New test for teacher-district disputes

"The boundary line between policy matters that must be submitted to bargaining and policy matters that remain managerial prerogatives is not drawn with perfect clarity ... ." Chief Justice Benjamin K. Miller thus summarized the eternal tension between labor and management. He was speaking about a case in which the Illinois Supreme Court finally has spoken on such disputes between teachers unions and school districts.

Said Miller, "The basic conflict in this area of law arises from two incongruous sections of the Act" (the Educational Labor Relations Act: see Illinois Revised Statutes 1989, ch. 48, secs. 1701-1721). Section 10(a) requires bargaining "with respect to wages, hours and other terms and conditions of employment." Section 4 requires employers "to bargain collectively with regard to policy matters directly affecting wages, hours and terms and conditions of employment as well as the impact thereon . . . ."

The Supreme Court ruling was on two cases about mandatory bargaining issues that were consolidated before the court. One concerned a teacher evaluation plan and the other a reduction in force (RIF) for fiscal reasons. Rulings by the Illinois Educational Labor Relations Board (IELRB) had been taken to the appellate court, as permitted by the statute. The high court had to rule on the standard used by the IELRB in determining mandatory bargaining issues, as well as the appellate rulings on the standard. Both the IELRB and appellate decisions had found that a balancing test was needed.

Essentially, the high court ruled that formulation of previous tests had been inadequate and established its own version. The first step outlined in the court ruling is to determine whether the matter is one of wages, hours and terms and conditions of employment. An affirmative answer leads to the next question: "Is the matter also one of inherently managerial authority?" A negative answer obviously makes it the subject of mandatory bargaining, but a positive answer leads to the "hybrid situation" created by the anomalies in the act. The court prescribed a benefits-burden balancing test for the IELRB: It "should balance the benefits that bargaining will have on the decision-making process with the burdens that bargaining imposes on the employer's authority."

The court also ruled that in this case the act's provision for hearing at the appellate level was not an unconstitutional extension of that level's authority by giving it original jurisdiction. The Illinois Constitution gives the appellate court "powers of direct review of administrative action as provided by law" (Art. VI, sec. 6), and Supreme Court Rules allow it to "make any order that ought to have been made" (134 II. 2d R. 366(a)(5)). Here the IELRB had filed for enforcement of its administrative order.

Several issues remain unclear. Districts face the possibility of year-round bargaining (for example, many issue RIF notices 60 days before the end of the school year to comply with notification requirements), although the court said that "meaningful negotiations do not have to be long and drawn out." In the RIF case here, the issue was the district's failure to notify the union that it contemplated RIFs, although it did notify the teachers affected.

The act has been in force since 1983, and such issues have arisen before this, but the Supreme Court's June 9 decision in Central City Education Association v Educational Labor Relations Board and Board of Education, LeRoy Community Unit School District No 2. v Educational Labor Relations Board (Docket Nos. 70425, 70584 and 70609 cons.) was its first in a case like this. The cases were remanded to the IELRB for decisions applying the three-part test established by the court. Justice Thomas J. Moran wrote the opinion.

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Chief Justice Miller dissented in part because he felt that a three-part test used earlier by the IELRB was adequate, that the benefit-burdens analysis mandated by the court would add nothing and that the court could have considered the merits of the IELRB'S decision rather than remanding.

New test for liability in asbestos-related claims favors plaintiffs

The difficulty in establishing responsibility for asbestos-related injuries was somewhat diminished by a September 21 ruling of the Illinois Supreme Court. Such cases have been at issue in courts throughout the nation. This decision applies principles already established in other jurisdictions, with the effect of facilitating decisions favorable to the plaintiff in Illinois.

The defendant here was a trust established to handle claims against a group of Manville corporations now bankrupt. The plaintiff had worked in a plant where the raw asbestos supplied by Manville was a minor part of the raw materials used. Furthermore, plaintiff had testified before his death that he had not personally handled Manville asbestos. The defendant thus argued that there was no proof that Manville asbestos was the proximate cause of his injuries.

The court adopted a "frequency, regularity and proximity" test already established elsewhere. Here it had to be shown that "the defendant's asbestos was put to 'frequent' use in the ... facility in 'proximity' to where the decedent 'regularly' worked." The court said that there had to be "sufficient evidence tending to show that Manville asbestos was actually inhaled by the decedent." Both sides accepted medical evidence that a very small amount of inhaled dust could cause the injuries.

Other workers testified that bags of Manville asbestos released dust when opened, that the plant was a large, completely open structure and that a haze of dust was visible throughout. Asbestos fibres are microscopic and subject to "fibre drift," so that "Manville asbestos, once inside the plant, necessarily contributed to the dust in the plant air...," even though the defendant estimated that Manville asbestos accounted for no more than 3 percent of the dust. The court agreed with the appellate finding that "the decedent regularly worked in dangerous proximity to dust generated from Manville's asbestos. . . and that the jury could thereby reasonably infer causation."

Justice William G. Clark wrote the opinion in Thacker v UNR Industries, Inc. (Docket No. 72095).
    F. Mark Siebert

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