City of Bloomington v. Illinois Labor Relations Board

Opinion

NO. 4-06-0774 Filed 5/3/07

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE CITY OF BLOOMINGTON, ) On Direct Appeal Petitioner-Appellant, ) from Illinois Labor v. ) Relations Board, THE ILLINOIS LABOR RELATIONS BOARD, ) State Panel, STATE PANEL; and THE INTERNATIONAL ) No. S-CA-04-166 ASSOCIATION OF FIREFIGHTERS, LOCAL ) 49, ) Respondents-Appellees. )

JUSTICE MYERSCOUGH delivered the opinion of the court:

Petitioner, the City of Bloomington (City), appeals the

decision of respondent Illinois Labor Relations Board, State

Panel (Board), finding the City committed an unfair labor prac-

tice. International Ass'n of Firefighters, Local 49, 22 Pub.

Employee Rep. (Ill.) par. 107, No. S-CA-04-166 (Illinois Labor

Relations Board, State Panel, August 23, 2006) (hereinafter 22

Pub. Employee Rep. (Ill.) par. 107). The City argues the Board

erred in holding that the City was required to bargain with

respondent International Association of Firefighters, Local 49

(Union), over promotions to the position of assistant fire chief,

a position outside the bargaining unit represented by the Union.

We affirm.

I. BACKGROUND

The Union is the exclusive bargaining representative of

a historical bargaining unit composed of the City's firefighters, fire lieutenants, and fire captains. The highest rank in the

bargaining unit is captain.

Promotions within the bargaining unit are controlled by

the parties' bargaining agreement. The parties stipulated that

the Bloomington Fire and Police Commission (Commission) con-

trolled promotions to the rank of assistant fire chief, which

since June 2003 has been the rank immediately above that of

captain but is not within the bargaining unit.

On May 21, 2004, the Union sent the following letter to

the City:

"It has come to the attention of IAFF

Local [No.] 49 that Chief Ranney had proposed

two (2) options to the Bloomington Fire and

Police Commission ([Commission]) altering the

promotional process for [a]ssistant [c]hief.

According to the Fire [Department] Promo-

tion[] Act [(Promotion Act) (50 ILCS 742/1

through 999 (West 2004))] the City is re-

quired to bargain with the certified repre-

sentative of the rank immediately below the

rank of [a]ssistant [c]hief, to wit IAFF

Local [No.] 49 over the weights assigned to

the various components of the test. Accord-

ingly, as the representative of IAFF Local

- 2 - [No.] 49, I hereby demand that we commence

formal negotiations over the new Assistant

Chief promotional exam pursuant to the [Pro-

motion Act]."

The City refused the Union's demand for bargaining. The City

claimed that while it was "bound by the provision of the ***

Promotion Act," the process of appointing individuals to posi-

tions outside the bargaining unit was not a mandatory subject of

bargaining. See Village of Franklin Park v. Illinois State Labor

Relations Board, 265 Ill. App. 3d 997, 1005, 638 N.E.2d 1144,

1148-49 (1994) (First District); see also 50 ILCS 742/10(a),

(d)(2) (West Supp. 2003) (eff. August 4, 2003).

On June 21, 2004, the Union filed an unfair labor

practice with the Board. In November 2005, the executive direc-

tor of the Board issued a complaint for hearing alleging the City

violated sections 10(a)(4) and (1) of the Illinois Public Labor

Relations Act (5 ILCS 315/10(a)(1), (4) (West 2004)) when it

failed and refused to bargain in good faith over changes to the

criteria for promotion to the rank of assistant fire chief. In

December 2005, the City filed its answer to the complaint.

Because the facts were not in dispute, the parties

agreed that in lieu of a hearing, the case should be decided on

the basis of the record. The record consists of the complaint,

the City's answer, stipulations by the parties, the Union's

- 3 - motion for summary judgment, and the City's response to the

motion for summary judgment.

On April 25, 2006, the administrative law judge (ALJ)

issued a recommended decision and order herein finding an unfair

labor practice based on Libertyville Professional Firefighters

Ass'n, IAFF, Local 3892 v. Village of Libertyville, 21 Pub.

Employee Rep. (Ill.) par. 211, No. S-CA-05-045, at 762, 762-63

(Illinois Local Labor Relations Board November 28, 2005) (finding

the Promotion Act made the topic of promotions to nonbargaining

unit positions a mandatory subject of bargaining) (hereinafter

Village of Libertyville, 21 Pub. Employee Rep. (Ill.) par. 211)).

International Ass'n of Firefighters Local 49, 22 Pub. Employee

Rep. (Ill.) par. 107, No. S-CA-04-166 (ALJ recommended decision

and order April 25, 2006). On May 31, 2006, the City filed its

exceptions to the recommendation and order. The City claimed the

ALJ erroneously held the Village of Libertyville board ruling was

the law of the case, and the City asserted the First District's

opinion in Village of Franklin Park v. Illinois State Labor

Relations Board, 265 Ill. App. 3d 997, 638 N.E.2d 1144, was the

controlling decision. The City also argued the ALJ erroneously

held that the Promotion Act required the City to negotiate the

terms of promotion to the assistant fire chief position.

In June 2006, the Union, in its response to the City's

exceptions, sought additional relief. Specifically, the Union

- 4 - claimed that since May 2004, the City had continued its promo-

tional process for the rank of assistant fire chief, resulting in

the creation of a promotion list and promotions being made in

January 2006. The Union requested the promotional list be deemed

invalid and any promotions to the rank of assistant fire chief

since May 21, 2004, be rescinded.

In August 2006, the Board upheld the recommendation of

the ALJ and adopted it as the decision of the Board as modified.

The modifications included the additional relief sought by the

Union. 22 Pub. Employee Rep. (Ill.) par. 107, at 414-15.

This appeal followed. The parties concede this appeal

affects only two individuals.

II. ANALYSIS

The City argues that at the time in question--prior to

the 2006 amendment to the Promotion Act (Public Act 94-809, §5,

eff. May 26, 2006 (2006 Ill. Legis. Serv. 1493, 1494 (West))

(amending 50 ILCS 742/10(d)(2) (West 2004))--the Promotion Act

made promotions to positions outside the bargaining unit a

permissive subject of bargaining, not a mandatory subject (see 50

ILCS 742/10(a), (d)(2) (West 2004)), and did not change the law

set forth by Franklin Park. The Union argues the case is moot

because the Promotion Act has been amended to specifically

provide that promotions to the next rank immediately above the

highest rank included within the bargaining unit a mandatory

- 5 - subject of bargaining.

A. Case Is Not Moot

According to the Union, the City's admission that the

amended version of the Act makes promotions to the next rank

immediately above the highest rank included within the bargaining

unit a mandatory subject of bargaining renders the case moot.

The Union cites Illinois Chiropractic Society v. Giello, 18 Ill.

2d 306, 310, 164 N.E.2d 47, 50 (1960), for the proposition that

this "case must be disposed of by the reviewing court under the

law as it then exists, and not as it was when the decision was

made by the trial court."

Generally, statutory amendments relating to substantive

rights apply prospectively while amendments relating to proce-

dural rights apply retroactively. Ready v. United/Goedecke

Services, Inc., 367 Ill. App. 3d 272, 275, 854 N.E.2d 758, 761

(2006), appeal allowed, 222 Ill. 2d 600, 861 N.E.2d 664 (2006)

(No. 103474). The presumption that an amendment affecting

substantive rights is prospective can be rebutted by express

language or necessary implication. Ready, 367 Ill. App. 3d at

275, 854 N.E.2d at 761. Here, the amendment to the Promotion Act

contains no express language that it applies retroactively.

The Giello case is inapposite here because it involved

an injunction for conduct that was subsequently made lawful.

Giello involved lawsuits to enjoin individuals from practicing

- 6 - chiropractic without a license in violation of the Medical

Practice Act (Ill. Rev. Stat., 1957, ch. 91, par. 5). Giello, 18

Ill. 2d at 307-08, 164 N.E.2d at 49. The Medical Practice Act

prescribed certain educational requirements for the issuance of a

license under the Act. Giello, 18 Ill. 2d at 308, 164 N.E.2d at

49.

At oral argument, the defendants therein claimed the

benefits of an amendment to the Medical Practice Act that allowed

certain educational requirements to be waived where the applicant

passed a written exam on or before July 1, 1963. Giello, 18 Ill.

2d at 308, 164 N.E.2d at 50. The amendment also provided that an

applicant would not be subject to prosecution for failure to have

a license under the provisions of the Medical Practice Act during

the time period covered by the Act (until July 1, 1963). Giello,

18 Ill. 2d at 310, 164 N.E.2d at 50.

The supreme court found the circuit court properly held

that plaintiffs were entitled to injunctive relief under the

state of the law when the injunctions were entered. Giello, 18

Ill. 2d at 310, 164 N.E.2d at 50. However, the court noted that

"where the legislature has changed the law pending an appeal the

case must be disposed of by the reviewing court under the law as

it then exists, and not as it was when the decision was made by

the trial court." Giello, 18 Ill. 2d at 310, 164 N.E.2d at 50.

Through the change in the law, the legislature declared persons

- 7 - such as the defendants temporarily qualified and removed the

basis upon which injunctive relief was appropriate. Giello, 18

Ill. 2d at 311-12, 164 N.E.2d at 51 (noting no valid purpose is

discernible for permitting private individuals to continue

injunction suits to restrain conduct which has become lawful).

Here, because the legislature did not specifically

indicate the amendment would apply retroactively, and because

this case does not involve an injunction against conduct now

rendered lawful, the statute does not apply retroactively and the

case is not moot.

B. History of the Subject of Promotions to Ranks Outside the Bargaining Unit

A public employer is required to bargain collectively

with regard to matters directly affecting wages, hours, and

conditions of employment as well as the impact thereon. 5 ILCS

315/4 (West 2004). A public employer and the exclusive represen-

tative have the duty to bargain collectively. 5 ILCS 315/7 (West

2004). An employer commits an unfair labor practice if the

employer or its agent (1) interferes with, restrains, or coerces

public employees in the exercise of the rights guaranteed in the

Act; or (2) refuses to bargain collectively in good faith with a

labor organization which is the exclusive representative of

public employees in an appropriate unit. 5 ILCS 315/10(a)(1),

(a)(4) (West 2004).

In 1994, prior to the enactment of the Promotion Act,

- 8 - the First District in Franklin Park, 265 Ill. App. 3d 997, 638

N.E.2d 1144, found that because captains in the fire department

were not members of the bargaining unit, the proposal for promo-

tion to captain was not a mandatory subject of bargaining.

Franklin Park, 265 Ill. App. 3d at 1005, 638 N.E.2d at 1148-49.

The court found that the Illinois Public Labor Relations Act

"does not impose a duty on the Village to bargain over promotion

criteria for employees outside the scope of the bargaining unit."

Franklin Park, 265 Ill. App. 3d at 1005, 638 N.E.2d at 1149.

In addition, the Franklin Park court affirmed the

Board's decision that the following promotion issues were manda-

tory subjects of bargaining for promotions within a bargaining

unit: (1) the criteria for promotions; (2) weighting criteria;

(3) minimum eligibility requirements to participate in exams; (4)

the order of promotion from the eligibility list; and (5) the

posting of exam scores. Franklin Park, 265 Ill. App. 3d at 1001,

638 N.E.2d at 1146. The court also affirmed the Board's decision

that the following issues were not mandatory subjects of bargain-

ing (for promotions within the bargaining unit): (1) exam format

and design; (2) the identity of those who conduct/administer oral

and written parts of the exam; (3) standards and guidelines for

exam questions; and (4) standards and guidelines for merit and

efficiency ratings. Franklin Park, 265 Ill. App. 3d at 1001, 638

N.E.2d at 1146.

- 9 - In 2003, the legislature passed the Promotion Act,

effective August 4, 2003. Pub. Act 93-411, eff. August 4, 2003

(2003 Ill. Legis. Serv. 2251-57 (West) (enacting 50 ILCS 742/1

through 999)). The Promotion Act details various aspects of the

promotion process. In general, the Promotion Act contains the

following provisions: (1) that the appointing authority will

administer a promotion process in accordance with the Promotion

Act, including minimum eligibility requirements, publication of

every component of the testing and evaluation procedures, and the

appointing authority will provide a separate promotional examina-

tion for each rank filled by promotion (50 ILCS 742/15 (West

2004)); (2) the factors to determine a person's position on the

preliminary promotion list (50 ILCS 742/20 (West 2004)); (3) that

all aspects of the promotion process shall be monitored by two

impartial persons appointed by the exclusive bargaining agent and

may be monitored by two impartial persons selected by the ap-

pointing authority (50 ILCS 742/25 (West 2004)); (4) the weight

given to any component in a test is set at the discretion of the

appointing authority provided that the weight is subject to

modification by the terms of any collective-bargaining agreement

in effect as of the effective date of the Promotion Act or

thereafter by negotiations between the employer and the bargain-

ing representative; however, the provisions of this section do

not apply if inconsistent with a provision otherwise agreed to in

- 10 - a collective-bargaining agreement (50 ILCS 742/30 (West 2004));

(5) the material in a written examination must be pertinent to

the rank for which the examination is given and each department

shall maintain reading and study materials for its current

written examination and the reading list of the last two written

examinations (50 ILCS 742/35 (West 2004)); (6) seniority points

may be based only on service in the affected department as of the

date of the written examination and the seniority list shall be

posted before the written examination is given and before the

preliminary promotion list is complied; the weight of seniority

and its computation shall be determined by the appointing author-

ity or through a collective-bargaining agreement (50 ILCS 742/40

(West 2004)); (7) the promotion test is to include points for

ascertained merit, such as for education, training, and certifi-

cation in skills related to fire service; every person eligible

to compete for promotion shall be given an equal opportunity to

obtain ascertained merit points unless otherwise agreed to in a

collective-bargaining agreement (50 ILCS 742/45 (West 2004)); (8)

the promotion test may include subjective evaluation components

(50 ILCS 742/50 (West 2004)); (9) a veterans' preference (50 ILCS

742/55 (West 2004)); and (10) a right to review suspected errors

by the appointing authority or as otherwise provided by law (50

ILCS 742/60 (West 2004)).

The Promotion Act further defines "promotion" to

- 11 - include, with certain exceptions not at issue here, "any appoint-

ment or advancement to a rank within the affected department ***

(3) that is the next rank immediately above the highest rank

included within a bargaining unit." (Emphasis added.) 50 ILCS

742/5 (West 2004). The parties agree that the assistant fire

chief position falls within the definition of "promotion" under

the Promotion Act.

The "applicability" portion of the Promotion Act prior

to the 2006 amendment provided, in relevant part, as follows:

"(b) Notwithstanding any statute, ordi-

nance, rule, or other laws to the contrary,

all promotions in an affected department to

which this Act applies shall be administered

in the manner provided for in this Act.

Provisions of the Illinois Municipal Code,

the Fire Protection District Act, municipal

ordinances, or rules adopted pursuant to such

authority and other laws relating to promo-

tions in affected departments shall continue

to apply to the extent they are compatible

with this Act, but in the event of conflict

between this Act and any other law, this Act

shall control.

***

- 12 - (d) This Act is intended to serve as a

minimum standard and shall be construed to

authorize and not to limit:

(1) an appointing authority

from establishing different or

supplemental promotional criteria

or components, provided that the

criteria are job-related and ap-

plied uniformly.

(2) the negotiation by an

employer and an exclusive bargain-

ing representative of clauses

within a collective[-]bargaining

agreement relating to conditions,

criteria, or procedures for the

promotion of employees who are

members of the bargaining units.

(3) The negotiation by an

employer and an exclusive bargain-

ing representative of provisions

within a collective[-]bargaining

agreement to achieve affirmative

action objectives, provided that

such clauses are consistent with

- 13 - applicable law.

(e) Local Authorities and exclusive

bargaining agents affected by this Act may

agree to waive one or more of its provisions

and bargain on the contents of those provi-

sions, provided that any such waivers shall

be considered permissive subjects of bargain-

ing." (Emphasis added.) 50 ILCS 742/10(b),

(d), (e) (West 2004).

In 2005, following the enactment of the Promotion Act,

the Illinois Labor Relations Board decided Village of

Libertyville, 21 Pub. Employee Rep. (Ill.) par. 211. In that

case, the union represented the employer's firefighters and

firefighter/paramedics. The employer's lieutenants, positions

immediately above the rank of firefighter, were specifically

excluded from the bargaining unit.

The employer refused to bargain over a provision

regarding the promotion of unit employees to the nonbargaining

unit position of lieutenant, the next highest rank outside the

bargaining unit. The Board noted that it and the appellate

courts had previously held that promotions to nonbargaining unit

positions were not mandatorily negotiable, referring to Franklin

Park, 265 Ill. App. 3d 997, 638 N.E.2d 1144. However, in light

of the passage of the Promotion Act, the Board revisited the

- 14 - issue and concluded the Promotion Act "makes the topic of promo-

tions to non[]bargaining unit positions in the context of fire

departments mandatorily negotiable." The Board, in a 4-1 deci-

sion, specifically found:

"[T]he legislature pointedly included lan-

guage providing that the FDPA's terms shall

serve as a minimum standard and directed

bodies interpreting that language that its

terms should be construed to authorize and

not limit bargaining over promotions, which

include promotion to non[]unit titles. In

our view, there is no other way to read this

language other than requiring, or, in other

words, not limiting in any way, that parties

bargain over promotions to non[]bargaining

unit titles that are immediately above the

highest unit rank." Village of LIbertyville,

21 Pub. Employee Rep. (Ill.) par. 211, at

763.

Member Hernandez dissented, finding that the plain language of

the Promotion Act authorized bargaining over promotions but did

not require it. Village of Libertyville, 21 Pub. Employee Rep.

(Ill.) par. 211, at 764 (member Hernandez, dissenting).

Effective May 26, 2006, the legislature amended the

- 15 - Promotion Act, changing only the language at issue herein in

section 10(d)(2):

"(d) This Act is intended to serve as a

minimum standard and shall be construed to

authorize and not to limit:

***

(2) The right of negotiation by an

employer and an exclusive bargain-

ing representative to require an

employer to negotiate of clauses

within a collective bargaining

agreement relating to conditions,

criteria, or procedures for the

promotion of employees to ranks, as

defined in Section 5, covered by

this Act who are members of bar-

gaining units." (Additions are

indicated by underline/italics;

deletions by strikeout.) Pub. Act

94-809, §5, eff. May 26, 2006 (2006

Ill. Legis. Serv. 1494 (West)).

C. Legal Standard

1. Standard of Review on Appeal

Because this case involves a matter of statutory

- 16 - interpretation, this court applies a de novo standard of review

to the Board's determination. Wilson v. Department of Profes-

sional Regulation, 344 Ill. App. 3d 897, 907, 801 N.E.2d 36, 44

(2003) (de novo review of an administrative agency's decision

limited to matters involving statutory interpretation). However,

if the Promotion Act is an act the Board was created to enforce,

and provided the statute is ambiguous, this court would then give

deference to the administrative agency's determination. See

County of Will v. Illinois State Labor Relations Board, 219 Ill.

App. 3d 183, 185, 580 N.E.2d 884, 885 (1991); City of Decatur v.

American Federation of State, County, & Municipal Employees Local

268, 122 Ill. 2d 353, 361, 522 N.E.2d 1219, 1222 (1988).

2. Statutory Interpretation

When construing a statute, the primary consideration is

to determine and give effect to the legislature's intent. Burger

v. Lutheran General Hospital, 198 Ill. 2d 21, 40, 759 N.E.2d 533,

545 (2001). The best evidence of the legislature's intent is the

language of the statute itself. Calibraro v. Board of Trustees

of Buffalo Grove Firefighters' Pension Fund, 367 Ill. App. 3d

259, 262, 854 N.E.2d 787, 790 (2006). A court must consider the

statute as a whole so that no term is rendered superfluous or

meaningless. Texaco-Cities Service Pipeline Co. v. McGaw, 182

Ill. 2d 262, 270, 695 N.E.2d 481, 485 (1998). Only where the

language of the statute is ambiguous may the court resort to

- 17 - other aids of statutory construction. Jackim v. CC-Lake, Inc.,

363 Ill. App. 3d 759, 764-65, 842 N.E.2d 1113, 1117 (2005).

When the legislature materially changes a statute, that

raises the presumption that the change is an alteration, not a

clarification, of the original statute. Chiczewski v. Emergency

Telephone System Board of Du Page County, 295 Ill. App. 3d 605,

608, 692 N.E.2d 691, 694 (1997). That presumption is rebutted if

the circumstances surrounding the enactment of the amendment

indicate the legislature intended to interpret the statute.

Chiczewski, 295 Ill. App. 3d at 608, 692 N.E.2d at 694. "'It is

proper for a court to consider a subsequent amendment to a

statute to determine the legislative intent behind and the

meaning of the statute prior to the amendment.'" Chiczewski, 295

Ill. App. 3d at 608, 692 N.E.2d at 694, quoting Bloink v. Olson,

265 Ill. App. 3d 711, 715-16, 638 N.E.2d 406, 410 (1994).

The Promotion Act was enacted approximately nine years

after the Franklin Park decision. When statutes are enacted

after judicial opinions are published, it is presumed that the

legislature acted with knowledge of the prevailing case law.

People v. Hickman, 163 Ill. 2d 250, 262, 644 N.E.2d 1147, 1152

(1994). "A statute should not be construed to effect a change in

the settled law of the State unless its terms clearly require

such a construction." In re May 1991 Will County Grand Jury, 152

Ill. 2d 381, 388, 604 N.E.2d 929, 933 (1992). While the legisla-

- 18 - ture did not state, in enacting the Promotion Act, that it was

overruling the Franklin Park decision, the statute suggests the

legislature's intent to overrule Franklin Park. Moreover, the

2006 amendment and legislative history clarify that intent and

specifically address those issues raised in the Libertyville case

decided by the Board (Village of Libertyville, 21 Pub. Employee

Rep. (Ill.) par. 211).

D. The 2003 Version of the Promotion Act Required Bargaining Over Promotions to Assistant Fire Chief

In response to the amendment to the Promotion Act, the

City and Union agreed that promotions to the position of assis-

tant fire chief were a mandatory subject of bargaining. However,

the City continues to dispute that it committed an unfair labor

practice in the past, arguing that at the time in question--prior

to the 2006 amendment to the Promotion Act--the Promotion Act

made the subject a permissive subject of bargaining, not a

mandatory subject, and did not change the law set forth by

Franklin Park.

The City argues the plain and ordinary meaning of the

2003 version of section 10(d)(2) allowed, but did not require, an

employer to bargain over promotions to nonbargaining unit posi-

tions. In support of its claim, the City argues as follows: (1)

the phrase "authorize and not to limit" is inconsistent with the

creation of a mandatory duty and reading such language to mean

"require" would lead to absurd results when applied to sections

- 19 - 10(d)(1) and (d)(3); (2) the purpose of the Promotion Act was to

establish minimum standards for the promotion process and not to

define the scope of an employer's bargaining duty; (3) section

10(d)(2) should not be construed to effect a change in the law

because a presumption exists that the legislature was fully aware

of the decision in Franklin Park and yet did not state its

intention to overrule it; and (4) the legislature's 2006 amend-

ment was intended to change the law.

The Board and the Union argue that as a whole, the

Promotion Act manifests an intent by the General Assembly to make

promotional criteria for the nonunit rank immediately above the

highest bargaining unit rank a mandatory subject of bargaining

(see, e.g., 50 ILCS 742/5 (defining "promotion"), 10(d)(2)

(authorizing negotiation of clauses relating to conditions,

criteria, or procedures for the promotion of bargaining unit

employees) (West Supp. 2003)) and the 2006 amendment confirms

this interpretation.

This court concludes that issues relating to the

promotion to positions outside the bargaining unit, as defined by

the Promotion Act, are mandatory subjects of bargaining. The

Promotion Act specifically defines "promotion" to include promo-

tions to the position at issue here. See 50 ILCS 742/5 (West

2004). Given that Franklin Park specifically held that promo-

tions to the positions outside the bargaining are not a mandatory

- 20 - subject of bargaining, the legislature's definition of "promo-

tion" to include the next rank immediately above the highest rank

included in the bargaining unit demonstrates the legislature's

intent to overrule Franklin Park. See In re May 1991 Will County

Grand Jury, 152 Ill. 2d at 388, 604 N.E.2d at 933 (noting that a

statute will not be construed to effect a change in settled law

unless its terms clearly require such a construction). In light

of Franklin Park's prohibition on mandatory bargaining over

promotions to the next highest nonunit position immediately

following the highest rank within the bargaining unit, the

legislature's authorization of bargaining of those positions

reflects a reversal of Franklin Park and a mandate for mandatory

bargaining of those positions.

Black's Law Dictionary's definition of "authorize"

provides as follows:

"1. To give legal authority; to empower

*** 2. To formally approve; to sanction."

Black's Law Dictionary 143 (8th ed. 2004).

That is what the legislature did, in light of Franklin Park's

prohibition--gave legal authority for or empowered bargaining of

these positions, i.e., mandating bargaining. In light of the

confusion over this issue that surfaced in Libertyville, 21 Pub.

Employee Rep. (Ill.) par. 211, the legislature went back in 2006

and added the language "to require" to section 10(d)(2).

- 21 - At most, the language "to authorize and not to limit"

is ambiguous when applied to section 10(d)(2) when reading the

Promotion Act in full. To interpret the language as suggested by

the City, that the Promotion Act does not make bargaining over

nonunit titles mandatory, would render meaningless the inclusion

of the definition of "promotion" in section 5 and, in essence,

render the legislation meaningless. See Libertyville, 21 Pub.

Employee Rep. (Ill.) par. 211, at 768.

Nonetheless, because the language in subsection (d)(2)

can be read both as providing that such subject may be bargained

and, when read in the context of the Promotion Act as a whole, as

requiring bargaining over such promotions, the provision is

ambiguous and subject to reasonable debate about its meaning.

Harrisonville Telephone Co. v. Illinois Commerce Comm'n, 212 Ill.

2d 237, 247, 817 N.E.2d 479, 486 (2004). The Board's interpreta-

tion in Libertyville therefore remains relevant to our resolution

of this issue (Libertyville, 21 Pub. Employee Rep. (Ill.) par.

211) and although our review is de novo, we give deference to the

Board's interpretation of the Promotion Act because the statute

is ambiguous. See County of Will, 219 Ill. App. 3d at 185, 580

N.E.2d at 885. Moreover, this ambiguity permits an examination

of the legislative history as well as deference to the Board's

interpretation. See Jackim, 363 Ill. App. 3d at 764, 842 N.E.2d

at 1117.

- 22 - The legislative history of the Promotion Act relating

to the 2006 amendment contains Senator Reitz's statement that the

bill clarifies the requirement that the employer bargain over

promotions like the one at issue here:

"Thank you, Mr. Speaker. Senate Bill

827 is a follow-up from a Bill we did a few

years ago. It just clarifies the requirement

that a ...for an employer to bargain, as the

exclusive bargaining agent, relating to con-

ditions, criteria, and procedures for the

promotion of employees. It affects...it's an

initiative of the firefighters and I'd appre-

ciate your support and I'd be happy to answer

any questions. But it just clarifies the

applica... applicable positions and it's an

agreed Bill." 94th Ill. Gen. Assem., House

Proceedings, March 28, 2006, at 3-4 (state-

ment of Rep. Reitz).

See also 94th Ill. Gen. Assem., Senate Proceedings, March 2,

2006, at 181 (statements of Senator Link).

The use of the term "clarifies" indicates the legisla-

ture intended the Promotion Act to make mandatory subjects of

bargaining all promotions to nonbargaining unit positions the

next rank immediately above the highest rank included within a

- 23 - bargaining unit. This 2006 amendment also indicates the legisla-

ture again affirmed the Board's decision in Libertyville.

To conclude, the language of the statute is ambiguous.

However, given the comments of Representative Reitz, the fact

that the Promotion Act changed the law articulated in Franklin

Park and the amendment adopting Libertyville, and giving defer-

ence to the Board's decision, we conclude that the original 2003

version of the Promotion Act required the City to bargain with

the Union over promotions to the assistant fire chief position.

III. CONCLUSION

For the foregoing reasons, we affirm the Board's

decision.

Affirmed.

KNECHT, J. concurs.

COOK, J., dissents.

JUSTICE COOK, dissenting:

Promotion procedures are important both to unions and

to employers. If an employer is allowed to promote only anti-

union employees, the survival of the union may be threatened. On

- 24 - the other hand, if the union controls promotions, the union might

end up running the company, destroying any pretense of managerial

authority. The solution has been to provide a legislative middle

ground of neutral promotion procedures. Leaving promotion

procedures to mandatory collective bargaining may not be a

solution; if an impasse is reached and the matter is resolved by

an arbitrator, the employer may still lose important rights

without its agreement. Promotions at all levels are important to

employers, but promotions to supervisory positions are particu-

larly important. See Department of Central Management Services

v. Illinois State Labor Relations Board, 278 Ill. App. 3d 79, 83,

662 N.E.2d 131, 134 (1996) (noting the concern that prounion bias

might impair a supervisor's ability to apply the employer's

policies).

Along these lines, the Promotion Act (2003 Promotion

Act) set minimum standards for promotion procedures. The 2003

Promotion Act was a comprehensive restatement of fire department

promotional procedures. It followed and to some extent modified

provisions set out in the Board of Fire and Police Commissioners

Division of the Illinois Municipal Code. Ill. Rev. Stat. 1989,

ch. 24, pars. 10-2.1-1 through 10-2.1-30. It followed the First

District's decision in Village of Franklin Park, 265 Ill. App. 3d

997, 638 N.E.2d 1144, which had endorsed a decision of the Board.

Under the 2003 Promotion Act, eligibility requirements shall be

- 25 - published a year in advance and all members shall be given an

equal opportunity. 50 ILCS 742/15(b) (West 2004). The employer

shall prepare a promotion list and a person's position on that

list shall be determined by certain listed factors. 50 ILCS

742/20(a), (b) (West 2004). Appointments shall be made in

accordance with rankings on the list, with the employer having

the right to pass over a person in some circumstances. 50 ILCS

742/20(d) (West 2004). The Union may select impartial persons as

observers. 50 ILCS 742/25(b) (West 2004). The weight given to

any test component may be set at the discretion of the employer.

50 ILCS 742/30 (West 2004). Test questions and materials must be

pertinent. 50 ILCS 742/35(a) (West 2004). Examinees have the

right to obtain their scores immediately and review their an-

swers. 50 ILCS 742/35(b) (West 2004). No employer personnel may

see the questions before the examination. 50 ILCS 742/35(c)

(West 2004). The basis for ascertained merit points shall be

published in advance and all persons given an equal opportunity.

50 ILCS 742/45(a) (West 2004). Subjective evaluation components

shall be identified to all candidates prior to application, be

job-related, and be applied uniformly. 50 ILCS 742/50(b) (West

2004).

It may be a mistake to describe these standards as

"minimum standards." "Default standards" may be a better phrase.

The standards are not set in stone and can be changed if the

- 26 - union and the employer choose to do so. They do not set a limit

beyond which the parties cannot go. The 2003 Promotion Act

provided:

"(d) This Act is intended to serve as a

minimum standard and shall be construed to

authorize and not to limit:

***

(2) The negotiation by an

employer and an exclusive bargain-

ing representative of clauses

within a collective[-]bargaining

agreement relating to conditions,

criteria, or procedures for the

promotion of employees who are

members of bargaining units." 50

ILCS 742/10(d)(2) (West 2004).

See also 50 ILCS 742/30 (West 2004) (weight of test components

shall be subject to modification by negotiations between employer

and union).

The 2003 Promotion Act was addressed in the Board's

2005 decision in Village of Libertyville. In that case, the

Union sought mandatory bargaining over its proposal to depart

from the 2003 Promotion Act regarding promotions to the nonbar-

gaining unit position of lieutenant. The ALJ recognized that the

- 27 - parties could depart from the minimum standards but rejected the

argument that the 2003 Promotion Act required mandatory bargain-

ing, concluding that the 2003 Promotion Act "simply establishes

that employers are to abide by the minimum requirements set forth

in the [Promotion Act] and permits parties to bargain over

procedures relating to promotions." Village of Libertyville, 21

Pub. Employee Rep. (Ill.) par. 211, No. S-CA-05-045, at 767

(Illinois Labor Board, State Panel, ALJ recommended decision and

order April 4, 2005) (hereinafter Libertyville (ALJ recommended

decision)). The ALJ found it significant that the legislature

did not use the term "mandatory" when it referred to negotiation

in section 10(d)(2) (50 ILCS 742/10(d)(2) (West 2004)). Liber-

tyville (ALJ recommended decision), 21 Pub. Employee Rep. (Ill.)

par. 211, at 767.

In a surprising decision however, the Board, one member

dissenting, reversed the decision of the ALJ, concluding that its

decision was required by the 2003 Promotion Act:

"[T]he legislature pointedly included language

providing that the [2003 Promotion Act's] terms

shall serve as a minimum standard and directed

bodies interpreting that language that its

terms should be construed to authorize and

not limit bargaining over promotions, which

include promotion to non[]unit titles. In

- 28 - our view, there is no other way to read this

language other than requiring, or, in other

words, not limiting in any way, that parties

bargain over promotions to non[]bargaining

unit titles that are immediately above the

highest unit rank." Libertyville, (ALJ

recommended decision), 21 Pub. Employee Rep.

(Ill.) par. 211, at 763.

The words "not limit" must be read as "requiring"? The 2003

Promotion Act would be "meaningless" unless it mandates bargain-

ing over promotions to nonunit titles? The decision was ap-

pealed, but unfortunately the case was settled before the appel-

late court could address it. The majority asserts that the 2003

Promotion Act overruled Franklin Park. Slip op. at 17. The 2003

Promotion Act did not overrule Franklin Park. Franklin Park was

"overruled" by the Board's decision in Libertyville. Our present

case is the first opportunity for a court to review the Board's

decision in Libertyville.

Franklin Park is noted for its emphatic rejection of

the argument that predecessor statutes imposed a duty on the

employer to bargain over promotion criteria for nonunit employ-

ees. "That captains are not members of the bargaining unit

controls analysis of the argument. *** The Union does not repre-

sent captains." Franklin Park, 265 Ill. App. 3d at 1005, 638

- 29 - N.E.2d at 1149. Also significant, however, is its rejection of

the employer's appeal. The employer had argued that even where

negotiation was required, the parties could not negotiate below

the minimum standards established by the legislature. For

example, the employer argued that the union's proposal that the

highest-ranking candidate be promoted violated the provision of

the Municipal Code that "[a]ll promotions shall be made from the

3 having the highest rating." Ill. Rev. Stat. 1989, ch. 24, par.

10-2.1-15. The court rejected the argument, concluding those

provisions shall not be construed as "limiting" the duty to

bargain collectively. Franklin Park, 265 Ill. App. 3d at 1006,

638 N.E.2d at 1149. That conclusion related to employees in the

bargaining unit, where bargaining was mandatory. If the court

had been dealing with an area of permissive bargaining, nonunit

employees, it would have said "such other law shall not be

construed as limiting the duty to bargain permissively." In the

2003 Promotion Act the word "limit" is again used to say that the

minimum standards are not controlling. 50 ILCS 742/10(d) (West

2004). The word does not address what form of bargaining is

required to go beyond the minimum standards.

The argument is made that the definition of the word

"promotion" in the 2003 Promotion Act to include advancement to a

rank "that is the next rank immediately above the highest rank

included within a bargaining unit" (50 ILCS 742/5 (West 2004))

- 30 - overturned Franklin Park. Slip op. at 18-19. I do not see that

to be the case. The Municipal Code standards applicable to fire

and police departments, considered in Franklin Park, did not

appear to be limited to promotions inside the bargaining unit.

See, e.g., Ill. Rev. Stat. 1989, ch. 24, par. 10-2.1-15. The

2003 Promotion Act was a comprehensive act setting minimum

standards for promotion both inside and to some extent, outside,

the bargaining unit. The 2003 Promotion Act expressed no inten-

tion to overturn the long-standing rule that there was no duty to

bargain over promotion criteria for employees outside the bar-

gaining unit.

In 2006, perhaps to bolster the Board's decision in

Libertyville, the legislature enacted a specific provision,

amending section 10(d)(2) to recognize "[t]he right of an exclu-

sive bargaining representative to require an employer to negoti-

ate clauses within a collective[-]bargaining agreement relating

to conditions, criteria, or procedures for the promotion of

employees to ranks, as defined in [s]ection 5, covered by this

Act." (Added language underlined/italicized.) Pub. Act 94-809,

§5, eff. May 26, 2006 (2006 Ill. Legis. Serv. 1494 (West)). The

amendment clearly seems to change the meaning of section

10(d)(2), but the majority seizes upon a legislator's use of the

word "clarifies" in his remarks on the floor. The majority's

stretch illustrates the dangers of using the passing remarks of a

- 31 - single legislator to interpret a statute, particularly when those

remarks find no support in the language of the statute. The

majority's holding that the 2006 amendment only "clarified" the

2003 Promotion Act is contrary to its holding that the 2006

amendment is not retroactive. "[T]he legislature did not specif-

ically indicate the amendment would apply retroactively ***."

Slip op. at 7. The majority, however, uses the word "clarified"

to make the amendment retroactive.

In the present case, after the passage of the 2003

Promotion Act, but before the Libertyville decision, the Union

asserted that "the City is required to bargain *** over the

weights assigned to the various components of the test" and

demanded that "we commence formal negotiations over the new

Assistant Chief promotional exam." The Union did not complain

that the minimum standards of the 2003 Promotion Act had not been

met. Its complaint was that the City refused to bargain. In

June 2006, the Board held that the City had committed an unfair

labor practice and ordered that the City rescind any promotions

to the position of assistant fire chief made after May 21, 2004.

Because Libertyville was incorrectly decided, and because promo-

tions outside the bargaining unit were not a subject of mandatory

bargaining until the 2006 amendment, I would reverse.

- 32 -