Judicial Rulings

By CHERYL FRANK

Now Supreme Court

PUBLIC employee rights to collective bargaining received severe setbacks in two Illinois Supreme Court decisions December II. In one, the powerful Chicago Teachers Union struck out in its attempt to sue the Chicago Board of Education for breach of contract for salaries lost in 1977 when the schools closed one day early due to a fiscal crisis. In the other, hospital employees failed to get to first base when the high court refused to order the Cook County Board to bargain collectively with them under union agreements made with a predecessor agency. The old adage of public employee collective bargaining — "have union agreement, will negotiate" — nay be as antiquated as unionized air traffic controllers.

At issue in both cases were the discrelionary powers of public agencies and their contractual obligations. Against a background of funding cuts, lay-offs and possible labor unrest, both rulings point to the lack of a sufficient legal framework in Illinois for defining labor relations in the public sector.

Over the years, the high court's role in public employee collective bargaining cases has been of "umpiring" between the two sides of the legal patchwork now in place. On the one hand, the National Labor Relations Act (NLRA) is silent on the collective bargaining rights of public employees, although existing public bargaining practice often takes it signals from the NLRA. On the other hand, there is a whole body of contract law, which the state Supreme Court has also relied on in rendering decisions. Through lack of a specific statute or more definitive legislative guidelines, these disputes are settled in what some have called a rather hit-or-miss fashion.

Illinois does have Executive Order No. 6, signed by Gov. Dan Walker in 1973 and honored by Gov. James R. Thompson, which allows nonsupervisory state employees under the governor the right to bargain collectively, except for those in sensitive policymaking positions and in temporary and emergency jobs. Certain other public sector employees also have the right to bargain: university civil service and RTA employees, for example. The picture with teachers is unclear; most of the bargaining

that occurs is based on past practice, local school boards' acceptance of bargaining as the most productive way of dealing with teachers, and the power mustered by the teachers' organizations themselves.

Given the faltering national and state economies, the governor has made a priority of mediating between business and labor. But ambiguity remains the rule in conflicts related to public employee collective bargaining rights. In the absence of executive or legislative clarification of these questions, the courts will continue to serve as umpires.

In Chicago Board of Education v. Chicago Teachers Union, the union accused the board of breach of contract and sought payment of the salaries lost when teachers were laid off without pay for one day — June 16, 1977 — in order to alleviate the school system's accumulated debt. The high court found that the board had the discretionary power to impose a layoff for economic reasons and reversed appellate and circuit court decisions which had ordered payment of the salaries pursuant to the collective bargaining agreement. In delivering the majority opinion, Justice Thomas J. Moran noted that the board had met the minimum time requirements for keeping the schools open and had refused to guarantee to the union a full 39-week school year. "The Board's action in closing the schools one day early was in compliance with its power granted by the [School] Code," Moran said.

But according to dissenting Justice Seymour Simon, members of the affected bargaining unit were clearly entitled to their day's pay under terms of their contract. The board had exercised its discretionary powers freely and willingly when it entered into the collective bargaining agreement, Simon argued, and even if the board was within its rights to lay off a day early, it was not within its rights to dock the pay of employees paid on a yearly, not hourly basis. Demurring language in the Board of Education's budget document does not override contractual payroll obligations, Simon stated, noting that at the time of the layoff there was no shortage in the education fund to pay the salaries. "The majority opinion," he said, "rather than attempting to deal with agreement on its own terms, elevates the Board's statutory 'discretion' in managing its affairs to such an exalted status as to render the Board virtually incapable of entering into binding contracts."

At issue in Peters v. Health and Hospitals Governing Commission was whether the Cook County Board is obligated to honor collective bargaining agreements with duly elected union representatives made by the board's predecessor, the Health and Hospitals Governing Commission. Union elections had been held under the commission, and there were the usual expectations that collective bargaining would follow, since all rights and responsibilities of the commission had been legally transferred to the board. But after considering the transfer of power and contractual obligations, the high court ruled that the Cook County Board, a public body, cannot under any circumstances be forced to negotiate with its employees. The decision reversed an appellate court ruling and affirmed the circuit court.

Delivering the majority opinion, Chief Justice Joseph H. Goldenhersh said: ". . . we find no authority in statutory or case law which supports the position that a public body can be ordered to negotiate such an agreement. Indeed, under the National Labor Relations Act, a State or local government entity has the unequivocal right to refuse to enter into a collective bargaining agreement with its employees."

Dissenting again from the majority but "not as vehemently" as in the previous case, Simon argued that the commission did not surrender its discretion when it entered into agreement to bargain with the unions. Therefore, the county board as successor to the hospitals commission is bound to abide by the two union election agreements which had been negotiated by the commission in 1971 and 1979.

A divided court on the rights of juveniles

STRONG dissenting opinions were issued in two December 18 Supreme Court rulings involving the rights of juveniles in the criminal justice system.

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In the case, In re G.B., the high court ruled that a circuit court had properly sentenced a habitually truant 16-year-old to a 60-day term of detention after the youth was found in contempt of court for the second time. Speaking for the majority, Justice Howard C. Ryan emphasized the inherent power of the court to enforce its orders without legislative restrictions. The circuit court, he concluded, was within its rights to find the youth in contempt twice and to impose both probation and detention, whether for punishment or rehabilitative purposes.

Pointing to the lack of medical, psychological, or other testing, as well as counseling, dissenting Justice Daniel P. Ward said: "I believe that invoking the contempt power frustrates the design of the legislature to provide specialized handling, through the Juvenile Court Act, of nondelin-quent minors in need of supervision or care."

Justice Seymour Simon also dissented, holding that a nondelinquent minor should not be placed in a detention center with "underage rapists, thieves and armed robbers." According to Simon, amendments passed in 1980 to the federal Juvenile Justice and Delinquency Prevention Act allow juveniles who are found in contempt to be put in detention centers, but this federal provision is counter to Illinois' law which provides that minors in violation of a court order are not delinquents and should not be treated as such. In substance, the majority ruling "is permitting the juvenile court to accomplish indirectly what it could not directly do, jail a truant as a juvenile delinquent," he said.

In People v. Woodruff, Justice Simon concurred with the court's ruling that charges against Woodruff, a juvenile tried as an adult for home invasion and armed robbery, should not be dismissed on the grounds that he had awaited trial more than 120 days. Simon agreed with the majority on the basis that the defendant was in custody for a different offense than the one out of which the case arose, and therefore was not protected under the speedy trial act with the 120-day time limit.

Simon disagreed, however, with the majority's alternative position that "minors do not commit 'offenses' and can never be 'in custody for an offense' [and therefore under protection of the speedy trial act] until they are transferred to adult status." A charge such as armed robbery is, by common sense, a charge of an offense, he said. "Essentially, a delinquent minor is one who commits an offense. The focus is on ... the defendant's conduct, not on how the legal system will respond .... Why then, should a minor tried as an adult have less protection than a real adult?"

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