Section 1105.10  General Statement of Purpose

 

This Subpart details the procedures that will be followed in hearings that deal with issues related to the holding of an election, challenged ballots, amendment of certification or unit clarification, pursuant to Section 7 of the Illinois Educational Labor Relations Act [115 ILCS 5/7] (the Act), and 80 Ill. Adm. Code 1110.100.

 

(Source:  Amended at 28 Ill. Reg. 8710, effective June 6, 2004)

 

Section 1105.20  Setting of Representation Hearing

 

a)         Where a representation petition has been filed and the Illinois Educational Labor Relations Board (the Board) has determined that the petition is supported by an adequate showing of interest and there is reasonable cause to believe that a question of representation exists pursuant to Section 7 of the Act and 80 Ill. Adm. Code 1110.100 a hearing shall be scheduled on any unresolved issues relating to the holding of an election.  These issues include (but are not limited to) the scope of the bargaining unit, the exclusion of confidential, supervisory, or managerial employees as defined in the Act, or the existence of a bar to a petition or an election.  Where the parties to a representation petition are able to agree to the holding of an election and enter into a consent agreement pursuant to 80 Ill. Adm. Code 1110.100, no hearing will be held.

 

b)         Where a petition to clarify an existing bargaining unit is filed pursuant to 80 Ill. Adm. Code 1110.160 and it presents unresolved issues of material fact, it shall be set for hearing. When the petition does not present unresolved issues of material fact, the Executive Director will rule on the petition without a hearing. A fact is material to the claim or defense in issue when the success of the claim or defense is dependent upon the existence of that fact.

 

c)         Where a petition to amend certification is filed pursuant to 80 Ill. Adm. Code 1110.170 and it presents unresolved issues of material fact, it shall be set for hearing. When the petition does not present unresolved issues of material fact, the Executive Director will rule on the petition without a hearing. A fact is material to the claim or defense in issue when the success of the claim or defense is dependent upon the existence of that fact.

 

d)         Whenever a challenged ballot is determinative of the results of an election, a hearing shall be set when the challenge presents unresolved questions of material fact. Issues shall include (but are not limited to) whether the challenged ballot shall be counted in the final tally of the election. When the challenge does not present unresolved questions of material fact, the Executive Director will rule on the challenge without a hearing.

 

e)         When such a hearing is necessary to resolve issues relating to the holding of an election, challenged ballots, amendment of certification or unit clarification, the Executive Director shall appoint a hearing officer and shall give at least seven days' notice to the parties.  That notice shall include:

 

1)         The name of the hearing officer;

 

2)         The nature, location, date and time of the hearing;

 

3)         A statement of the legal authority and jurisdiction under which the hearing is to be held; and

 

4)         A reference to the particular Section of the Act and the rules of the Board involved.

 

f)         Motions to intervene or participate in the hearing, motions for continuances, and motions to revoke or quash subpoenas shall be directed to the hearing officer or, in the event that a hearing officer has not been named, to the General Counsel.  All such motions or requests must be in writing, must state with specificity the reasons or grounds for the motion, and must be served on all parties simultaneously with their filing with the hearing officer or General Counsel.

 

g)         Unless otherwise provided in the rules of the Board governing specific types of proceedings, the briefing schedule for all motions shall be as follows:

 

1)         Any supporting brief by the moving party shall be filed and served on all other parties simultaneously with the motion.

 

2)         Other parties shall have seven days to file a response and serve that response on all other parties simultaneously with the filing.

 

3)         The parties must seek leave of the hearing officer to file any additional briefs.  The hearing officer will allow the filing of additional briefs upon demonstration that material issues which could not have been anticipated have been raised.

 

h)         Requests for continuances must be made in writing, but need not be submitted as formal motions. Requests for continuances will be granted only for good cause shown, such as the unavoidable absence of a person essential to the hearing, and only when the continuance will not unduly delay the hearings.  The party requesting the continuance shall state specifically the reasons that a continuance is being sought and shall state whether the party has discussed the request with all other parties and whether any other party opposes the request.  Multiple requests for continuance will be viewed more strictly.

 

(Source:  Amended at 41 Ill. Reg. 10574, effective August 1, 2017)

 

Section 1105.30  Authority of Hearing Officer

 

The hearing officer shall have the duty to conduct a fair hearing, to ensure development of a clear and complete record, to take all necessary action to avoid delay, and to maintain order. The hearing officer shall have all powers necessary to these ends including (but not limited to) the authority to:

 

a)         Require submission of exhibits before the hearing;

 

b)         Require all parties to state in writing their positions with respect to issues, and to submit pre-hearing information, including a list of all exhibits to be offered by each party in their case in chief and a copy of each such exhibit, stipulations as to the authenticity and business record status of each such exhibit, and the estimated time proposed for the party's case in chief.  Parties submitting pre-hearing information specified above must serve that information on all other parties;

 

c)         Administer oaths and affirmations or direct the administration of oaths and affirmations by the court reporter transcribing the hearing;

 

d)         Examine witnesses, direct witnesses to testify, call or subpoena witnesses not offered by the parties, and examine such witnesses;

 

e)         Rule upon offers of proof and receive evidence and rule upon objections to the introduction of evidence;

 

f)         Regulate the proceedings of the case, and the conduct of the parties and their counsel, including (but not limited to) determining the order in which the parties shall present evidence after considering the parties' relative access to relevant evidence;

 

g)         Enter, on his own motion or motion of a party, such orders as are just when a party fails to comply with any order entered under 80 Ill. Adm. Code 1100, 80 Ill. Adm. Code 1105, 80 Ill. Adm. Code 1110, 80 Ill. Adm. Code 1120, 80 Ill. Adm. Code 1125, 80 Ill. Adm. Code 1130 and 80 Ill. Adm. Code 1135;

 

h)         Establish reasonable limits on the frequency and duration of the testimony of any witness and limit repetitious or cumulative testimony;

 

i)          Establish reasonable time limits and guidelines for opening or closing statements based upon the number and complexity of the issues;

 

j)          Establish deadlines and limitations for the filing of post-hearing briefs, including (but not limited to) requiring each party to elect between offering closing arguments or submitting post-hearing briefs simultaneously on a date set by the hearing officer; and

 

k)         Issue decisions pursuant to Section 1105.80 of this Subpart.

 

(Source:  Amended at 14 Ill. Reg. 1278, effective January 5, 1990)

 

Section 1105.40  Rights of Parties

 

a)         All parties to a representation hearing shall have the following rights:

 

1)         To appear on their own behalf or to be represented in accordance with 80 Ill. Adm. Code 1100.60;

 

2)         To offer evidence through the testimony of witnesses or through exhibits;

 

3)         To request subpoenas in order to subpoena witnesses or documents for the hearing;

 

4)         To question witnesses offered by other parties or the hearing officer;

 

5)         To object to testimony or exhibits offered by other parties or the hearing officer; and

 

6)         To make opening statements and to make either closing statements or submit post-hearing briefs simultaneously, subject to any limitation established by the hearing officer pursuant to Section 1105.30 of this Subpart.

 

b)         Misnomer of a party shall not be grounds for dismissal; the name of any party may be corrected at any time while the case is pending.

 

c)         All representation and decertification petitions may be amended at any time to conform with the evidence presented in the hearing.

 

(Source:  Amended at 41 Ill. Reg. 10574, effective August 1, 2017)

 

Section 1105.50  Conduct of Hearing

 

a)         All hearings under this Subpart shall be public.

 

b)         All witnesses shall be sworn.

 

c)         All testimony shall be recorded stenographically, or by other means which adequately preserve the record.  The parties shall be responsible for obtaining their own copies of the transcript from the reporter.  In the event that a party wishes to correct a transcription error in the transcript, the party shall notify the hearing officer in writing within seven days of receipt of the transcript and shall simultaneously serve a copy of that notification upon all other parties.

 

d)         A party tendering an exhibit for identification or admission into evidence shall be responsible for providing the original and three copies of the exhibit to the hearing officer and one copy to each other party at the time that the exhibit is tendered.

 

e)         The hearing record in all non-adversarial proceedings shall include:

 

1)         All petitions (excluding showing of interest submitted pursuant to 80 Ill. Adm. Code 1110), motions, briefs, exceptions, and rulings or decisions by the hearing officer;

 

2)         All evidence received by the hearing officer;

 

3)         A statement of all matters of which official notice has been taken;

 

4)         Offers of proof, objections, and rulings thereon;

 

5)         Proposed findings of fact and conclusions of law; and

 

6)         Any ex parte communications prohibited by Section 10-60 of the Illinois Administrative Procedure Act [5 ILCS 100/10-60], but such communications shall not form the basis for any finding of fact.

 

(Source:  Amended at 28 Ill. Reg. 8710, effective June 6, 2004)

 

Section 1105.60  Admissible Evidence

 

a)         The Hearing Officer shall follow the rules of evidence as applied in the courts of Illinois pertaining to civil actions.  In addition, the Hearing Officer will receive evidence which is material, relevant, and would be relied upon by reasonably prudent persons in the conduct of their affairs provided that the rules relating to privileged communications and privileged topics shall be observed.

 

b)         Evidence may be presented in the form of testimony, exhibits, or stipulations.

 

Section 1105.70  Official Notice

 

The Hearing Officer and the Board may take official notice of all facts of which Illinois courts may take judicial notice and of other facts within the specialized knowledge and experience of the Board.

 

Section 1105.80  Decisions and Exceptions (Repealed)

 

(Source:  Repealed at 41 Ill. Reg. 10574, effective August 1, 2017)

 

Section 1105.90  General Statement of Purpose

 

The rules in this Subpart detail the procedures that will be followed in hearings on election objections and unfair labor practice charges pursuant to Sections 8, 14, and 15 of the Act and 80 Ill. Adm. Code 1110.50 and 1120.10 through 1120.60.

 

Section 1105.100  Setting of Contested Case Hearing

 

a)         Where the Executive Director has issued a complaint on an unfair labor practice charge pursuant to Section 15 of the Act and 80 Ill. Adm. Code 1120.30 or a finding of probable cause with respect to an election objection pursuant to Section 8 of the Act and 80 Ill. Adm. Code 1110.150, a hearing shall be scheduled.  Unfair labor practice charges and election objections having a common nucleus of operative facts shall be consolidated for purposes of hearing.

 

b)         Complaints will issue or probable cause will be found when the investigation has disclosed adequate credible statements, facts, or documents which, if substantiated, and not rebutted in a hearing, would constitute sufficient evidence to support a finding of a violation of the Act.  Issuance of a complaint or finding of probable cause that objectionable conduct occurred by the Executive Director is not a decision that an unfair labor practice or objectionable conduct has in fact occurred.

 

c)         When such a hearing is necessary, the Executive Director shall appoint an Administrative Law Judge. When the Executive Director issues a Complaint and Notice of Hearing, the parties shall be given at least seven days' notice of the hearing.  That notice and the complaint or finding of probable cause shall include:

 

1)         The name of the Administrative Law Judge;

 

2)         The location, date and time of the hearing;

 

3)         A statement of the legal authority and jurisdiction under which the hearing is to be held;

 

4)         A reference to the particular Section of the Act and the rules of the Board involved; and

 

5)         A brief statement of the nature of the matters at issue.

 

d)         Motions shall be directed to the Administrative Law Judge or, in the event that  an Administrative Law Judge has not been named, to the General Counsel. All such motions or requests must be in writing, must state with specificity the reasons or grounds for the motion, and must be served on all parties simultaneously with their filing with the Administrative Law Judge or General Counsel. Motions that would preclude a hearing, such as a motion to dismiss or to refer the matter to arbitration, shall be filed with the Answer.  However, such a motion may be filed at any time with the permission of the Administrative Law Judge or the General Counsel.

 

e)         Unless otherwise provided in the rules of the Board governing specific types of proceedings, the briefing schedule for all motions shall be as follows:

 

1)         Any supporting brief by the moving party shall be filed and served on all other parties simultaneously with the motion.

 

2)         Other parties shall have seven days to file a response and serve that response on all other parties simultaneously with the filing.

 

3)         The parties must seek leave of the Administrative Law Judge to file any additional briefs.  The Administrative Law Judge will allow the filing of additional briefs upon demonstration that material issues which could not have been anticipated have been raised.

 

f)         Requests for continuances must be made in writing, but need not be submitted as formal motions. Requests for continuances will be granted only for good cause shown, such as the unavoidable absence of a person essential to the hearing, and only when the continuance will not unduly delay the hearing. The party requesting the continuance shall state specifically in the motion the reasons that a continuance is being sought and shall state whether the party has discussed the request with all other parties and whether any other party opposes the request. Multiple requests for continuances will be viewed more strictly.

 

g)         The Executive Director may amend the complaint prior to the hearing upon motion of a party or on the Executive Director's own motion. Grounds for amendment will include newly discovered evidence, inadvertent exclusions and new allegations. The parties shall receive reasonable notice of the amendment, and the Respondent shall have 15 days after the service of the amended complaint, unless waived by the Respondent, within which to file an answer to the amended complaint.

 

(Source:  Amended at 41 Ill. Reg. 10574, effective August 1, 2017)

 

Section 1105.110  Parties

 

a)         The party filing an unfair labor practice charge or election objection shall be designated the complainant. Any adverse party shall be designated the respondent.

 

b)         Misnomer of a party shall not be grounds for dismissal; the name of any party may be corrected at any time.

 

(Source:  Amended at 14 Ill. Reg. 1278, effective January 5, 1990)

 

Section 1105.120  Authority of Hearing Officer

 

The Hearing Officer shall have the duty to conduct a fair hearing, to take all necessary action to avoid delay, to maintain order and to ensure development of a clear and complete record. The Hearing Officer shall have all powers necessary to these ends including (but not limited to) the authority to:

 

a)         Hold pre-hearing conferences for settlement, simplification of the issues, or any other related purposes;

 

b)         Enter, on his own motion or motion of a party, such orders as are just when a party fails to comply with any order entered under 80 Ill. Adm. Code 1100, 80 Ill. Adm. Code 1105, 80 Ill. Adm. Code 1110, 80 Ill. Adm. Code 1120, 80 Ill. Adm. Code 1125, 80 Ill. Adm. Code 1130 and 80 Ill. Adm. Code 1135.

 

c)         Regulate the proceedings of the contested case and the conduct of the parties and their counsel;

 

d)         Administer oaths and affirmations or direct the administration of oaths and affirmations by the court reporter transcribing the hearing;

 

e)         Rule upon offers of proof and receive evidence and rule upon objections to the introduction of evidence;

 

f)         Examine witnesses and direct witnesses to testify ;

 

g)         Establish reasonable time limits and guidelines for opening and closing statements based upon the number and complexity of the issues;

 

h)         Establish deadlines and limitations for the filing of post-hearing briefs, including (but not limited to) requiring each party to elect between offering closing arguments or submitting post-hearing briefs simultaneously on a date set by the Hearing Officer;

 

i)          Except as otherwise provided, consider and rule as justice may require upon motions appropriate to an adjudicative proceeding;

 

j)          On motion of a party, to amend a complaint before the hearing concludes to conform to the evidence presented in the hearing; and

 

k)         Issue decisions subject to appeal to the Board.

 

(Source:  Amended at 14 Ill. Reg. 1278, effective January 5, 1990)

 

Section 1105.130  Requests for Documents (Repealed)

 

(Source:  Repealed at 14 Ill. Reg. 1278, effective January 5, 1990)

 

 

Section 1105.140  Pre-Hearing Memorandum

 

a)         The parties shall each file written pre-hearing memoranda with the Administrative Law Judge not less than seven days before the hearing.  The pre-hearing memoranda shall include:

 

1)         A list of all exhibits to be offered by each party, and a statement that the parties have exchanged these exhibits;

 

2)         Objections to the authenticity of any of  the exhibits tendered by all other parties, and the status of any of the exhibits as business records;

 

3)         A list of proposed witnesses,  an estimate of the time that will be required for the direct examination of those witnesses, and a summary of the matters to which they will testify;

 

4)         A joint statement of the uncontested material facts.

 

b)         The parties may submit individual or joint statements of the contested material facts or contested issues of law with the required portions of the pre-hearing memoranda.

 

c)         The Administrative Law Judge, on his or her own motion, may waive the filing of the pre-hearing memorandum in whole or in part when he or she finds that such waiver is needed to avoid unnecessary delay of the hearing or an undue burden to a party.

 

d)         Failure by a party to disclose an exhibit or the identity of a witness may be grounds for a motion by an opposing party or by the Administrative Law Judge for exclusion of that exhibit or witness where offered in a party's case-in-chief or, in the alternative, for a continuance to allow the opposing party time to review the exhibit or determine the nature of the witness' testimony and prepare to meet or counter such evidence.  Such motions shall be granted only upon a showing that the moving party was surprised and placed at a disadvantage by the failure to disclose in the pre-hearing memorandum.  Exhibits and witnesses not listed in the pre-hearing memorandum can be presented for rebuttal or impeachment purposes.

 

(Source:  Amended at 28 Ill. Reg. 8710, effective June 6, 2004)

 

Section 1105.150  Rights of Parties

 

All parties to a contested case hearing shall have the following rights:

 

a)         To appear on their own behalf or to be represented in accordance with 80 Ill. Adm. Code 1100.60;

 

b)         To offer evidence through the testimony of witnesses or through exhibits;

 

c)         To request subpoenas in order to subpoena witnesses or documents for the hearing;

 

d)         To question witnesses offered by other parties;

 

e)         To object to testimony or exhibits offered by other parties; and

 

f)         To make opening statements and to make either closing statements or submit post-hearing briefs simultaneously subject to any limitation established by the Hearing Officer pursuant to Section 1105.100 of this Subpart.

 

(Source:  Amended at 41 Ill. Reg. 10574, effective August 1, 2017)

 

Section 1105.160  Order of Hearing

 

a)         The following shall be the order of all contested case hearings, subject to modification by the Administrative Law Judge for good cause:

 

1)         Presentation, argument, and disposition of motions preliminary to a hearing on the merits of the matters raised in the complaint;

 

2)         Presentation of opening statements;

 

3)         Complainant's case-in-chief;

 

4)         Respondent's case-in-chief;

 

5)         Complainant's case-in-rebuttal;

 

6)         Complainant's closing argument, which may include legal argument;

 

7)         Respondent's closing argument, which may include legal argument;

 

8)         Complainant's rebuttal argument, which may include legal argument;

 

9)         Presentation and argument of motions regarding removal of the case to the Board pursuant to 80 Ill. Adm. Code 1120.40, where applicable; and

 

10)         A schedule of submission of briefs to the Administrative Law Judge or Board pursuant to 80 Ill. Adm. Code 1120.40.

 

b)         The order of the contested case hearing will be modified by the Administrative Law Judge for good cause shown, such as upon motion of a party demonstrating that such modification is necessary because of the unavailability of a necessary witness or an attorney and that the moving party has not caused or contributed to such unavailability.

 

c)         The respondent may, at the close of the complainant's case, move for judgment in favor of the respondent.  If the ruling on the motion is favorable to the respondent, an order dismissing the action shall be entered.  If the ruling on the motion is adverse to the respondent, the respondent may proceed to adduce evidence in support of the respondent's defense.

 

d)         The hearing record in all contested cases shall include:

 

1)         All pleadings (including all notices and responses thereto), motions, briefs, exceptions, and rulings, or decisions by the Administrative Law Judge;

 

2)         All evidence received by the Administrative Law Judge;

 

3)         A statement of all matters of which official notice has been taken;

 

4)         Offers of proof, objections, and rulings thereon;

 

5)         Proposed findings of fact and conclusions of law; and

 

6)         Any ex parte communications prohibited by Section 10-60 of the Illinois Administrative Procedure Act [5 ILCS 100/10-60], but such communications shall not form the basis for any finding of fact.

 

e)         Any findings of fact in decisions issued by the Administrative Law Judge or Board shall be based exclusively on the evidence in the Record and on matters of which official notice has been taken.

 

(Source:  Amended at 28 Ill. Reg. 8710, effective June 6, 2004)

 

Section 1105.170  Conduct of Hearing

 

a)         All hearings under this Subpart shall be public.

 

b)         All witnesses shall be sworn.

 

c)         All testimony shall be recorded stenographically or by other means which adequately preserve the record.  The parties shall be responsible for obtaining their own copies of the transcript from the reporter.  In the event that a party wishes to correct a transcription error in the transcript, the party shall notify the Hearing Officer in writing within seven days of receipt of the transcript and shall simultaneously serve a copy of that notification upon all other parties.

 

d)         A party tendering an exhibit for identification or admission into evidence shall be responsible for providing the original and three copies of the exhibit to the Hearing Officer and one copy to each other party at the time that the exhibit is tendered.

 

(Source:  Amended at 14 Ill. Reg. 1278, effective January 5, 1990)

 

Section 1105.180  Confidentiality

 

a)         Except as provided in subsection (b) of this Section or in the Board's rules relating to the Freedom of Information Act [5 ILCS 140], no Board member or employee of the Board shall produce or present any files, documents, reports, memoranda, or records of the Board in any contested case proceeding held pursuant to the rules of the Board, whether in response to a subpoena duces tecum or otherwise, without the written consent of the Board.  Nor shall any such person testify in behalf of any party in any such proceeding with respect to any information, facts, or other matter coming to his or her knowledge in his or her official capacity or with respect to the contents of any files, documents, reports, memoranda, or records of the Board, whether in answer to a subpoena or otherwise, without the written consent of the Board. The Board will consent upon a demonstration of the absolute necessity of such documents or testimony to the case and the impossibility of obtaining the evidence sought from any other source.

 

b)         Notwithstanding the prohibitions of subsection (a) of this Section, after a witness called by the charging party or the respondent has testified in a hearing upon an unfair labor practice complaint, the Administrative Law Judge shall, upon motion of the opposing party, inspect in camera any statement (as hereinafter defined) of such witness in the possession of the Board.  The Administrative Law Judge shall excise the portions of such statement which, although not relating to the subject matter of the testimony of the witness, do relate to other matters raised by the pleadings.  With such material excised, the Administrative Law Judge shall then direct delivery of such statement to the parties for use on cross-examination and redirect. If, pursuant to such procedure, any portion of such statement is withheld from the parties and a party objects to such withholding, the entire text of such statement shall be preserved by the Administrative Law Judge, and, in the event a party files exceptions with the Board based upon such withholding, shall be made available to the Board for the purpose of determining the correctness of the ruling of the Administrative Law Judge.  If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the Administrative Law Judge shall order it to be delivered directly to the parties for examination and use for the purpose of cross-examination and redirect. The right to inspect any such statements shall be waived if the motion to have the Administrative Law Judge inspect and deliver the statement for use in cross-examination is not made before the witness is excused from the stand.

 

c)         The term "statement" as used in this Section means:

 

1)         A written statement made by said witness and signed or otherwise adopted or approved by him; or

 

2)         A stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness to an agent of the party obligated to produce the statement and recorded contemporaneously with the making of such oral statement.

 

(Source:  Amended at 28 Ill. Reg. 8710, effective June 6, 2004)

 

Section 1105.190  Admissible Evidence

 

a)         The Hearing Officer shall follow the rules of evidence as applied in the courts of Illinois pertaining to civil actions.  In addition, the Hearing Officer will receive evidence which is material, relevant, and would be relied upon by reasonably prudent persons in the conduct of their affairs provided that the rules relating to privileged communications and privileged topics shall be observed.

 

b)         Evidence may be presented in the form of testimony, exhibits, or stipulations.

 

Section 1105.200  Official Notice

 

The Hearing Officer and the Board may take official notice of all facts of which Illinois courts may take judicial notice and of other facts within the specialized knowledge and experience of the Board.

 

Section 1105.210  Examination of Hostile Party or Adverse Witness

 

The parties to a hearing under this Subpart shall be entitled to call hostile or adverse witnesses as provided by Section 2-1102 of the Civil Practice Law [735 ILCS 5/2-1102].

 

(Source:  Amended at 28 Ill. Reg. 8710, effective June 6, 2004)

 

Section 1105.220  Decisions and Exceptions (Repealed)

 

(Source:  Repealed at 41 Ill. Reg. 10574, effective August 1, 2017)

 

Section 1105.230  Motions for Production of Documents (Repealed)

 

(Source:  Repealed at 41 Ill. Reg. 10574, effective August 1, 2017)