For the second time in three days, a state appeals court in Southern Illinois has handed a win to a labor union representing state workers in disputes with a state agency that answers to Illinois Gov. Bruce Rauner, this time finding a state labor board must hold hearings on whether the state improperly threatened to make striking workers pay the full cost of their health insurance.

On Nov. 8, a three-justice panel of the Illinois Fifth District Appellate Court, which convenes in Mt. Vernon, overturned a decision by the Illinois Labor Relations Board to dismiss without a hearing a complaint from the American Federation of State, County and Municipal Employees (AFSCME) union that the state’s Department of Central Management Services had engaged in an unfair labor practice by requiring striking employees to pay the full cost of their health insurance premiums for the pay period during which they are on strike, even if they only strike for a portion of the pay period.

Illinois Fifth District Appellate Court
Illinois Fifth District Appellate Court

In its decision, the appeals justices said they believed the ILRB should not have simply brushed aside the matter without even conducting a hearing or allowing the union to submit witnesses and evidence to support its allegations.

“Here … no witnesses testified, neither party made allegations that were inherently implausible, and the limited documentary evidence available was inconclusive,” the justices wrote. “Under these circumstances, there was nothing upon which a reasonable fact finder could base a credibility determination, and in fact, the administrative decision did not include any explicit credibility determinations.

“For these reasons, we believe it was arbitrary, and therefore unreasonable, to accord more credence to the allegations of CMS than those of AFSCME.”

The decision was authored by Justice Melissa A. Chapman, with justices Richard P. Goldenhersh and Judy Cates concurring.

The case dates back to 2015, when AFSCME’s most recent collective bargaining agreement with the state expired. As the two sides continued negotiations, and the threat of a strike by state workers represented by AFSCME became a potentiality, CMS posted a “frequently asked questions” (FAQ) message on their website, addressing questions they believed workers may ask as they considered whether to authorize a strike, should the two sides fail to secure a new contract.

Among the FAQs was a post discussing health insurance for striking workers. That post indicated CMS believed it would be the striking workers’ burden to pay the full premium for such time as they are on strike, even if they strike for only a portion of a pay period.

“If striking employees miss any day during the pay period due to being on strike, they will be sent a bill for the full cost of their coverage,” the CMS FAQ said.

AFSCME responded with a grievance filed with the ILRB, saying they believed the posted policy position improperly threatens workers who may strike, and would also discriminate against striking workers, because making them pay the full cost of their health insurance premium for a full pay period would mean the state is treating striking workers differently from employees who otherwise may take unpaid leave. The union further alleged “the policy constitutes a unilateral unbargained-for change in a term of employment – health insurance.”

The union asserted the decision would be analogous for refusing to pay striking workers for any whole pay period that included a strike, even if the workers weren’t on strike for that entire pay period.

CMS responded with a letter asserting the state as “an employer is not required to subsidize a strike,” and its position regarding health insurance for striking workers was not different from its position regarding paying workers to be on strike.

Further, CMS asserted its policy only continued an existing policy which the state had applied to workers who went on strike at Northeastern Illinois University in 2004.

AFSCME, however, asserted that policy was not applied to the striking NEIU workers and “no faculty members were billed for the employer’s share of their health insurance premiums and that nontenure track faculty members were reimbursed for improper deductions after the strike ended.”

The ILRB responded in late 2015 by dismissing the union’s charge without a formal hearing, after an ILRB member discussed the matter with representatives of the union and CMS, and the board’s executive director declared she believed the charge should be dismissed.

AFSCME then appealed the decision to the Fifth District court in 2016, with oral arguments held in April 2017.

In their decision, the Fifth District justices said they believed there was not enough evidence yet on the record to allow the ILRB to dismiss the union’s charge without a hearing.

They noted the evidence provided by CMS, while indicating striking workers could be required to pay their full health insurance premiums during a strike, doesn’t state clearly a state policy of requiring workers to pay their full insurance premiums for an entire pay period that included a strike.

Since CMS alleges such a policy exists, and AFSCME says it does not, more evidence should be required, the justices said.

“…We acknowledge that AFSCME had the burden of demonstrating that there was enough evidence to warrant a hearing on this issue,” the justices said. “However, it is difficult to prove a negative. Thus, expecting a union to be able to produce evidence of the nonexistence of an employer’s policy not previously communicated to it without additional, more formal proceedings is likewise unreasonable.”

The justices remanded the case to the ILRB for further proceedings.

The decision marks the second time in a week the Fifth District court sided with AFSCME in a dispute with CMS. On Nov. 6, the same three-justice panel found CMS had wrongly refused to pay automatic pay raises to union workers, which had been required under the most recent CBA, after the contract had expired.

In both cases, AFSCME is represented in the matter by the firm of Dowd, Bloch, Bennett, Cervone, Auerbach & Yokich, of Chicago.

CMS is represented by attorneys serving as special assistant attorneys general from the firm of Laner Muchin Ltd., of Chicago; the ILRB is represented by the Illinois Attorney General’s office, as well as Solicitor General David L. Franklin.

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Organizations in this Story

AFSCME Council 31
205 N Michigan Ave
Chicago, IL - 60601

Dowd, Bloch, Bennett, Cervone, Auerbach & Yokich
8 South Michigan Avenue
Chicago, IL - 60603

Illinois Fifth District Appellate Court
S 14th St
Mt Vernon, IL - 62864

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