, the Union) as the exclusive collective-bargaining

unit for approximately 470 nontenure-track faculty members who teach or conduct research at

the University (underlying case No. 14-RC-0012-S). The University argues because the

bargaining-unit certification in case No. 13-RC-0008-S was erroneous, the bargaining unit for

the nontenure-track faculty in case No. 14-RC-0012-S must be deemed inappropriate to the

extent it does not include (but should include) the Uni High teachers. We affirm.

¶4                                    I. BACKGROUND

¶5             On May 21, 2013, the Union filed a majority-interest petition, seeking to

represent "all full-time and regularly employed part-time teaching associates at [Uni High]"

(case No. 13-RC-0008-S (the Uni High case)). Uni High is a public laboratory high school and


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an educational unit of the University. The high school building and facilities are located on the

University's campus. Uni High is comprised of approximately 325 students in grades 8 through

12. Some of the students are as young as 11 years old because they have skipped grades. The

students, whose average American College Testing (ACT) scores exceed those of the

University's incoming freshmen, are considered exceptionally bright. In addition to their high

school studies, the students are permitted to take college courses at the University in their free

time. Uni High employs between 45 and 50 employees, including the 34 teaching associates at

issue in this case. Most of the Uni High teachers possess master's degrees and Ph.D.s.

¶6             The University objected to the Union's petition, arguing, inter alia, the proposed

bargaining unit was inappropriately narrow because the Uni High teaching associates were a

small subset of the University's nontenured faculty members and the petition did not seek to

include all nontenured faculty members. The University maintained the Uni High teachers were

no different than the other nontenured University faculty members and there was no reason to

place them into their own bargaining unit.

¶7             The Board's rules establish "presumptively appropriate" bargaining units at the

University's Urbana-Champaign campus. 13 Ill. Reg. 14969 (eff. Sept. 8, 1989). Those units are

presumed to be appropriate for purposes of collective bargaining within the meaning of section 7

of the Education Labor Act (115 ILCS 5/7 (West 2012)). See 80 Ill. Adm. Code 1135.20(a)

(2014). It is undisputed the petitioned-for bargaining unit of Uni High teachers was not one of

those presumptively appropriate units.

¶8             To represent employees who are not included in one of the presumptively

appropriate units, a labor organization must meet the requirements of section 1135.30 of the


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Board's rules. Section 1135.30 requires the labor organization to prove by clear and convincing

evidence the proposed bargaining unit (1) is otherwise appropriate within the meaning of section

7 of the Education Labor Act, (2) is warranted by special circumstances and compelling

justifications, and (3) will not result in undue fragmentation of the University's workforce. 80

Ill. Adm. Code 1135.30(a) (2004).

¶9             In December 2013, a two-day hearing was held before the Board's administrative

law judge (ALJ) on the Union's petition.

¶ 10           Jeffrey Walkington, the director of Uni High, testified for the University.

According to Walkington, a Uni High teaching associate's primary job duty is to teach. The full-

time teaching associates teach four classes per semester. Those four classes meet every day.

There is a fall and a spring semester each year. The State Board of Education requires students

to be supervised for 300 minutes per day. Walkington testified part-time teaching associates are

defined as teachers who teach fewer than four classes. Their pay is prorated by how many

classes they teach. Teachers are free to leave between classes and to leave for the day after their

last class. Teachers are assigned three- to four-week shifts of hallway duty during lunch to

supervise the students. These assignments are voluntary and compensated. Teachers are not

required to stay in the building during the school day when they are not teaching. Most teachers

have individual offices in the Uni High facility or in an adjacent building. Walkington testified

there are no strict rules regarding office hours.

¶ 11           Walkington testified Uni High's organizational structure is "divided into eight or

nine academic departments and guidance counseling and [it is] what you would expect, foreign

language, computer science, math, English, social studies, science, those types of things."


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Executive teachers function as department heads. Each department has one department head.

They are "largely responsible for [the] evaluation of their own teachers, bringing to the attention

of teachers professional development opportunities, [and] new teaching strategies." They also

control their own budgets. However, they do not have complete autonomy over developing

policies for their department. The executive teachers do not receive any additional pay. Instead,

they have a slightly reduced workload of three classes per semester. A teacher's other duties

could include "anything from" outreach to another school, participation in professional

organizations, and coaching, to research and publishing. Parent-teacher conferences are also

required.

¶ 12           Keith Marshall, the associate provost who oversees Director Walkington, testified

for the University. Marshall testified there are 1,100 nontenure-track faculty members at the

University. Their primary responsibility is teaching. Uni High employs 34 nontenure-track

teaching associates. Marshall testified, "a significant portion of [Uni High's] budget is from

general state aid, which is provided by the Illinois State Board of Education annually, based on a,

a formula that provides the per pupil allocation that, that applies to all high schools in the State

of Illinois, not just Uni High."

¶ 13           Karen McLaughlin, the assistant director of labor and employee relations for

academic human resources, testified for the University. McLaughlin testified Uni High teaching

associates are paid out of what are called "soft funds." As a result, they do not have any notice

rights regarding whether their appointments are going to be renewed for another year. Other

nontenured teaching faculty members at the University are paid from "hard funds" and are

entitled to notice as a result. McLaughlin testified Uni High teachers' pay is based on their


                                                 -5-
degree and number of years of experience. The minimum salary for a full-time academic

position is $30,074. The annual salary increases for Uni High teaching associates are merit

based, discretionary, and based on the University's campus-salary program set by the provost.

According to McLaughlin's testimony, the Uni High teachers' salaries matched the campus-

salary program for the past three years.

¶ 14           McLaughlin also testified Uni High teaching associates are subject to the same

academic handbook as other nontenured faculty members. They are subject to the same policies

and procedures as other nontenured faculty members. The Uni High teachers are eligible for the

same health insurance and workers' compensation benefits as the rest of the nontenured

workforce. Uni High teaching associates, like the other nontenure-track teachers, are not eligible

for tenure. Vacation, bereavement, and sick leave for teaching associates is the same as for other

nontenure-track employees. The Uni High faculty-advisory committee handles complaints and

provides a dispute-resolution procedure for Uni High teachers.

¶ 15           Suzanne Linder, a Uni High teaching associate for 16 years, testified for the

Union. In her experience, "teaching high school is radically different from teaching college,"

and the working conditions are not the same as for others teaching at the University. Uni High

students range from 11 to 18 years old. "[A]t the sub-freshman level [they have] some pretty

small immature kids who need a decent amount of hand holding." Linder teaches four classes a

day, has student contact outside the classroom, and supervises a peer-tutoring center. Linder

testified when she is not teaching she is usually in her office. In addition to parent-teacher

conferences, Linder sends weekly progress reports to some parents. She also regularly answers

e-mails from parents requesting information about grades and progress. Linder also testified,


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"[t]he University starts later and ends earlier than we do because they don't have the obligation

[Uni High does] to have 180 school days." While Linder is evaluated every three years due to

her experience, new teachers are observed and evaluated every year. Other than the Uni High

teachers, Linder does not have any interaction with other nontenure-track faculty within the

University. Linder testified Uni High teachers are not the same as people who are teaching at the

University. According to Linder:

               "[W]e have more school days. We have longer school days. We

               teach every day. We deal with 11 year olds. We have more

               contact with parents. We have more supervisor responsibilities.

               We are teaching a younger curriculum that requires a different kind

               of pedagogy. It's a different job teaching high school than it is

               teaching college."

¶ 16           Eugene Bild, a Uni High teacher since 1993, testified he teaches four classes a

day and usually sees two or more students outside of class each day. He testified he also writes

eight student progress reports a week. In addition to parent-teacher conferences, he meets with

parents "quite often." Bild testified, while classes are held from 8 a.m. to 4 p.m., as "any high

school teacher would tell you," the hours go "much beyond that." Bild testified he "often start[s]

work as early as 5:30 in the morning" and "can leave well after dark" and still bring work home.

Bild considers himself a high school teacher and not a University faculty member. According to

Bild, the teachers had been told by the Uni High director they were not faculty members and they

should not refer to themselves as such. Bild reports to the executive teacher of his department

and not to anyone outside Uni High.


                                                -7-
¶ 17           When asked whether Uni High teachers should have their own bargaining group,

Bild answered:

               "[I]f we were a part of a larger group of non-tenured track faculty,

               those interests of ours, those things that we need that are unique to

               Uni High and which are not basically concerns of the several

               thousand non-tenured track people would be subsumed. ***

               [T]here's roughly 33 of us [Uni High teachers] and if we were part

               of a larger group of, I think that there's more than a thousand, I'm

               thinking even 2,000 non-tenured track people, for us to try to get

               some of our concerns across or negotiated or made contractual,

               may be pretty difficult, if not impossible."

¶ 18           William Sutton, a Uni High teacher for 22 years, testified, "having taught at the

University, having been a student at the [U]niversity, having taught as a [teaching assistant] and

as a visiting assistant professor, having [become] intimately acquainted with the workings of the

[U]niversity," "what we do at Uni [High] is absolutely unique." While the students are bright,

"their social maturity is all over the map." Sutton has contact with parents on a regular basis,

which never happened when he taught at the University. While Sutton attends regular Uni High

faculty meetings, he does not attend any University faculty meetings. According to Sutton, "a

union that represents the Uni [High] teachers is absolutely essential. Otherwise *** the unique

issues that we have will be so diluted and if we're in an organization of people whose businesses

are just light years removed from ours, it'll be pointless for us."

¶ 19           Janet Morford, a Uni High teacher since 2006, teaches "sub-freshmen," or eighth-


                                                 -8-
graders, who range from 11 to 14 years old. Morford testified Uni High teachers stand in loco

parentis status to their students and are also mandated reporters of suspected abuse. Morford did

not recall a similar responsibility when teaching at the college level. A Uni High teacher cannot

cancel a class. Instead, the teacher must get a substitute from an approved list. Morford testified

she does not report to anyone outside Uni High. Morford believes, "the purpose of [a] union is

to defend the interest[s] of a group of people who have common working conditions. And our

working conditions at the University are so different from [the] working conditions of other

people on campus." According to Morford, so much of their everyday experience would not

make any sense to other nontenured faculty members. As a result, Morford opined, "our

interests would only be representative [sic] as a separate unit."

¶ 20           On February 14, 2014, the Board's ALJ issued her recommended decision and

order, finding the proposed unit was appropriate and recommending the Board certify the Union

as the exclusive bargaining representative for Uni High.

¶ 21           On March 6, 2014, the University filed its exceptions to the ALJ's decision,

arguing, inter alia, the ALJ erred in concluding the Union proved by clear and convincing

evidence the proposed bargaining unit was appropriate.

¶ 22           On May 14, 2014, the Union filed a second petition, seeking to represent "[a]ll

full time *** non-tenure-track faculty with respect to educational employees employed at the

[University]" (No. 14-RC-0012-S (the CFA case)).

¶ 23           On May 15, 2014, the Board issued an order affirming the ALJ's decision in the

Uni High case (No. 13-RC-0008-S) and directing certification of the bargaining unit.

¶ 24           On June 13, 2014, the University filed its petition for direct administrative review


                                                -9-
of the Board's decision of the Uni High case (No. 13-RC-0008-S). That case was docketed as

appellate court case No. 4-14-0557.

¶ 25           During the June 25, 2014, hearing on the Union's second petition in the CFA case

(No. 14-RC-0012-S), the University argued the petitioned-for bargaining unit was inappropriate

to the extent it excluded the Uni High teachers. The University maintained the ranks of the

nontenured teachers should not be fragmented in this manner. The Union argued the Board

lacked jurisdiction to consider including the Uni High teachers in the proposed unit because it

had already certified the Uni High bargaining unit in the Uni High case (No. 13-RC-0008-S).

¶ 26           In a July 2, 2014, order, the Board's ALJ declined to consider whether the Uni

High teachers should be included in the Union's proposed bargaining unit in the CFA case (No.

14-RC-0012-S) because the University had already appealed the Board's decision to certify the

bargaining unit in the Uni High case to this court.

¶ 27           On July 8, 2014, in the CFA case, the Board certified the Union as the exclusive

collective-bargaining representative for approximately 470 nontenure-track faculty members

teaching or researching at the University's Urbana-Champaign campus. The Uni High teachers

were excluded from this bargaining unit.

¶ 28           On July 11, 2014, the University filed its petition for direct administrative review

of the Board's decision in the CFA case (No. 14-RC-0012-S). That case was docketed as

appellate court case No. 4-14-0635.

¶ 29           On July 31, 2014, the University filed a motion to consolidate the two cases,

which we granted on August 12, 2014.

¶ 30           This appeal followed.


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¶ 31                                      II. ANALYSIS

¶ 32                          A. The Uni High Case (No. 4-14-0557)

¶ 33           On appeal, in case No. 4-14-0557, the University argues the Board erred in

finding clear and convincing evidence was presented to demonstrate the proposed bargaining

unit of Uni High teachers would (1) be appropriate under section 7 of the Education Labor Act,

(2) be appropriate given the special circumstances and compelling justifications involved, and

(3) not cause undue fragmentation or a proliferation of bargaining units.

¶ 34           Judicial review of an administrative agency action extends to all questions of law

and fact in the record. City of Freeport v. Illinois State Labor Relations Board, 135 Ill. 2d 499,

507, 554 N.E.2d 155, 159 (1990). An administrative agency's findings on questions of fact will

be reversed only if they are against the manifest weight of the evidence. Cinkus v. Village of

Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 210, 886 N.E.2d 1011, 1018

(2008). An agency's decision on a question of law is reviewed de novo. Cinkus, 228 Ill. 2d at

211, 886 N.E.2d at 1018. An agency's application of a rule of law to established facts is a mixed

question of fact and law that will not be reversed unless it is deemed clearly erroneous. Cinkus,

228 Ill. 2d at 211, 886 N.E.2d at 1018.

¶ 35           Here, the University does not challenge the Board's factual findings. Instead, the

University argues the Board erred in interpreting its regulations and applying those regulations to

the facts of this case. This inquiry presents a mixed question of law and fact. See Illinois

Council of Police v. Illinois Labor Relations Board, Local Panel, 404 Ill. App. 3d 589, 594, 936

N.E.2d 1212, 1217 (2010). As such, the clearly erroneous standard of review applies in this

case. The clearly erroneous standard of review is highly deferential to an agency's decision.


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AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 395, 763

N.E.2d 272, 281 (2001). A decision is clearly erroneous only if the reviewing court is left with a

" ' "definite and firm conviction that a mistake has been committed." ' " Cinkus, 228 Ill. 2d at

211, 886 N.E.2d at 1018 (quoting AFM Messenger Service, 198 Ill. 2d at 395, 763 N.E.2d at 282,

quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)).

¶ 36           As previously stated, the Board's regulations create presumptive bargaining units.

80 Ill. Adm. Code 1135.20 (2014). The parties agree the proposed Uni High bargaining unit was

not one of the presumptive units. The parties also agree the Board's regulations allow for the

certification of a nonpresumptive bargaining unit if the petitioner can show by clear and

convincing evidence (1) the unit is otherwise appropriate under section 7 of the Education Labor

Act, (2) special circumstances and compelling justifications make it appropriate for the Board to

recognize a nonpresumptive unit, and (3) establishing the proposed unit will not cause undue

fragmentation or proliferation of bargaining units. 80 Ill. Adm. Code 1135.30 (2004). "Clear

and convincing evidence" means evidence greater than a preponderance of the evidence but not

quite as high as the evidence necessary for a criminal conviction. Bazydlo v. Volant, 164 Ill. 2d

207, 213, 647 N.E.2d 273, 276 (1995).

¶ 37           The Union argues the Board's decision to certify the Uni High bargaining unit was

not clearly erroneous. In doing so, however, it additionally contends "section 1135.30 of the

Illinois Administrative Code violates the Equal Protection Clause of the Constitution of the State

of Illinois by subjecting similarly situated university employees to different rules when

exercising their rights under the [Education Labor Act]." The Union specifically takes issue with

its burden of having to demonstrate clear and convincing evidence before the Board.


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¶ 38           However, the Union prevailed and did not file a cross-appeal as required by Rule

303(a)(3). See Ill. S. Ct. R. 303(a)(3) (eff. May 30, 2008). "Appellees may not argue alleged

errors unless they timely file a cross-appeal." Martis v. Grinnell Mutual Reinsurance Co., 388

Ill. App. 3d 1017, 1024, 905 N.E.2d 920, 927 (2009). "When an appellee does not file a cross-

appeal, the reviewing court is confined to the issues presented by the appellant." Martis, 388 Ill.

App. 3d at 1024, 905 N.E.2d at 927. As a result, we do not address the Union's argument.

¶ 39                         1. Appropriateness Under Section 7(a)

¶ 40           The first factor in the Board's regulations for determining whether a proposed

nonpresumptive bargaining unit should be certified is whether the unit is "otherwise appropriate"

under section 7(a) of the Education Labor Act. 80 Ill. Adm. Code 1135.30(a)(1) (2004). Section

7(a) requires only that the bargaining unit be appropriate and does not require a petitioned-for

unit be the most appropriate unit. Black Hawk College Professional Technical Unit v. Illinois

Educational Labor Relations Board, 275 Ill. App. 3d 189, 196, 655 N.E.2d 1054, 1059 (1995);

Sandburg Faculty Ass'n v. Illinois Educational Labor Relations Board, 248 Ill. App. 3d 1028,

1036, 618 N.E.2d 989, 995 (1993) (Education Labor Act "does not require that a proposed

[bargaining] unit be the 'most appropriate unit'; rather, it designates that the unit be

'appropriate' "). "A proposed unit should be certified if it meets the applicable standards in the

[Education Labor] Act, even though a separate unit of classified employees would also be an

appropriate unit." Sandburg Faculty Ass'n, 248 Ill. App. 3d at 1039, 618 N.E.2d at 997.

"However, a bargaining unit will not be appropriate if, under all of the circumstances, it is

artificial or arbitrary." SEDOL Teachers Union v. Illinois Educational Labor Relations Board,

276 Ill. App. 3d 872, 883, 658 N.E.2d 1364, 1371 (1995).


                                                - 13 -
¶ 41           Section 7(a) sets forth several factors for the Board to consider in determining

whether a proposed bargaining unit is appropriate. 115 ILCS 5/7(a) (West 2012). Specifically,

section 7(a) provides, in relevant part, the following:

               "In determining the appropriateness of a unit, the Board shall

               decide in each case, in order to ensure employees the fullest

               freedom in exercising the rights guaranteed by this Act, the unit

               appropriate for the purpose of collective bargaining, based upon

               but not limited to such factors as historical pattern of recognition,

               community of interest, including employee skills and functions,

               degree of functional integration, interchangeability and contact

               among employees, common supervision, wages, hours and other

               working conditions of the employees involved, and the desires of

               the employees." 115 ILCS 5/7(a) (West 2012).

Pursuant to the clear language of section 7(a), the Board is required to make its determination on

a case-by-case basis. 115 ILCS 5/7(a) (West 2012) ("the Board shall decide in each case").

¶ 42           In this case, the proposed unit is neither arbitrary nor artificial. The unit is

comprised of 34 Uni High teaching associates who share "a substantial community of interest

with each other." The evidence presented supports the Board's finding.

¶ 43           The Uni High teachers all share the same skills and functions, i.e., they all teach

high school students. They all work in the same building and have frequent contact with both

students and their parents outside of the classroom. They also report to their department heads at

Uni High and not to anyone at the University. They are interchangeable in the sense they cover


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classes for one another and share student-supervision duties throughout the year. The Uni High

teachers do not share these factors with the rest of the nontenured teachers at the University. For

example, the University's other faculty members do not teach high school, have a shorter school

year, and do not teach every day. Further, it is undisputed a majority of Uni High teachers favor

representation by the proposed bargaining unit. "The desires of the employees are an important

consideration because the goal in determining the appropriateness of a bargaining unit is to

ensure employees the fullest freedom in exercising the rights guaranteed by the [Education

Labor] Act for the purpose of collective bargaining." Black Hawk College Professional

Technical Unit, 275 Ill. App. 3d at 198-99, 655 N.E.2d at 1060. This factor supports the Board's

conclusion. We cannot say the Board's determination the proposed bargaining unit was

otherwise appropriate under section 7 was clearly erroneous.

¶ 44                    2. Special Circumstances and Compelling Justifications

¶ 45           The second factor for determining whether a proposed nonpresumptive bargaining

unit should be certified is whether "special circumstances and compelling justifications" existed

to recognize the proposed bargaining unit. 80 Ill. Adm. Code 1135.30(a)(2) (2004).

¶ 46           The Education Labor Act does not define "special circumstances and compelling

justifications." However, the Board has explained, "[r]ather than attempt to provide an all-

encompassing definition, we prefer to define this phrase on a case-by-case basis. This phrase

was intentionally drafted in broad terms to enhance its utility, since we cannot predict all future

unit descriptions and situations that may be presented by petitions." University of Illinois at

Chicago, 6 PERI ¶ 1126 (IELRB 1990).

¶ 47           In this case, the Board found the following:


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                      "There is also clear and convincing evidence of special

              circumstances and compelling justifications that make it

              appropriate for the [Board] to establish a bargaining unit different

              from the presumptively appropriate bargaining units. [Uni High] is

              a public high school which is separate and distinct from [the

              University's] other functions, as is reflected in the fact that [Uni

              High] is primarily funded like a public high school, instead of

              being funded in the same manner as the rest of [the University].

              [Uni High] operates under a high school calendar and high school

              daily hours. [Uni High] teaching associates provide a high school

              education, rather than the higher education provided by other

              [University] employees who are classified as nontenure-track

              faculty. *** [I]t is the function of [Uni High] teaching associates

              as high school teachers, rather than their technical classification as

              nontenure-track faculty, that is determinative. This difference in

              function, as well as the distinctive nature of [Uni High], is a special

              circumstance and compelling justification warranting placement of

              [Uni High] teaching associates in a bargaining unit that does not

              include other employees who are classified as nontenure-track

              faculty."

¶ 48          The record in this case supports the Board's findings. It is clear Uni High is a

separate and distinct entity. Uni High teachers have unique conditions of employment and


                                               - 16 -
perform distinctly different job duties from those of the University's other nontenure-track

teaching faculty. As a result, their interests are distinct from those of other University faculty

members. This fact presents a compelling need for their own separate bargaining unit to

represent their separate and unique interests. The Board's determination regarding the second

factor was not clearly erroneous.

¶ 49            The University infers the Board erred when it stated no other petitions seeking to

represent the Uni High teachers were pending at the time of its March 15, 2014, decision. While

the Union filed a petition on March 14, 2014, seeking to represent "[a]ll full time *** non-tenure

track faculty with respect to educational employees employed at the [University]," the Union has

stated on appeal it did not seek to represent the Uni High teachers in its second petition, as the

Board's ALJ had already issued her recommended decision finding the proposed bargaining unit

for the Uni High teachers was appropriate. The Board issued its decision the day after the Union

filed its second petition.

¶ 50            Regardless, the Board stated the absence of another petition was not sufficient to

demonstrate special circumstances and compelling justifications. Thus, the Board's belief there

were no other pending petitions seeking to represent nontenure-track faculty was only a factor

toward establishing the special-circumstances-and-compelling-justification requirement, not the

deciding factor. Accordingly, the Board's statement, while not technically correct at the time it

was made, is not fatal to the Board's overall conclusion with regard to this factor.

¶ 51            The University also argues the Board's conclusion with regard to this factor is

contrary to precedent set in other Board decisions. The University contends the Board is

required to follow its own precedent. While administrative agencies are bound to follow their


                                                - 17 -
own administrative rules, they are not absolutely bound by their prior rulings. Springwood

Associates v. Health Facilities Planning Board, 269 Ill. App. 3d 944, 948, 646 N.E.2d 1374,

1376 (1995); Citizens Utilities Co. of Illinois v. Illinois Commerce Comm'n, 153 Ill. App. 3d 28,

32, 504 N.E.2d 1367, 1370 (1987) (agency may make adjustments to its precedents "if the

adjustments are not arbitrary or capricious").

¶ 52           Here, the University emphasizes the significance of the Board's decision in a case

involving the University's McKinley Health Center. See Board of Trustees of the University of

Illinois, 2 PERI ¶ 1115 (IELRB 1986) (reversed by an unpublished decision of the IELRB in

1990). However, in finding a proposed bargaining unit proved appropriate under section 7(a) by

clear and convincing evidence, the Board is required to make its determination on a case-by-case

basis as provided by section 7(a) (115 ILCS 5/7(a) (West 2012)). Thus, prior cases are not

dispositive of this case. Moreover, Board of Trustees is distinguishable from the instant matter.

¶ 53           In Board of Trustees, the Board declined to certify a proposed bargaining unit for

a group of approximately 18 staff physicians who belonged to a larger group of 1,000 academic

professionals at the University. In her recommended decision, the ALJ found the proposed

bargaining appropriate. While the petition was still pending before the Board, the rules

establishing "presumptively appropriate" bargaining units found in section 1135.20(a) were

adopted. The Board issued an order to show cause why the petition should not be dismissed in

light of the section 1135.30 requirement to demonstrate special circumstances and compelling

justifications. Board of Trustees, 2 PERI ¶ 1115.

¶ 54           The petitioner did not respond and the petition was dismissed as not in conformity

with the presumptively appropriate bargaining units and no evidence was presented to justify


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deviation from those bargaining units. Board of Trustees, 2 PERI ¶ 1115. Thus, no specific

finding was ever made by the Board the proposed bargaining unit was inappropriately narrow.

As such, Board of Trustees affords no precedential value in this case. Here, the Board correctly

noted, in addressing the Board of Trustees decision, it could not "draw any conclusion as to what

the [Board] would have decided" because the petitioner in that case in did not respond to the rule

to show cause.

¶ 55                                  3. Undue Fragmentation

¶ 56             The final section 1135.30(a) factor for consideration is whether recognition of the

proposed nonpresumptive bargaining unit would cause undue fragmentation or a proliferation of

bargaining units. According to the Board's regulations, undue fragmentation and proliferation of

bargaining units:

                 "means that the number of bargaining units is such as to threaten to

                 interrupt services, cause labor instability, and cause continual

                 collective bargaining and a multitude of representation

                 proceedings." 80 Ill. Adm. Code 1135.30(a)(3) (2004).

¶ 57             In this case, the Board found "[b]ecause [Uni High] is a public high school which

functions separately from [the University's] other operations, certification of a bargaining unit

limited to [Uni High's] teaching associates will not threaten to interrupt [the University's] other

services or cause labor instabilities." The Board concluded, "Any labor dispute would

physically and otherwise be limited to [Uni High]."

¶ 58             The University argues the Board erred because certification of the Uni High

teachers will cause fragmentation of the University's workforce and labor instability throughout


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the University. However, the University's contention certification of the Uni High bargaining

unit would lead the University's other departments, "like Physics, English, Mathematics[,] or

Astronomy," to petition for their own separate bargaining units is speculative at best. This

speculation is insufficient to conclude the Board's finding was clearly erroneous. Moreover, the

differences between the Uni High teachers and the rest of the University's nontenure-track

teaching faculty members are more apparent in this record than are those among the nontenure-

track teaching faculty comprising the University's other departments.

¶ 59           The evidence presented also demonstrates Uni High operates as its own entity,

separate and away from the University's other operations. Thus, certification of the 34 Uni High

teachers into their own bargaining unit would not likely cause such labor instability as to disrupt

the rest of the University's other services in the event of a dispute. As a result, we are

unpersuaded by the University's argument in this regard. The Board's determination as to the

third factor was not clearly erroneous.

¶ 60           In sum, the Board's decision clear and convincing evidence of each of the above

discussed factors was presented to support recognition of the nonpresumptive bargaining unit of

Uni High teachers was not clearly erroneous, i.e., we are not left with a definite and firm

conviction the Board erred.

¶ 61                              B. The CFA Case (No. 4-14-0635)

¶ 62           The University's argument in appeal No. 4-14-0635 is predicated on our finding

the Board erred in certifying the Uni High bargaining unit in appeal No. 4-14-0557. Specifically,

the University contends because the bargaining unit certification in the Uni High case was

erroneous, the bargaining unit for the nontenure-track faculty in the CFA case must "be deemed


                                                - 20 -
inappropriate" to the extent it does not include the Uni High teachers. Because we have found in

appeal No. 4-14-0557 the Board did not err in certifying Uni High's bargaining unit, the

University's arguments in appeal No. 4-14-0635 must necessarily fail. See Sandburg Faculty

Ass'n, 248 Ill. App. 3d at 1039, 618 N.E.2d at 997 (once an appropriate unit is established under

section 7(a), any other units that may or might be appropriate are irrelevant).

¶ 63                                 III. CONCLUSION

¶ 64           For the reasons stated, we affirm the Board's judgment in case Nos. 4-14-0557

and 4-14-0635.

¶ 65           No. 4-14-0557, Affirmed.

¶ 66           No. 4-14-0635, Affirmed.




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