Section 1120.10  General Statement of Purpose

 

The regulations contained in this Part detail the procedures for initiating, processing and resolving charges that an employer or an employee organization has committed, or is committing, an unfair labor practice in violation of Sections 14(a) and 14(b) of the Act.

 

Section 1120.20  Filing of a Charge

 

a)         An unfair labor practice charge may be filed with the Illinois Educational Labor Relations Board (the Board) by an employer, an employee organization, or an employee.

 

b)         Unfair labor practice charges shall be on a form developed by the Board, shall be signed by the charging party, and shall contain:

 

1)         the name, address and affiliation, if any, of the charging party;

 

2)         the name, address and affiliation, if any, of the respondent;

 

3)         a clear and complete statement of facts supporting the alleged unfair labor practice, including dates, times and places of occurrence of each particular act alleged, and the Sections of the Illinois Educational Labor Relations Act [115 ILCS 5] (the Act) alleged to have been violated; and

 

4)         a statement of the relief sought, provided that the statement shall not limit the Board's ability to award relief based on the record.

 

c)         The Board shall serve a copy of the charge upon the respondent.

 

d)         Unfair labor practice charges may be filed no later than six months after the alleged unfair labor practice occurred.

 

e)         A charging party may withdraw without prejudice a charge at any time prior to the issuance of a complaint.  After issuance of a complaint, a charging party may withdraw a charge only with the approval of the Executive Director.  The Executive Director shall approve the withdrawal when he or she finds that the withdrawal is consistent with the Act and this Part and was not obtained fraudulently or through duress. The withdrawal of a charge after the issuance of a complaint shall be with prejudice.

 

(Source:  Amended at 41 Ill. Reg. 10614, effective August 1, 2017)

 

Section 1120.30  Charge Processing and Investigation, Complaints and Responses

 

a)         The Board hereby delegates to its Executive Director the authority to investigate charges and issue complaints.

 

b)         Upon receipt of a charge, the Executive Director shall investigate the charge.  Procedures for investigating requests for injunctive relief are set forth in Section 1120.60.

 

1)         The charging party shall submit to the Executive Director all evidence relevant to or in support of the charge.  The evidence may include documents and affidavits.

 

2)         The respondent shall submit to the Executive Director a complete account of the facts, a statement of its position in respect to the allegations set forth in the charge and all relevant evidence in support of its position.  The evidence may include documents and affidavits.

 

3)         The Executive Director may hold an investigatory conference with the parties when the Executive Director determines that the investigatory conference will facilitate efforts to explore whether the charge can be resolved informally or the facts stipulated and to further develop the record for determination of whether the charge states an issue of law or fact.

 

4)         Motions shall be directed to the Executive Director.  All motions must be in writing, must state with specificity the reasons or grounds for the motion, and must be served on all other parties simultaneously with their filing with the Executive Director.  Other parties shall have seven days to file a response and serve that response on all other parties simultaneously with the filing with the Executive Director.

 

5)         If the Executive Director concludes that the investigation has established that there is an issue of law or fact sufficient to warrant a hearing, he or she shall issue a complaint (Section 15 of the Act).  In determining whether the issues of law or fact are sufficient to warrant a hearing, the Executive Director shall consider whether the charge states a cause of action upon which relief can be granted under the Act and whether the facts provided in the course of the investigation state a prima facie case.  The complaint shall specify the charges and shall be served on the respondent and the charging party.

 

6)         If the Executive Director concludes that the investigation has established that there is not an issue of law or fact sufficient to warrant a hearing, the Executive Director shall dismiss the charge.  In determining whether the issues of law or fact are sufficient to warrant a hearing, the Executive Director shall consider whether the charge states a cause of action upon which relief can be granted under the Act and whether the facts provided in the course of the investigation state a prima facie case. Notice of dismissal shall be served on the respondent and the charging party.

 

c)         The charging party may file exceptions to the Executive Director's dismissal of the charge and briefs in support of those exceptions. Exceptions must be filed with the Board no later than 14 days after service of the notice of dismissal. Copies of all exceptions and supporting briefs shall be served upon all other parties and a certificate of service shall be attached.  Any party to the proceeding may file a response to any exceptions and supporting briefs within 14 days from receipt of a party's exceptions and supporting brief.  The response shall be filed with the Board and served on all parties.  The Board may review the Executive Director's decision on its own motion. In reviewing the exceptions, the Board will consider whether the Executive Director's decision is consistent with the Act and this Part and whether there has been an abuse of discretion.

 

d)         Whenever an unfair labor practice complaint is issued, the respondent must file an answer within 15 days after service of the complaint.

 

1)         The answer shall include a specific admission, denial or explanation of each allegation of the complaint or, if the respondent is without knowledge of the allegation, it shall so state and that statement shall operate as a denial.  Admissions or denials may be made to all or part of an allegation, but shall fairly meet the allegation.

 

2)         The answer shall also include a specific, detailed statement of any affirmative defenses, including, but not limited to, res judicata, mootness or waiver. An affirmative defense is not waived if it is not included in the answer.

 

3)         Failure to file a timely answer shall be deemed an admission of all allegations in the complaint.  Failure to respond to any particular allegation of the complaint shall be deemed to be an admission of that particular allegation. Filing of a motion will not stay the time for filing an answer.

 

4)         When a party has failed to file a timely answer, the Administrative Law Judge shall issue an order to show cause why allegations of the complaint should not be deemed admitted.  Leave to file a late answer may be granted by the Administrative Law Judge in the absence of prejudice to the other parties if substantial justice is being done between the parties and if it is reasonable, under the circumstances, to compel the other parties to go to hearing on the merits. If leave to file a late answer is granted, the answer shall be deemed timely.

 

(Source:  Amended at 41 Ill. Reg. 10614, effective August 1, 2017)

 

Section 1120.40  Hearings

 

a)         Upon the issuance of a complaint, the Executive Director shall set the matter for hearing before an Administrative Law Judge.  All parties shall be given at least five days' notice of the hearing.  The notice shall comply with Section 10-25(a) of the Illinois Administrative Procedure Act [5 ILCS 100].

 

b)         Interested persons who wish to intervene in the hearing shall direct such requests to the Administrative Law Judge.  The request shall be in writing and shall state the grounds for intervention.  The Administrative Law Judge shall have discretion to grant or deny the request for intervention.  In determining whether to grant the request, the Administrative Law Judge shall base his decision on the timeliness of the request, the degree to which the person requesting intervention has a real interest at stake, and the ability of the parties to represent the interests of the person requesting intervention.

 

c)         The Board will encourage Administrative Law Judges to schedule voluntary prehearing conferences with the parties when it appears that those conferences will aid in narrowing or resolving issues.

 

d)         On motion of a party made prior to the close of the hearing and with the approval of the General Counsel, the Administrative Law Judge may certify an issue to the Board for a ruling prior to the issuance of the Administrative Law Judge's recommended decision and order.  An issue may be certified to the Board only if the Administrative Law Judge finds that the case involves an issue of law as to which there is substantial ground for difference of opinion and that an immediate appeal on the issue may materially advance the termination of the case.  The Administrative Law Judge shall rule on the motion within seven days after a response to the motion is received or is due pursuant to 80 Ill. Adm. Code 1105.100(e)(2).  The parties may file briefs concerning the certified issue no later than 21 days after the Administrative Law Judge's certification.  Within 60 days after the last day that briefs must be filed, the Board shall rule on the certified issue or shall remand the issue to the Administrative Law Judge upon a finding that certification of the issue is inappropriate.  Intermediate rulings of the Administrative Law Judge shall not otherwise be subject to interlocutory appeal.  Parties may raise objections to intermediate rulings in their exceptions to the Administrative Law Judge's recommended decision or, if there is no recommended decision, in their briefs to the Board.

 

e)         The Complainant shall present the case in support of the complaint. The respondent may present evidence in defense against the charges (Section 15 of the Act).

 

f)         The Administrative Law Judge shall obtain a full and complete record by inquiring into all matters in dispute.  The record shall be obtained either by evidentiary hearing or stipulation.  Immediately prior to the close of the record, one or more parties may file motions to remove the case to the Board for decision.  Responses to these motions may be filed as directed by the Administrative Law Judge.  Within 14 days after the close of the record, the Administrative Law Judge shall rule on the motions.  The Administrative Law Judge may also order the case removed to the Board on his or her own motion within 14 days after the close of the record.  If the Administrative Law Judge orders a case removed, he or she shall certify that there are no determinative issues of fact that require  an Administrative Law Judge's recommended decision.

 

g)         Within seven days after removal, a party may move the Board to remand the case to the Administrative Law Judge, identifying in detail the material factual issues in dispute.  If the Board fails to rule on the motion within 60 days, the motion to remand will be deemed denied.  In cases removed to the Board, the Board shall remand the case if at any time it determines that the case presents issues of material fact requiring an Administrative Law Judge's recommended decision. 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.

 

h)         In cases not removed to the Board and in cases remanded to the Administrative Law Judge, the Administrative Law Judge shall file and serve on the parties a recommended decision giving the reasons for the decision as promptly as possible based on the length of the record and the complexity of the issues involved.

 

(Source:  Amended at 41 Ill. Reg. 10614, effective August 1, 2017)

 

Section 1120.50  Consideration by the Board

 

a)         Exception and Responses

 

1)         In cases in which there is a recommended decision, the parties may file exceptions to the Administrative Law Judge's recommendation and briefs in support of those exceptions.  Briefs and exceptions shall be filed with the General Counsel no later than 21 days after service of the recommendation.  Copies of all exceptions and supporting briefs shall be served upon all other parties, and a certificate of service shall be attached.

 

2)         Any party to the proceeding may file a response to any exceptions and supporting briefs within 21 days from receipt of a party's exceptions and supporting brief. The response shall be filed with the General Counsel. The response shall be served on all parties, and a certificate of service shall be attached.

 

3)         A party may also file cross-exceptions and a supporting brief within 14 days from receipt of another party's exceptions and supporting brief.  Copies of the cross-exceptions shall be filed with the General Counsel and served on all other parties, and a certificate of service shall be attached. 

 

4)         Any other party may file a response to the cross-exceptions and supporting brief within 14 days from receipt of the cross-exceptions and supporting brief.  The response shall be filed with the General Counsel and served upon all parties, and a certificate of service shall be attached.

 

5)         If no exceptions have been filed within 21 days after service of the Administrative Law Judge's recommended decision, the parties will be deemed to have waived their exceptions.  If no cross-exceptions have been filed within 14 days after receipt of another party's exceptions and supporting brief, the parties will be deemed to have waived their cross-exceptions.

 

b)         The Board will review the Administrative Law Judge's recommendation if a party has filed exceptions or on the Board's own motion. In cases removed to the Board, the parties will file briefs in the manner directed by the Board, the manner to include the dates on which briefs will be due and the subjects to be addressed in the briefs, as specified by the Board. In cases in which exceptions are filed and those that are removed to the Board, the Board shall issue and serve on all parties a written decision and order that includes its reasons for its decision.

 

c)         If the remedy ordered after a finding of an unfair labor practice includes the posting of a notice, the notice may be posted physically or by other means similarly calculated to provide proper notice.  The means of posting shall be agreed to by the parties and the Executive Director.  If the parties and the Executive Director are not able to agree on the means of posting, the Executive Director shall determine the means of posting.

 

(Source:  Amended at 41 Ill. Reg. 10614, effective August 1, 2017)

 

Section 1120.60  Requests for Preliminary Relief

 

The charging party may request the Board to seek preliminary relief pursuant to Section 16(d) of the Act.  The charging party will provide the basis for and evidence in support of its request for injunctive relief when it files its charge.  The Executive Director will request the charged party to submit evidence in support of its position.  The charging party shall have the burden of demonstrating to the Board that if preliminary relief is not sought it will suffer irreparable harm and that the remedies available from the Board will be inadequate.

 

(Source:  Amended at 14 Ill. Reg. 1322, effective January 5, 1990)

 

Section 1120.70  Compliance Procedures

 

a)         The compliance procedures set forth in this Section shall commence once a respondent:

 

1)         has failed to file exceptions to a Recommended Decision and Order of an Administrative Law Judge;

 

2)         has failed to appeal a final order of the Board; or

 

3)         when the appellate process initiated by a party after a final Board order has been exhausted and there remains an order requiring a respondent to take certain affirmative action or to refrain from engaging in any action.

 

b)         If, upon the occurrence of any of the events designated in subsection (a), a party asserts that compliance has not occurred, a compliance investigation shall be conducted.

 

c)         If the investigation discloses that there are no issues of law or material fact as to whether compliance has occurred, the Executive Director shall issue a Recommended Decision and Order determining whether compliance has occurred.  If there is an issue of law or material fact as to whether compliance has occurred, a compliance hearing shall be conducted.

 

d)         The compliance hearing shall be conducted by the Executive Director or his or her designee and shall be conducted in accordance with the Board's rulesfor hearing procedures in contested cases (80 Ill. Adm. Code 1105.90 through 1105.230).  At the hearing, the parties to the matter shall be afforded the opportunity to present testimony, documents, affidavits and/or any other information, in addition to their positions, on the matter of respondent's compliance with the order.  If backpay is at issue, the comlainant shall present a specification of the amount due, supported by evidence if necessary.  The respondent shall have the burden of proving that the backpay claimant has failed to mitigate damages or is not entitled to backpay for any other reason.  The subpoena power shall continue during compliance proceedings. 

 

e)         Within 30 days after the compliance hearing described in subsection (d),  the Executive Director or his or her designee shall cause to be served upon the parties a Recommended Decision and Order in which all issues of law and all issues of fact bearing on compliance with the order shall be resolved.  The 30-day period may be extended upon agreement of the parties.

 

f)         Exceptions and Responses

 

1)         Parties may file exceptions to the Executive Director's recommendation and briefs in support of those exceptions no later than 14 days after receipt of the recommendation.  Copies of all exceptions and briefs shall be served upon all other parties and a certificate of service shall be attached. 

 

2)         Any party to the proceeding may file a response to any exceptions and supporting briefs within 14 days from receipt of a party's exceptions and supporting brief.  The response shall be filed with the Board and served on all parties. 

 

3)         A party may also file cross-exceptions and a supporting brief within 14 days from receipt of another party's exceptions and supporting brief.  Copies of the cross-exceptions and supporting brief shall be served upon all other parties and a certificate of service shall be attached. 

 

4)         Any other party may file a response to the cross-exceptions and supporting brief within 14 days from receipt of the cross-exceptions and supporting brief.  The response shall be filed with the Board and served upon all parties, and a certificate of service shall be attached.

 

5)         If no exceptions have been filed within 14 days after service of the Executive Director's recommendation, the parties will be deemed to have waived their exceptions.  If no cross-exceptions have been filed within 14 days after receipt of another party's exceptions and supporting brief, the parties will be deemed to have waived their cross-exceptions. 

 

g)         The Board will review the Executive Director's recommendation upon request by a party or on its own motion.

 

(Source:  Amended at 41 Ill. Reg. 10614, effective August 1, 2017)

 

Section 1120.80  Sanctions

 

a)         The Board's order may, in its discretion, also include an appropriate sanction, based on the Board's rules and regulations, if the other party has made allegations or denials without reasonable cause and found to be untrue or has engaged in frivolous litigation for the purpose of delay or needless increase in the cost of litigation.  The State of Illinois or any agency thereof shall be subject to these provisions in the same manner as any other party. (Section 15 of the Act)

 

b)         The Board may award sanctions for such written allegations or denials, including statements stenographically recorded during the course of Board proceedings.

 

c)         The sanction may include an admonition or reprimand; striking an offending allegation or denial; an order to pay the other party or parties' reasonable expenses including costs and reasonable attorney's fees (Section 15 of the Act) or an appropriate portion thereof; and/or any other appropriate sanction.  Sanctions are to be awarded only against a party or parties to the proceeding.

 

d)         Any party to an unfair labor practice proceeding may move for sanctions. The motion for sanctions must be a succinct statement identifying the allegations and/or denials and/or incidents of frivolous litigation alleged to be subject to sanctions, with citations to the record, and succinct arguments.  The party subject to the motion for sanctions shall have 14 days after service of the motion to respond or withdraw the paper or position that is the basis of the motion.  Neither the motion for sanctions nor the response may be used as an additional brief on the merits of the underlying case.

 

1)         Motions for sanctions may be filed with the Executive Director while an unfair labor practice charge is pending before the Executive Director.  These motions shall be filed no later than 7 days after receipt of the Executive Director's notice that investigation of the unfair labor practice charge has been completed or that a party has withdrawn the unfair labor practice charge. Sanctions before the Executive Director may only be sought for instances of frivolous litigation.

 

2)         Once an unfair labor practice complaint has been issued, motions for sanctions may be filed with the Administrative Law Judge or, in the event that an Administrative Law Judge has not been named, with the General Counsel, while an unfair labor practice complaint is pending before the Administrative Law Judge or the General Counsel.  These motions shall be filed no later than 7 days after receipt of the last post-hearing brief scheduled to be filed, or no later than 7 days after the close of the hearing, if no briefs are to be filed.  Sanctions before the Administrative Law Judge or General Counsel may be sought for both allegations or denials made without reasonable cause and found to be untrue and/or instances of frivolous litigation.

 

3)         Once the Administrative Law Judge has issued a Recommended Decision and Order, or the Executive Director has issued a Recommended Decision and Order dismissing an unfair labor practice charge, the Recommended Decision and Order is pending before the Board.  These motions shall be filed no later than 7 days after receipt of the last brief scheduled to be filed with the Board, or no later than 7 days after oral argument before the Board, if argument occurs after all briefing is completed.  Sanctions before the Board may be sought for both allegations or denials made without reasonable cause and found to be untrue and/or instances of frivolous litigation.

 

e)         A party may request sanctions from the Board for an allegation or denial made without reasonable cause and found to be untrue (Section 15 of the Act) even though it did not move for sanctions on that allegation or denial before the Administrative Law Judge, and even though the Administrative Law Judge did not recommend sanctions on the allegation or denial.

 

f)         A party may not request sanctions from the Board for alleged frivolous litigation for the purpose of delay or needless increase in the cost of litigation before the Executive Director or Administrative Law Judge, unless it requested sanctions from the Executive Director or Administrative Law Judge as to the alleged incident of frivolous litigation, or unless the Executive Director or Administrative Law Judge recommended sanctions as to the alleged incident of frivolous litigation.

 

g)         Except as provided in subsection (h), an order for sanctions shall be included in the Executive Director's Recommended Decision and Order, the Administrative Law Judge's Recommended Decision and Order, or the Board's Opinion and Order.

 

h)         If neither party has moved for sanctions, the Executive Director, Administrative Law Judge, or Board may sua sponte issue an Order to Show Cause why this Part has not been violated.  The party or parties to whom the Order to Show Cause is directed shall have 14 days from the service of that Order to file a response.  Any other party or parties shall have 14 days from service of that response within which to file a reply.  The Order to Show Cause shall recite the conduct or circumstances at issue.

 

i)          An order leveling sanctions shall recite the conduct or circumstances for which sanctions are sought, and explain the basis for the sanction imposed.

 

j)          These amendments apply to allegations or denials and frivolous litigation occurring on or after January 1, 1992. 

 

(Source:  Amended at 41 Ill. Reg. 10614, effective August 1, 2017)

 

Section 1120.90  Processing of Employee Dues in Unfair Labor Practice Charges Involving Unlawfully Collected Dues

 

a)         Unfair labor practice charges that an employee organization has unlawfully collected dues from an educational employee in violation of the Act shall be filed and processed in accordance with this Section.

 

b)         In cases in which an educational employee alleges that an employee organization has unlawfully collected dues, the educational employer shall continue to deduct the employee’s dues from the employee's pay, but shall transmit the dues to the Board for deposit in an escrow account maintained by the Board (Section 11.1(g) of the Act), notwithstanding that the employee organization may maintain an escrow account in accordance with subsections (c)-(e) and the employee organization has notified the employer of that account.

 

c)         An employee organization may maintain an escrow account for the purpose of holding dues deductions to which employees have objected.  If the escrow account is maintained, the employee organization must notify the employer of that account.

 

d)         If the employee organization maintains an escrow account in accordance with subsection (c), the employer shall transmit the entire amount of dues to the employee organization, and the employee organization shall hold them in escrow.

 

e)         An escrow account maintained by an employee organization shall meet the following standards:

 

1)         The account shall be maintained in a federally insured financial institution.

 

2)         The account shall earn interest of at least the rate provided by commercial banks for regular passbook savings accounts.

 

3)         If the account combines the dues of more than one objector, separate records shall be kept of each objector's dues, prorating the interest earned on the account.

 

4)         The escrow account may contain the fees of objecting employees in different bargaining units.

 

5)         Any charges resulting from a financial institution for the cost of maintaining an escrow account shall be borne by the employee organization.

 

f)         For the purpose of this Section, "employee organization" includes local exclusive representatives and their State, national, international, and parent organizations and affiliates.

 

(Source:  Added at 47 Ill. Reg. 19324, effective December 21, 2023)