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                                   Appellate Court                            Date: 2018.02.09
                                                                              12:13:47 -06'00'




    American Federation of State, County, & Municipal Employees, Council 31 v. Illinois
              Labor Relations Board, State Panel, 2017 IL App (5th) 160229



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



District & No.         Fifth District
                       Docket No. 5-16-0229



Filed                  November 6, 2017



Decision Under         Petition for review of order of Illinois Labor Relations Board, State
Review                 Panel, No. S-CA-16-006.



Judgment               Motions to take judicial notice granted; motion for remand denied;
                       administrative decision reversed; cause remanded for further
                       proceedings.


Counsel on             Stephen A. Yokich and Josiah A. Groff, of Dowd, Bloch, Bennett,
Appeal                 Cervone, Auerbach & Tokich, of Chicago, for petitioner.

                       Lisa Madigan, Attorney General, of Chicago (David L. Franklin,
                       Solicitor General, and Frank H. Bieszczat, Assistant Attorney
                       General, of counsel), for respondent Illinois Labor Relations Board,
                       State Panel.
                              Thomas S. Bradley, Jeffrey S. Fowler, and Lawrence J. Weiner,
                              Special Assistant Attorneys General, of Chicago, for other respondent.



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


                                               OPINION

¶1         The American Federation of State, County, and Municipal Employees, Council 31
       (AFSCME), and the State of Illinois Department of Central Management Services (CMS) have
       a lengthy collective bargaining relationship. Their most recent collective bargaining agreement
       (CBA), like all their previous agreements, contained provisions for employees to receive
       various types of increases in salary, including “step increases.” Shortly before the CBA was set
       to expire, CMS announced that it would stop paying step increases after the CBA expired and
       in fact did so. AFSCME filed an unfair labor charge, alleging that CMS’s refusal to continue
       paying the increases constituted an unfair labor practice because it altered a term of
       employment and therefore failed to preserve the status quo between the parties during contract
       negotiations. The Illinois Labor Relations Board (ILRB or Board) dismissed the charge,
       finding that the status quo between the parties included payment of step increases only upon
       agreement of the parties. AFSCME filed a petition for review with this court, arguing that this
       finding was clearly erroneous. Both CMS and the ILRB argue that the decision was not clearly
       erroneous. CMS also argues that we may affirm the Board’s decision for two additional
       reasons. It argues that the CBA was void under section 21.5 of the Illinois Public Labor
       Relations Act (Labor Relations Act) (5 ILCS 315/21.5 (West 2014)) and, as such, the statute
       negates any obligation to pay step increases. CMS also argues that any obligation to pay salary
       increases absent a legislative appropriation of funds to pay them is void under the Illinois
       Supreme Court’s recent decision in State v. American Federation of State, County &
       Municipal Employees, Council 31, 2016 IL 118422 (State/CMS).
¶2         While this matter was pending, CMS filed motions asking this court to take judicial notice
       of unrelated proceedings involving the same parties. In those matters, all of which involved a
       single decision of the ILRB, AFSCME argued that the decision was not final and reviewable
       because the procedures followed by the ILRB did not comport with the Open Meetings Act (or
       Act) (5 ILCS 120/1 et seq. (West 2014)), a position CMS contends is inconsistent with
       AFSCME’s invocation of our jurisdiction in this case. CMS filed an additional motion asking
       us 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, the question of jurisdiction is implicated by these motions, and we must therefore
       address it. We find that we have jurisdiction, we grant CMS’s motions to take judicial notice,
       we deny CMS’s motion to remand, and we reverse the decision of the ILRB.


                                                  -2-
¶3        AFSCME and CMS have a lengthy history of collective bargaining dating back to the
     1970s. Their most recent CBA was in effect from July 1, 2012, to June 30, 2015. The
     agreement includes provisions for various types of salary increases. Article 19, section 9, of the
     CBA provides for semiautomatic in-series promotions to fill vacancies. Article 32, section 4,
     provides that each employee must receive an increase to the next step within his or her pay
     grade “upon satisfactory completion of twelve months creditable service.” Article 32, section
     6(c), provides for “longevity pay increases” for employees who reach the top step and have 10
     or more years of creditable service.
¶4        The parties began negotiating a successor agreement in February 2015 but did not come to
     an agreement before the CBA expired. On June 16, two weeks before the agreement was set to
     expire, CMS announced that it was proposing freezing or eliminating step increases, longevity
     increases, and the semiautomatic promotions in the new CBA and that it would not pay these
     increases during negotiations.
¶5        The parties entered into the first of three tolling agreements on June 27, 2015. In pertinent
     part, the tolling agreement provided that “The Parties disagree with respect to the Employer’s
     obligation to continue step increases and semi-automatic promotion increases. The Agreement
     does not prejudice either Party’s position on that issue.” The agreement further provided that
     neither party waived any of its legal or contractual rights unless explicitly provided in the
     tolling agreement. The parties entered into two subsequent tolling agreements on July 29 and
     September 9, 2015, each of which contained language identical to the pertinent language in the
     first tolling agreement. (We note that CMS eventually withdrew its proposals to freeze or
     eliminate both longevity increases and semiautomatic promotions. Thus, only the step
     increases are at issue in this appeal.)
¶6        On July 1, 2015, CMS stopped paying step increases. On July 27, AFSCME filed an unfair
     labor charge, alleging that this constituted an unfair labor practice because it did not preserve
     the status quo between the parties during negotiations. On October 16, the Board issued a
     complaint for hearing. On November 6, it issued an amended complaint, which alleged as
     follows: On July 1, 2015, CMS stopped granting and paying step increases during contract
     negotiations without an agreement from the union. The parties had not reached an impasse.
     The complaint alleged that this violated section 10(a)(4) of the Labor Relations Act (5 ILCS
     315/10(a)(4) (West 2014)) because it was a unilateral change that did not maintain the status
     quo.
¶7        The matter was assigned to administrative law judge (ALJ) Sarah R. Kerley. She held a
     hearing in December 2015 and issued her recommended decision and order on February 3,
     2016. Kerley’s recommended decision contained detailed findings of fact. She found that
     AFSCME began representing two of the eight bargaining units involved in this dispute in 1974
     and eventually expanded its representation to include all eight. She found that the parties
     agreed to step increases in every CBA they entered into, although the specific parameters of
     those increases changed over the years. The step increases and longevity increases go into
     effect on the anniversary dates of the individual employees receiving them.
¶8        Kerley found that the parties were nearly always able to complete negotiations for a new
     CBA before the expiration of their previous agreement. Prior to the negotiations at issue in this
     case, negotiations continued past the expiration date of their CBA only three times. The first
     time was in 1983. That year, the parties signed a tolling agreement in which they agreed that
     the step increases would be frozen temporarily. The CBA they ultimately signed required that

                                                 -3-
       step increases be paid retroactively to the employees who did not receive them during the
       freeze.1
¶9         The second time the parties did not agree to a new contract before their old contract expired
       was in 2008. That time, they executed a tolling agreement which provided that all terms of the
       previous CBA would remain in effect, including the step increases.
¶ 10       The third time negotiations ran past the expiration date of the previous CBA was in 2012.
       Kerley found that during this period the parties could not agree concerning the interim
       handling of the step increases and longevity increases. They signed two tolling agreements,
       each of which expressly noted the parties’ disagreement over the increases. CMS refused to
       sign a third tolling agreement but notified the union that it would continue to honor all terms of
       the expired CBA except payment of the step increases and longevity increases. Kerley found
       that CMS continued to pay the salary increases associated with semiautomatic promotions
       throughout the hiatus between CBAs, but it did not pay the step increases or longevity
       increases. She noted that AFSCME filed two grievances and an unfair labor charge
       challenging this practice. However, the parties settled the grievances, and AFSCME withdrew
       the unfair labor charge in August 2013 while it was still in the investigatory stage. The parties’
       2012-15 agreement provided for retroactive payment of the step increases and longevity
       increases. The parties also stipulated that CMS paid the step increases throughout the first six
       months of 2015.
¶ 11       Kerley next considered the current negotiations. She found that CMS began processing and
       paying the longevity increases and semiautomatic promotions after withdrawing its proposals
       to eliminate them. She found, however, that CMS had not paid the step increases since July 1,
       2015. The parties stipulated that they had not reached an impasse.
¶ 12       In her analysis, Kerley first considered the applicability of section 21.5 of the Labor
       Relations Act. That statute provides that (1) a CBA between a public employer and a labor
       organization may not expire after June 30 of the year in which the terms of the Governor and
       other executive branch officers begin (5 ILCS 315/21.5(a) (West 2014)) and (2) a CBA may
       not require any salary increases in the period between the date on which the Governor and
       other executive branch officers take office and the date on which the contract terminates (5
       ILCS 315/21.5(b) (West 2014)). Kerley noted that the parties’ most recent CBA violated the
       second prohibition because it required longevity and step increases to go into effect on the
       anniversary dates of employees with anniversary dates between January 12, 2015, the day the

           1
            We note that AFSCME argues that the ALJ “misstated” some of the facts surrounding the 1983
       contract hiatus. AFSCME asserts that, by 1983, it represented five bargaining units. One of those
       bargaining units, however, was decertified before the CBA expired on June 30, 1983, because the unit
       improperly included both professional and nonprofessional employees. The situation was ultimately
       remedied by creating two separate bargaining units. By 1984, AFSCME represented all eight
       bargaining units, including those two units. During the period in which the employees in the decertified
       bargaining unit were not represented by AFSCME, CMS continued to honor the requirements of the
       CBA, including the payment of step increases. This included the period during which CMS and the
       remaining bargaining units were between contracts. Thus, AFSCME asserts, at least some of the
       employees received step increases during this period without an agreement. AFSCME also argues that
       the ALJ erred in failing to find that the state’s pay plan called for employees to receive step increases
       even before AFSCME began representing any of the bargaining units in 1974. We need not resolve
       these arguments because they would not alter our decision.

                                                       -4-
       new Governor took office, and June 30, 2015. She therefore found that the CBA was rendered
       null and void pursuant to subsection (c). 5 ILCS 315/21.5(c) (West 2014). However, Kerley
       also found that the obligation to maintain the status quo exists independent of the CBA. She
       thus rejected CMS’s argument that section 21.5 relieved it of any obligation it might have to
       pay the step increases in order to maintain the status quo.
¶ 13       Kerley concluded, however, that the status quo between the parties did not include
       payment of the step increases during hiatuses between contracts. She first noted that the status
       quo is not determined by the provisions in the most recent CBA in all cases. Kerley then
       examined all four hiatuses between contracts—including the period at issue after expiration of
       the 2012-15 contract. She pointed out that CMS did not pay the step increases during three of
       the four periods. She acknowledged that the step increases were paid after the parties’ CBA
       expired in 2008; however, she emphasized that the parties agreed that they would be paid.
       Thus, she reasoned, the step increases had never been paid without an agreement that they
       would be paid.
¶ 14       Kerley further found that the hiatus between the expiration of the 2008-12 agreement and
       the eventual signing of their 2012-15 agreement was the “most factually similar” time period
       to the instant case. Emphasizing that the step increases were not paid during that period, she
       further found that nothing had changed since 2012 “that would cause employees to reasonably
       expect anything different to happen in 2015 than what occurred in 2012.” Kerley concluded
       that the status quo did not include payment of the step increases “absent an agreement to do
       so.” She thus recommended dismissal of the unfair labor charge.
¶ 15       On March 16, 2016, AFSCME filed exceptions to the ALJ’s decision with the ILRB.
       AFSCME argued that the ALJ erred in failing to consider or give any weight to various factors,
       including the following: (1) the fact that the 2008 tolling agreement included step increases, (2)
       the fact that the nonpayment of step increases after the 2008-12 CBA expired was the subject
       of two grievances, which were settled, and (3) the parties’ 40-year history of including step
       increases in their agreements. AFSCME also argued that she erred in failing to find that
       employees in the bargaining units were paid step increases pursuant to the state’s pay plan even
       before unionization. On March 31, CMS filed cross-exceptions challenging Kerley’s
       interpretation of section 21.5.
¶ 16       On May 10, 2016, the State Panel of the ILRB voted to affirm the recommended decision
       of the ALJ. The vote took place at a public meeting. On May 26, the Board issued its written
       decision. The decision sets forth the procedural history of the case. It then states, “After
       reviewing the record, exceptions, cross-exceptions[,] and responses, we hereby affirm the
       Recommended Decision and Order, as written, for the reasons set forth by the Administrative
       Law Judge.” AFSCME filed a petition for review with this court on June 3, 2016. See 5 ILCS
       315/11(e) (West 2014).
¶ 17       On December 6, 2016, 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 civil action 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 procedures in this case that it followed there,

                                                   -5-
       AFSCME’s position in those proceedings is inconsistent with its invocation of our jurisdiction
       in this case.
¶ 18       On December 21, 2016, CMS filed a motion asking us to remand this matter to the ILRB
       without considering the merits. CMS took no position on the Open Meetings Act argument
       raised by AFSCME in the other proceedings, but it 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.
¶ 19       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 CMS’s 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. 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.
¶ 20       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.
¶ 21       As we mentioned earlier, all three proceedings involved one decision of the ILRB. There,
       each party filed an unfair labor charge against the other party. The two charges were
       consolidated for a hearing. The ALJ who presided issued a lengthy recommended decision and
       order. Both parties filed exceptions to different portions of the decision. 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.
¶ 22       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 for a written
       decision of the ILRB to be final and reviewable, 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.
¶ 23       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.

                                                   -6-
¶ 24       Before we turn to the question of jurisdiction, we believe that a brief explanation of the
       rationale underlying AFSCME’s Open Meetings Act argument would 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 Act. See 5 ILCS 120/1.02 (West 2014). The
       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 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).
¶ 25       Here, the ILRB held a public meeting to consider the parties’ exceptions to ALJ Kerley’s
       recommended decision and order. The Board voted at that meeting to adopt her decision in its
       entirety. However, Board members signed the written decision a few days later at a closed
       meeting. As noted earlier, that decision sets forth the procedural history of the case and states
       that the ILRB affirms the ALJ’s decision “as written, for the reasons set forth by the
       Administrative Law Judge.” (Emphasis added.) The ILRB’s written decision 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 also
       included a recitation of which findings it was adopting.
¶ 26       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 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 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.
¶ 27       As stated previously, AFSCME argued in the Fourth District that the ILRB ruling at issue
       there was not a valid final administrative decision under Baldermann and Howe, thereby
       depriving the appellate court of jurisdiction to consider the CMS’s appeal. Accepting this
       argument and applying it to this case would mean that we do not have jurisdiction over this
       case either.
¶ 28       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 Act’s requirements, the ILRB’s decision in this case was a final
       administrative decision, and it was not inherently null and void.
¶ 29       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

                                                   -7-
       petition in court alleging that a public body has not complied with the requirements of the 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 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).
¶ 30       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,”
       which will not 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).
¶ 31       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 both 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 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.
¶ 32       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 written decision of the ILRB is a final administrative decision,
       which we have jurisdiction to review.
¶ 33       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(a) (West 2014). However, CMS 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 2016). Under this provision, CMS contends any
       union member or member of the public who was not previously aware of the decision may file

                                                   -8-
       a request for review until May 26, 2018. CMS further contends that if such a request is
       successful, the Attorney General could nullify the ILRB’s May 2016 decision, which would
       make our decision in this case moot. We are not persuaded.
¶ 34        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
       decision null and void will be imposed. Each of these possibilities is highly speculative. We
       decline to remand this matter to the ILRB without considering the merits based on these
       speculative possibilities. We therefore deny the motion and turn to the merits of this appeal.
¶ 35        Judicial review of ILRB decisions is governed by the Administrative Review Law (735
       ILCS 5/3-101 et seq. (West 2014)). County of Cook v. Licensed Practical Nurses Ass’n of
       Illinois, Division I, 284 Ill. App. 3d 145, 152 (1996). The scope of our review includes all
       questions of fact and law presented by the record. Id. The standard of review we employ
       depends on whether each issue presents a question of fact, a question of law, or a mixed
       question of fact and law. Marconi v. Chicago Heights Police Pension Board, 225 Ill. 2d 497,
       532 (2006). The ILRB’s findings of fact are considered prima facie true and correct, and we
       will not set aside purely factual determinations unless they are against the manifest weight of
       the evidence. County of Cook, 284 Ill. App. 3d at 152. We review purely legal issues—such as
       statutory construction—de novo. However, we recognize that the ILRB’s interpretation of the
       statutes it administers “flows from its experience.” Id. We therefore give deference to the
       ILRB’s interpretation of those statutes. Id. We review mixed questions of fact and law under
       the “clearly erroneous” standard. Marconi, 225 Ill. 2d at 532. Under this standard, we reverse
       the ILRB’s decision if our review of the entire record leaves us with “a definite and firm
       conviction” that the Board made a mistake. Thornton Fractional High School District No. 215
       v. Illinois Educational Labor Relations Board, 404 Ill. App. 3d 757, 763 (2010).
¶ 36        This appeal calls for us to resolve three issues: (1) whether the ILRB correctly found that
       CMS did not alter the status quo during contract negotiations, (2) the effect of section 21.5 of
       the Labor Relations Act (5 ILCS 315/21.5 (West 2014)) on CMS’s obligation to pay step
       increases, and (3) the effect of the supreme court’s decision in State/CMS on CMS’s obligation
       to pay the step increases. AFSCME contends that the ILRB’s conclusion concerning the status
       quo was clearly erroneous and that neither section 21.5 nor State/CMS negates CMS’s
       obligation to pay the step increases. We agree.
¶ 37        We first consider the Board’s findings concerning the status quo. Under the Labor
       Relations Act, public employers and the unions representing their employees are required to
       bargain collectively over the terms and conditions of employment. 5 ILCS 315/7 (West 2014).
       The refusal of either party to bargain in good faith is an unfair labor practice. 5 ILCS
       315/10(a)(4), (b)(4) (West 2014).
¶ 38        Courts have held that an employer violates the requirement of bargaining in good faith if it
       unilaterally alters any of the “prevailing terms and condition of employment” while the parties
       are negotiating the terms of a CBA. 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)). Such changes are prohibited because they
       frustrate the “ ‘objective of establishing working conditions through [collective] bargaining.’ ”
       Id. at 507 (quoting Katz, 369 U.S. at 744). The goal is to maintain the status quo until the
       parties agree to new terms and conditions of employment through the collective bargaining

                                                   -9-
       process. For this reason, an employer may not make unilateral changes unless and until the
       parties reach an impasse. Id.
¶ 39       Whether an employer has committed an unfair labor practice by unilaterally altering the
       status quo is a mixed question of fact and law. Therefore, we will apply the clearly erroneous
       standard of review. Thornton Fractional High School District, 404 Ill. App. 3d at 763.
¶ 40       Here, there is no dispute that the step increases are a term or condition of employment, and
       there is no real question that CMS made a unilateral decision to withhold the step increases
       during negotiations. The question is whether this decision altered the status quo. More
       precisely, the question is whether the status quo between the parties included payment of the
       step increases.
¶ 41       In order to constitute part of the status quo between the parties, a term or condition of
       employment must be an established practice. International Union of Operating Engineers,
       Local 150, 23 PERI ¶ 39 (ILRB State Panel 2007) (citing Katz, 369 U.S. 736). The test for
       determining whether a practice is sufficiently established to constitute the status quo was set
       forth by the Fourth District in Vienna School District. As the court explained, our inquiry must
       take into account both the reasonable expectations of the employees and “whether the status
       quo would have been clearly apparent to an objectively reasonable employer at the time in
       question.” Vienna School District, 162 Ill. App. 3d at 507. In making this determination, we
       consider the following four factors: (1) the parties’ past history, (2) their past bargaining
       practices, (3) the terms of the existing CBA, and (4) the reasonable expectations of the
       employees. Id. at 509.
¶ 42       The status quo must be determined on a case-by-case basis. Id. Generally, however, where
       an employer has regularly paid its employees salary increases over a period of many years, as
       CMS has done here, the increases are sufficiently established to constitute the status quo. See,
       e.g., id. at 508 (finding that step salary increments that had been utilized for 10 years were an
       established practice); Lake Forest Professional Firefighters Union, IAFF, Local 1898, 29
       PERI ¶ 52 (ILRB State Panel 2012) (finding that employees had a reasonable expectation of
       receiving wage and step increases where they had regularly received the increases over a
       period of 12 years); International Union of Operating Engineers, 23 PERI ¶ 39 (20-year
       history of providing merit pay increases to eligible employees was an established practice that
       the employer was required to continue in order to maintain the status quo). Moreover, as a
       general rule, it is reasonable for employees to expect established practices to continue where,
       as here, the existing CBA expires before the parties finish negotiating a successor agreement.
       Vienna School District, 162 Ill. App. 3d at 508; Wilkes-Barre Hospital Co. v. National Labor
       Relations Board, 857 F.3d 364, 373 (D.C. Cir. 2017).
¶ 43       Under some circumstances, however, this general rule does not apply. In such cases,
       employees cannot reasonably expect all established practices to continue after the expiration of
       a CBA because alternative practices are sufficiently established to form a status quo applicable
       to periods when the parties are between contracts. The question before us is whether the
       ILRB’s conclusion that this is such a case was clearly erroneous.
¶ 44       In Oakwood Teachers’ Caucus, IEA-NEA, 9 PERI ¶ 1090 (IELRB 1993), for example, the
       CBA between a teachers’ union and a school district included provisions mandating salary
       increases based on both “horizontal” and “vertical” increments. The horizontal increments
       were based on teachers attaining higher levels of education, while the vertical increments were
       based on years of service. Id. The parties executed six CBAs before the dispute at issue arose.

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       On all but two previous occasions, negotiations for a new agreement were complete before the
       beginning of a new school year. Id. On both of those occasions, the teachers received salary
       increases based on the horizontal increments at the beginning of the new school year, as
       provided in the expired CBA, but on both occasions, they did not receive the salary increases
       based on the vertical increments until the new CBA went into effect. Id. Beginning in 1984, the
       parties began including in each CBA a provision that any money or benefits due under the new
       agreement “will be payable within 30 calendar days of final approval by both parties.” Id.
¶ 45       In 1992, negotiations for a new agreement once again continued past the beginning of the
       new school year, and the district again withheld payment of the vertical salary increases until
       the parties reached an agreement. Id. The union filed an unfair labor charge, alleging that the
       district failed to maintain the status quo by doing so. The Illinois Educational Labor Relations
       Board (IELRB) dismissed the charge. Id. The IELRB found that, based on the language of the
       contract and the parties’ past practice and bargaining history, the status quo required payment
       of the vertical increases only after execution of a new CBA. Id.
¶ 46       Similarly, in Wilmette Education Ass’n, IEA-NEA, 4 PERI ¶ 1077 (IELRB 1988), the CBA
       between a school district and its teachers’ union called for incremental salary increases based
       on level of education and years of experience. These increases were a feature of every
       agreement the parties signed between 1973 and 1986, when the dispute at issue in the case
       arose. Id. Both types of increases were paid at the beginning of each new school year when a
       CBA was in place. However, on four previous occasions, the parties did not agree to a new
       contract before the beginning of the next school year after their previous agreement expired.
       Id. On all four of those occasions, the district withheld the salary increments until the new
       CBA was signed. Three times, the district did so unilaterally; the fourth time, it withheld the
       increases with the agreement of the union. Id. The IELRB found that even though the increases
       were paid at the beginning of the school year when a CBA was in effect, the “consistent past
       practice” of withholding the salary increments during contract hiatuses “formed the teachers’
       reasonable expectations and constituted the status quo.” (Emphasis added.) Id.
¶ 47       In Zion Education Ass’n, IEA-NEA, 3 PERI ¶ 1091 (IELRB 1987), the IELRB reached a
       different result. There, the parties’ CBAs contained similar provisions calling for teachers’
       salaries to be increased based upon both level of education and years of experience. Id. During
       the parties’ 15-year bargaining relationship, they failed to agree to a new contract before the
       beginning of a new school year only twice prior to the dispute involved in the case. Id. During
       the first contract hiatus (in 1970), the parties agreed that the teachers would continue to receive
       their step increases. During the second hiatus (in 1975), the district withheld the increases until
       a successor agreement was ratified. Id. The next time the parties failed to agree to a CBA
       before the beginning of a school year was 11 years later, in 1986. The district did not pay the
       salary increases, and the teachers’ union filed an unfair labor charge. Id.
¶ 48       In determining whether the salary increases were part of the status quo, the IELRB first
       explained that the parties’ expired 1983-84 CBA “gave the District’s teachers a reasonable
       expectation that they would receive the salary increments *** with the first paycheck of the
       1986-87 school year.” Id. The Board then considered whether any factors existed that might
       alter this reasonable expectation. It found that there was nothing in the parties’ bargaining
       history to alter the teachers’ reasonable expectations. Id. As noted earlier, the parties’
       bargaining history included 15 years’ worth of similar agreements. Id. The IELRB further
       found that nothing in the parties’ past practices—including their practices during contract

                                                   - 11 -
       hiatus periods—negated the teachers’ reasonable expectations. Id. It explained that the
       district’s past practices during hiatus periods were “remote and inconsistent,” with only one
       instance in which the increases were denied. Id. The IELRB thus concluded that the increases
       were a part of the status quo that the district was required to maintain. Id.
¶ 49       The rule we can discern from these cases is that the test for determining whether a practice
       is sufficiently established to constitute a part of the status quo during hiatuses between CBAs is
       essentially identical to the test for determining whether a practice forms a part of the status quo
       between the parties more generally. In this case, that means we must consider whether, in light
       of the terms of the most recent CBA and the parties’ past practices and bargaining
       history—particularly their past practices during contract hiatus periods—it was reasonable for
       employees to expect to receive their step increases after expiration of the CBA. See Vienna
       School District, 162 Ill. App. 3d at 509.
¶ 50       Here, as the ILRB found, the parties included step increases in every CBA dating back to
       1974. The parties’ decades-long history of agreeing to step increases coupled with the
       language of their most recent CBA was sufficient to give employees a reasonable expectation
       that they would continue to receive the step increases. For the same reasons, we find that it
       would have made it readily apparent to an objectively reasonable employer that this
       well-established practice was part of the status quo. See id. at 507.
¶ 51       This does not end our inquiry. As we have explained, we must also consider whether any
       established practices have emerged during the past hiatuses between contracts that would
       negate this reasonable expectation. We do not believe the record before us supports a finding
       that any such established practices exist for the simple reason that all three previous
       contractual hiatuses were handled differently. During the 1983 hiatus, the parties agreed to a
       temporary freeze of the step increases.2 During the 2008 hiatus, the parties agreed that all three
       types of increases would continue. During the 2012 hiatus, which lasted through the summer of
       2013, CMS unilaterally withheld the step increases and longevity increases but paid the
       increases associated with semiautomatic promotions. Thus, there is no consistent practice
       sufficiently established to create a status quo specific to periods when the parties are between
       agreements.
¶ 52       The ILRB’s conclusion to the contrary was flawed for three reasons. First, finding a status
       quo in the face of such inconsistent practices ignores the requirement that the status quo be
       based on “established practices.” See, e.g., Thornton Fractional High School District, 404 Ill.
       App. 3d at 764 (finding that two instances in which secretaries were offered positions based on
       seniority were insufficient to demonstrate an established practice of offering the positions
       based on seniority).
¶ 53       Second, the ILRB decision as written appeared to take into account the current hiatus as
       part of the relevant history it considered. We acknowledge that the ILRB does not rely on the
       current hiatus in its arguments on appeal. However, to the extent it relied upon CMS’s practice
       of unilaterally withholding the step increases during the current contract hiatus, this is
       inappropriate bootstrapping. It is also worth noting that the practices followed by CMS during
       the 2012 and 2015 hiatuses are not even wholly consistent. In 2012, CMS withheld both the
       step increases and the longevity increases, while in the current hiatus, it is withholding only the

          2
            As explained earlier, AFSCME asserts that at least some of the employees did receive step
       increases during this period without an agreement.

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       step increases. Only the step increases are at issue in this appeal, but the difference illustrates
       part of the problem in finding the reasonable expectations of employees negated by the
       unilateral conduct of their employer during a single contract hiatus.
¶ 54       Third, accepting the ILRB’s reasoning would eviscerate the requirement that an employer
       maintain the status quo during collective bargaining. It is undisputed that the only previous
       instance in which CMS withheld the step increases without AFSCME’s agreement was after
       the 2008-12 CBA expired. The ILRB found that employees could not reasonably expect
       anything different to occur in 2015 than what occurred in 2012. It reasoned that the reasonable
       expectations of employees must be based on this one period because it is the most “factually
       similar” period to the instant contract hiatus. Accepting this rationale would give employers
       the power to unilaterally alter the status quo by withholding a benefit during even one contract
       hiatus. Such a result would be untenable.
¶ 55       We reiterate that the general rule is that, if a practice is sufficiently “established” to
       constitute the status quo, it is reasonable for employees to expect that practice to continue
       during hiatus periods between agreements. Vienna School District, 162 Ill. App. 3d at 508.
       This reasonable expectation is only negated in cases where a different practice becomes
       sufficiently established during periods between agreements to constitute a status quo
       applicable to those periods. The ILRB’s conclusion that nonpayment of the step increases
       absent an agreement to pay them was sufficiently established to become the status quo for
       contract hiatus periods was clearly erroneous.
¶ 56       We next consider CMS’s argument that section 21.5 of the Labor Relations Act (5 ILCS
       315/21.5 (West 2014)) negates any obligation it might have to pay the step increases. This calls
       for us to construe the statute. Our primary goal in statutory construction is to discern and
       effectuate the intent of the legislature. The best indicator of this intent is the language of the
       statute to be construed, which should be given its plain and ordinary meaning. City of Chicago
       v. Industrial Comm’n, 331 Ill. App. 3d 402, 403 (2002). Because statutory construction is an
       issue of law, our review is de novo. County of Cook, 284 Ill. App. 3d at 152.
¶ 57       As discussed earlier, section 21.5 provides that a CBA between a state agency or
       department and the union representing its employees may not extend beyond June 30 of the
       year in which the Governor and other executive branch officers begin their terms. 5 ILCS
       315/21.5(a) (West 2014). The CBA also may not require any salary increases after the day on
       which the new term of the Governor and other executive branch officers begins and before
       June 30 of that year. 5 ILCS 315/21.5(b) (West 2014). Any CBA that violates either of these
       prohibitions is “rendered null and void by operation of law.” 5 ILCS 315/21.5(c) (West 2014).
       Here, as we also previously discussed, the ILRB found that the parties’ most recent CBA
       violated subsection (b) by requiring step increases and longevity increases to be paid after the
       new Governor took office on January 12, 2015. The Board therefore found that the contract
       was null and void. However, the Board also concluded that the employer’s duty to maintain the
       status quo is independent of the contract and, as such, the statute has no impact on CMS’s
       obligation to pay the step increases if necessary to maintain the status quo. CMS argues that the
       ILRB erred in reaching this latter conclusion. We disagree.
¶ 58       There are two components to this argument. First, CMS correctly notes that, because the
       CBA was rendered void by the statute, its contractual obligation to pay the step increases was
       likewise rendered null and void. CMS contends that, by rendering this contractual obligation
       null and void, “Section 21.5(c) eliminates any other legal obligation to pay the step increases.”

                                                   - 13 -
       (Emphasis added.) CMS cites no legal authority for this proposition, and we do not find it
       persuasive. As both AFSCME and the ILRB point out, the duty to preserve the status quo
       during contract negotiations does not depend on the existence of a CBA; the obligation exists
       even during negotiations for an initial CBA. See, e.g., Metropolitan Alliance of Police, Grundy
       County Civilians, Chapter 693, 32 PERI ¶ 26 (ILRB State Panel 2015) (considering whether
       an employer violated its obligation to maintain the status quo while the parties were in
       negotiations for their first CBA); Lake Forest Professional Firefighters Union, 29 PERI ¶ 52
       (same). Nothing in the express language of section 21.5 addresses obligations that arise under
       other provisions of the Labor Relations Act.
¶ 59        Moreover, because the duty to preserve the status quo is part of an employer’s statutory
       duty to bargain in good faith, we find that the broad interpretation of section 21.5 urged by
       CMS would put it into direct conflict with other provisions of the Labor Relations
       Act—specifically, sections 7 and 10(a)(4). See 5 ILCS 315/7, 10(a)(4) (West 2014). In
       construing a statutory provision, we must not read it in isolation. Rather, we must read it in
       conjunction with other provisions of the same act. Burger v. Lutheran General Hospital, 198
       Ill. 2d 21, 40 (2001). The construction urged by CMS does not comport with this basic tenet of
       statutory construction.
¶ 60        The second component to CMS’s argument is that the public policy behind the enactment
       of section 21.5 requires us to accept its interpretation of the statute. This is so, CMS argues,
       because the statute was enacted to prevent one gubernatorial administration from saddling the
       next administration with financial obligations. However, as CMS acknowledges, the statute is
       clear and unambiguous. We may not read into a provision that is clear and unambiguous any
       terms or provisions that are not found in the statute. Acme Markets, Inc. v. Callanan, 236 Ill. 2d
       29, 38 (2009). We conclude that the ILRB correctly found that section 21.5 has no effect on
       CMS’s obligation to maintain the status quo.
¶ 61        Finally, we consider CMS’s contention that we must affirm the ILRB’s decision because
       the supreme court’s recent decision in State/CMS negates its obligation to pay the increases
       absent a legislative appropriation of sufficient funds to do so. We note that CMS did not make
       this argument in the administrative proceedings. However, due to the timing of the supreme
       court’s decision, we do not find the argument to be forfeited. The ALJ issued her
       recommended decision in this case on February 3, 2016. AFSCME filed its exceptions on
       March 16, and CMS filed its cross-exceptions on March 31. The ILRB considered the
       exceptions and issued a final written decision in May 2016. The supreme court issued its
       opinion in State/CMS on March 24, 2016. However, the court’s mandate did not issue until
       June 27, 2016. By that time, the administrative proceedings in this case were complete. Under
       these circumstances, CMS could not have raised this argument before the ILRB. We will
       therefore address it.
¶ 62        State/CMS is one of several disputes between AFSCME and CMS arising from the state’s
       budget crisis. That case involved the State’s obligation to pay wage increases under the parties’
       2008-12 CBA. The agreement called for general wage increases to go into effect on specified
       dates, including a 4% increase that was scheduled to go into effect on July 1, 2011. State/CMS,
       2016 IL 118422, ¶ 4.
¶ 63        During 2010, AFSCME and CMS entered into a series of cost-savings agreements
       designed to avoid potential layoffs due to declining State revenue. Id. ¶¶ 6-7. In one of those
       agreements, AFSCME agreed that instead of receiving a 4% wage increase on July 1, 2011,

                                                   - 14 -
       employees would receive a 2% increase on that date, and they would receive another 2%
       increase on February 1, 2012. In exchange, CMS agreed that it would not close facilities or lay
       off employees during fiscal year 2012, which ran from July 1, 2011, to June 30, 2012. Id. ¶ 4
       n.1, ¶ 7. However, the Governor’s Office of Management and Budget determined that the
       legislature’s appropriations bills did not include adequate funding for 14 of the State agencies
       to pay the 2% increase to their employees on July 1, 2011. Id. ¶ 8. CMS therefore announced
       that, due to insufficient appropriations, it could not implement the July 1 wage increase for
       employees in those 14 agencies. Id. ¶ 9.
¶ 64       AFSCME initiated arbitration proceedings to enforce the provisions of the agreements
       mandating the wage increase. Id. ¶ 10. The arbitrator ruled in AFSCME’s favor (id. ¶ 13), and
       CMS filed a petition to vacate the arbitration award (id. ¶ 14). The trial court affirmed the
       award with modifications not relevant here (id. ¶¶ 15-17), and CMS appealed its ruling (id.
       ¶ 18). The First District affirmed the arbitration award in its entirety (id. ¶ 20), but the supreme
       court reversed that ruling and vacated the award (id. ¶ 56).
¶ 65       In reaching the conclusion it did, the supreme court considered the effects of the
       appropriations clause of our state constitution (Ill. Const. 1970, art. VIII, § 2(b)) and section 21
       of the Labor Relations Act (5 ILCS 315/21 (West 2012)) on the State’s contractual obligation
       to pay the wage increases without adequate appropriations from the legislature. The
       appropriations clause gives the legislature exclusive power to appropriate funds for
       expenditures. State/CMS, 2016 IL 118422, ¶ 42 (citing Ill. Const. 1970, art. VIII, § 2(b), and
       McDunn v. Williams, 156 Ill. 2d 288, 308 (1993)). Section 21 of the Labor Relations Act
       provides that, “Subject to the appropriation power” of the legislature, public employees and the
       unions representing their employees “may negotiate multi-year collective bargaining
       agreements.” 5 ILCS 315/21 (West 2014).
¶ 66       The supreme court began its analysis by observing that an arbitration award “is not
       enforceable if [it] contravenes paramount considerations of public policy.” State/CMS, 2016
       IL 118422, ¶ 41. The court explained that the public policy of this State “finds expression, first
       and foremost, in our state constitution” (id. ¶ 42), and that public policy is also shaped by
       legislation (id. ¶ 43).
¶ 67       The court went on to explain that the Labor Relations Act reflects an important public
       policy of granting public employees the freedom to organize and to collectively bargain over
       the terms and conditions of their employment. Id. ¶ 44 (citing 5 ILCS 315/2 (West 2012)). The
       court observed, however, that “This broad statement of public policy *** is tempered by
       section 21.” Id. (citing 5 ILCS 315/21 (West 2012)). The court explained that the language in
       the statute making multiyear CBAs subject to the legislature’s appropriations power is an
       important limitation because it “reinforces the public policy of this state under which the
       power to appropriate for the expenditure of public funds is unique” to the legislature. Id. ¶ 45.
       Applying these principles to the facts before it, the supreme court held that section 21 made
       any provision in a multiyear CBA mandating the payment of wage increases implicitly
       contingent on sufficient legislative appropriations. Id. ¶ 49.
¶ 68       We reiterate that this case turns not on the contractual obligation to pay the step increases
       but on the employer’s obligation to maintain the status quo. We note that CMS does not argue
       that section 21 itself is applicable here. We also note that the State/CMS court emphasized that
       the only issue it was deciding was whether contractual obligations in a nonexpired multiyear
       CBA were subject to sufficient appropriations from the legislature. The court found that it

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       would be “ill-advised” to address any other questions. Id. ¶ 54. The court’s emphasis on the
       “dominant public policy” of the appropriations clause indicates that the case might have
       broader application, however. See id. ¶ 56.
¶ 69       CMS argues that the holding in State/CMS applies here and requires us to affirm the
       ILRB’s decision because “the facts upon which the supreme court based its opinion are the
       same facts upon which this appeal is based.” We disagree.
¶ 70       CMS’s argument is based on Illinois’s protracted budget impasse, which was only recently
       resolved. After the previous state budget expired on July 1, 2015, the legislature and the
       Governor were unable to agree to a budget. As a result, the State was without a budget for
       approximately two full years. During that time, the legislature passed various stop-gap
       appropriations bills, which did not fully fund the government. The stop-gap bill in effect in
       December 2016, when CMS filed its brief in this appeal, did not appropriate any funds to pay
       the salaries of the State’s employees. On July 6, 2017, the impasse ended when the legislature
       overrode the Governor’s veto of its budget legislation.
¶ 71       When AFSCME filed its reply brief in this matter, however, the status of the State’s budget
       impasse had not changed since CMS filed its brief a month earlier. AFSCME’s arguments
       reflect this fact. In response to CMS’s arguments, AFSCME first argued that State/CMS is
       wholly inapplicable because this case involves the enforcement of a statutory obligation rather
       than a contractual obligation. See Jorgensen v. Blagojevich, 211 Ill. 2d 286, 314 (2004)
       (explaining that when “ ‘a statute categorically commands the performance of an act, so much
       money as is necessary to obey the command may be disbursed without any explicit
       appropriation’ ” (emphasis added) (quoting Antle v. Tuchbreiter, 414 Ill. 571, 581 (1953))).
       AFSCME further argued that, because there was no way “to predict what the State budgetary
       situation will be” by the time the ILRB issues an order directing CMS to take action to remedy
       the unfair labor practice, “it would be premature for this court to act upon any speculation that
       appropriations may not exist at the time an enforceable order is entered in this case.” We agree
       with AFSCME’s second contention.
¶ 72       Although CMS argues that the facts of this case are identical to the facts relied upon by the
       supreme court in State/CMS, we believe there are crucial distinctions that make it premature
       for us to consider whether inadequate appropriations negate CMS’s obligation to pay the step
       increases in order to maintain the status quo. As previously discussed, before the dispute at
       issue in State/CMS arose, the Office of Management and Budget analyzed the appropriations
       that were made to each affected agency. After conducting this analysis, it concluded that 14 of
       the agencies lacked sufficient funding to pay the wage increases mandated by the CBA as
       modified by the cost-savings agreement. State/CMS, 2016 IL 118422, ¶ 8. The case reached
       the circuit court on CMS’s motion to vacate the arbitrator’s award in July 2012, shortly after
       fiscal year 2012 ended, and came for trial in December 2012. By the time of trial, nine of those
       agencies determined that they had sufficient funds remaining from their fiscal year 2012
       appropriations to pay the back wages that had been ordered by the arbitrator. Those agencies
       paid the back wages, and the litigation continued with respect to the obligation of the
       remaining five agencies. See id. ¶¶ 14-15, ¶ 15 n.5, ¶ 17 n.6.
¶ 73       The facts underlying CMS’s appropriations argument in this case are quite different. When
       CMS filed its brief in this case in December 2016, the State had been without a budget for 18
       months. The stop-gap appropriations bill in effect at the time provided no appropriations for
       paying State employees, a situation that led to extensive litigation between these same parties.

                                                  - 16 -
       As AFSCME correctly points out, however, there was no way to predict what the budget
       situation would be by the time the proceedings in this case concluded. Stop-gap appropriations
       bills are by their very nature temporary. Moreover, as we have discussed, the State now does
       have a budget. We presume the budget includes appropriations to pay State employees.
       However, we do not know how much funding has been appropriated to each agency that
       employs AFSCME’s members. We do not know what the ILRB will direct CMS to pay union
       members to remedy the unfair labor practice. Most importantly, we do not know whether the
       funds appropriated will be sufficient to cover any payment ordered by the ILRB.
¶ 74       In State/CMS, the supreme court held that “the arbitrator’s award, which ordered
       immediate payment of the 2% wage increase without regard to the existence of corresponding
       appropriations by the General Assembly, violated *** public policy.” (Emphasis added.) Id.
       ¶ 56. Here, CMS asks us to uphold a decision finding that it did not commit an unfair labor
       practice. In essence, it asks us to find that AFSCME and its members are entitled to no remedy
       on the assumption that there will not be sufficient appropriations from which to satisfy any
       obligation the ILRB might impose on CMS when crafting an appropriate remedy. Even
       assuming the holding of State/CMS is applicable to cases involving the obligation to maintain
       the status quo, it would not require that result. For this reason, we agree with AFSCME that it
       would be premature for this court to determine what, if any, impact insufficient appropriations
       might have on its obligation to pay the step increases. We will therefore leave that question for
       a more appropriate case. See id. ¶ 54 (stating that it was “ill-advised” for the dissent in that case
       to address issues not presented by case before the court). We hold only that (1) the ILRB’s
       finding that CMS did not commit an unfair labor practice was clearly erroneous and (2) section
       21.5 of the Labor Relations Act (5 ILCS 315/21.5 (West 2014)) does not negate CMS’s
       obligation to pay the step increases.
¶ 75       For the foregoing reasons, we grant CMS’s motions to take judicial notice, we deny CMS’s
       motion for remand before considering the merits, and we reverse the decision of the ILRB, and
       we remand for further proceedings.

¶ 76       Motions to take judicial notice granted; motion for remand denied; administrative decision
       reversed; cause remanded for further proceedings.




                                                    - 17 -
