STATE OF ILLINOIS ILLINOIS LABOR RELATIONS BOARD …

STATE OF ILLINOIS ILLINOIS LABOR RELATIONS BOARD

STATE PANEL

American Federation of State, County and

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Municipal Employees, Council 31

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Charging Party,

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Case No. S-CA-19-116

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and

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County of DuPage (DuPage Care Center),

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Respondent.

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ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER

On May 31, 2019, the American Federation of State, County and Municipal Employees,

Council 31 ("AFSCME", "the Union", or "the Charging Party") filed a charge in Case No.

S=CA-19-116 with the State Panel of the Illinois Labor Relations Board (the "Board") alleging

that the County of DuPage (DuPage Care Center) (the "Employer", the "Respondent", "the

County", or "the DPCC") engaged in unfair labor practices within the meaning of Section 10(a)

of the Illinois Public Labor Relations Act, 5 ILCS 315 (2014), as amended ("the Act").

Thereafter, the charge was investigated in accordance with Section 11 of the Act and the Rules

and Regulations of the Board, 80 Ill. Admin. Code, Parts 1200 through 1240 ("the Rules").

On September 30, 2019, the Executive Director issued a Complaint for Hearing, alleging

that the Respondent had failed and refused to bargain in good faith with the Charging Party in

violation of Sections 10(a)(4) and (1) of the Act. Respondent then timely filed its Answer to the

Complaint, denying all material allegations.

Following the filing of Respondent's Answer, an Order Scheduling Hearing was issued

on November 1, 2019. A pre-hearing conference was held by conference call with both counsel

on November 6, 2019, and the hearing was held pursuant to the Scheduling Order on December

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12, 2019. Both parties appeared at the hearing, with the Charging Party appearing by attorney Melissa J. Auerbach and the Respondent appearing by attorney David L. Miller. The parties were given a full opportunity to participate, adduce relevant evidence, and examine witnesses. Written briefs were timely filed by both parties. Accordingly, based on the testimony, evidence and arguments submitted by the parties before, during, and after the hearing, and upon the entire record of this case, I recommend the following:

I. PRELIMINARY FINDINGS The following facts are uncontested: 1. The Employer, County of DuPage (DuPage Care Center), is a public employer

within the meaning of Section 3(o) of the Illinois Public Labor Relations Act. 2. The Employer is subject to the jurisdiction of the Board's State Panel pursuant to

Section 5(a) of the Act. 3. The American Federation of State, County and Municipal Employees, Council 31

is a labor organization within the meaning of Section 3(i) of the Act.

II. ISSUES AND CONTENTIONS The DuPage Care Center (`the DPCC") is a short-term and long-term nursing and

rehabilitation facility that is operated by the County of DuPage ("the County") and that serves the residents of the County. On November 27, 2018, the Charging Party was certified to represent a bargaining unit of employees of the DPCC that includes full-time, part-time and active Registry employees, including those with the title of Certified Nursing Associate ("CNA"). On January 31, 2019, Jeannell Gatson ("Gatson"), a part-time CNA, was terminated

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by the Respondents for attendance-related reasons. When the Respondents refused to bargain over her discharge, the unfair labor practice charges were filed and a Complaint for Hearing ("Complaint") was issued. The Complaint was then amended pursuant to a motion presented by the Charging Party at the hearing.

The Charging Party contends that discipline is a mandatory subject of bargaining and that termination of an employee constitutes a unilateral change in the employee's terms and conditions of employment. The Employer, the Charging Party asserts, failed to give the Union notice and an opportunity to bargain prior to Gatson's termination and then refused to bargain over the discharge and its effects after the termination decision was made and effectuated. In asserting that the Respondents violated their duty to bargain under the Act, thus violating Sections 10(a)(4) and (1), the Charging Party places primary reliance on precedent arising under the National Labor Relations Act, most prominently Total Security Management Illinois 1 LLC, 364 NLRB No. 106 (2016) ("Total Security Management"), suggesting strongly that the Board should adopt and follow that the reasoning of that case.

The Charging Party further asserts that, when confronted with a demand to bargain over the disciplinary decision, the Employer stated its legal position that it had no duty to bargain over individual disciplinary actions and demanded that the Union submit its legal position supporting the asserted duty to bargain in these circumstances. According to the Charging Party, the Respondent's response to the Union's demand to bargain constituted the imposition of a unilateral and illegal precondition to bargaining, thus constituting a further violation of the Respondent's duty to bargain under the Act.

The Respondent contends that it had no duty to bargain over an individual disciplinary decision during the pendency of first contract negotiations. They contend that Gatson was an at-

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will employee and that her termination for poor attendance, excessive call-ins on weekends, and tardiness was consistent with the Employer's practice in enforcing attendance requirements, a practice that therefore constituted the status quo. By maintaining the status quo during the pendency of first-contract negotiations with the Union, the Respondents contend that there was no duty on the part of the DPCC to give notice and an opportunity to bargain with the Union prior to the decision to terminate Gatson's employment and that there was no duty to bargain about the decision and its effects after its implementation.

While the Respondent contends that the Charging Party did not meet its burden of showing that the Gatson termination decision represented a change in the status quo, they assert that if the Board should adopt the reasoning of the National Labor Relations Board in Total Security Management, it should do so prospectively only. The Respondents also assert that, if the Board should find a violation of the duty to bargain here, the Board should award no backpay to Gatson because, they contend, she was discharged for cause.

III. FINDINGS OF FACT 1. The DPCC and its Registry employees The DuPage Care Center, located at 400 North County Road in Wheaton, Illinois, is a

nursing and rehabilitation facility operated by the County of DuPage. The facility, with a capacity of 340 residents, generally cares for 300 to 325 residents at any given time and employs some 500 employees. As a nursing and rehabilitation facility, the DPCC employs health care workers in various classifications, including nurses and Certified Nursing Associates (CNA's). Because of the size of the facility, 40 CNA's per day, per shift were needed to fill staffing

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requirements. At the time of the hearing, there were approximately 130 clinical staff openings at the DPCC.

To ensure adequate staffing, the DPCC utilizes, in addition to full-time staff, a category of employees called registry employees. Registry employees are utilized to fill in for regular employees when staffing considerations, including days off and scheduled and unscheduled absences, require their use. Registry employees are not employed, however, to serve as a regular replacement pool for regular employees who call in sick or otherwise absent on any given day; rather, the DPCC attempts to find other staff to fill in, which could be either regular employees or registry employees.

During all times relevant to this proceeding, registry employees were considered to be occupying temporary positions and were required to sign registry agreements whereby they agreed to sign up for and work a minimum number of shifts per month. The agreements provided that the employee would be required to work, at the employee's option, a minimum of eight, 14, or 16 shifts per month, including at least six weekend days per month. In addition, registry employees were required to work one major summer holiday, one major winter holiday, and two additional County holidays. A written confirmation of the agreement, signed by employee, provided that if the registry employee did not comply with the policies and procedures associated with the registry position, the employee could be terminated at such time as the DPCC saw fit. The progressive disciplinary system that was used for regular employees (regular caregiver staff) did not apply to registry employees.

In addition to working a required minimum number of weekday, weekend, and holiday shifts, a registry employee could volunteer to work additional shifts beyond the minimum. It is not clear from the evidence how such additional shifts were assigned, but Gatson's testimony

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