Section 1125.10  General Statement of Purpose

 

a)         The Illinois Educational Labor Relations Board (Board) finds that Sections 3(a), 11, and 14(a)(1) and (b)(1) of the Illinois Educational Labor Relations Act (the Act) [115 ILCS 5/3(a), 11, 14(a)(1) and (b)(1)] govern the collection and/or expenditure of fair share fees over an employee's objection.  The procedures in this Part provide the exclusive method for handling fair share fees upon the filing of an objection by an employee.  Failure to abide by these procedures violates Section 14(a)(1) and (b)(1) of the Act.  The nature of this unfair labor practice requires that special procedures be adopted for its efficient resolution.

 

b)         The procedures set forth in this Part do not preclude the filing of unfair labor practice charges pursuant to 80 Ill. Adm. Code 1120 alleging violations of Section 11 of the Act resulting from fees in excess of the dues uniformly required of members or fees for contributions related to the election or support of any candidate for political office  (Section 11 of the Act).

 

(Source:  Amended at 28 Ill. Reg. 7984, effective May 28, 2004)

 

Section 1125.20  Notice of Fair Share Fees

 

a)         At least 14 calendar days prior to commencement of payroll deductions of fair share fees, the exclusive representative shall provide notice to all nonmembers of the fair share fee and the right to file an objection.  The notice shall be provided to nonmembers in a manner calculated to provide proper notice, which may include personal delivery, notice by mail, or notice by posting in a place where employee notices are customarily posted or, if no such place exists, posting in a conspicuous place.  The notice of the fair share fee may also be provided to nonmembers electronically unless otherwise requested.

 

b)         Notice shall be on a form developed by the Board or a form developed by the exclusive representative and shall contain the following information:

 

1)         the names of the employer and exclusive bargaining representative;

 

2)         the effective date and duration of the collective bargaining agreement authorizing the fair share fee;

 

3)         the amount of the fair share fee, expressed either as a dollar amount or as a percentage of regular union dues, and the period for which it is assessed;

 

4)         a description of how the fair share fee was calculated, including the major categories of expenses made by the exclusive representative during the most recent fiscal year, verified by an independent auditor;

 

5)         a statement that the nonmember has the right under the Act to object to the amount of the fee by filing an objection with the Board and that the nonmember can obtain additional information about the objection procedure from the Board; and

 

6)         a statement advising fee payers that employees who object to payment of a fair share fee because of bonafide religious tenets or teaching of a church or religious body of which such employees are members may pay an amount equal to their proportionate share, determined under a proportionate share agreement, to a non-religious charitable organization (Section 11 of the Act).  When the union and employee are unable to agree on the non-religious charitable organization, the organization will be determined pursuant to the procedures in Section 1125.80(i).

 

c)         Whenever there is a change in the amount of the fair share fee, an updated notice shall be provided to nonmembers in a manner consistent with subsection (a).

 

d)         Upon request, the employer shall give the exclusive representative access to appropriate bulletin boards and other locations for purposes of posting the notice required by this Section.

 

e)         The exclusive representative shall certify in writing to the employer that notice has been provided to nonmembers in accordance with this Section.  No payroll deductions of fair share fees shall be made until at least 14 calendar days after that certification.

 

f)         Once notice of the fair share fee has been provided to a newly hired employee in accordance with this Section, fair share fees may be collected from the employee 14 calendar days after the employee's first day of employment.

 

g)         Compliance with this Section does not mean that the exclusive representative has complied with all legal notice requirements as may be required by judicial decisions.  The legal responsibility for providing adequate notice remains with the exclusive representative.

 

(Source:  Amended at 41 Ill. Reg. 10628, effective August 1, 2017)

 

Section 1125.30  Objections to Fair Share Fees

 

a)         A nonmember may file an objection to the fair share fee with the Board no later than six (6) months after the first payroll deduction of the fair share fee.

 

b)         The objection shall be on a form developed by the Board and shall contain the following:

 

1)         the name, address and telephone number of the employee filing the objection and of the employee's representative, if any;

 

2)         the name, address and telephone number of the exclusive representative;

 

3)         the name, address and telephone number of the employer;

 

4)         the amount of the fair share fee certified by the exclusive representative, and the amount disputed by the employee.  The employee may choose to object to the entire amount of the fee by so stating.

 

5)         a brief description, to the extent known, of the bargaining unit covered by the collective bargaining agreement.

 

c)         The Board shall serve the objection on the employer and the exclusive representative in accordance with 80 Ill. Adm. Code 1100.20(c).

 

d)         An objection is effective on the date it is filed with the Board.  Nonmembers waive their objections to any fees deducted from their pay prior to their filing of objections, unless they can establish that they were not properly notified of the fees as required by Section 1125.20 of this Part.  Objections are effective only for the year for which the fair share fee is sought.

 

(Source:  Amended at 13 Ill. Reg. 1784, effective January 31, 1989)

 

Section 1125.40  Escrow Accounts

 

a)         Upon service of an objection, the employer shall continue to deduct the fair share fee from the objecting employee's pay, but shall not pay the fee to the exclusive representative, unless the exclusive representative maintains an escrow account in accordance with subsections (b) and (c) and the exclusive representative has so notified the employer. The employer shall transmit the fee to the Board which shall hold the fee in escrow in an account established for that purpose. If the objecting employee has disputed only part of the fee, the employer shall pay the undisputed amount to the exclusive representative and shall transmit the disputed amount to the Board.  The employer shall continue to transmit all such fees to the Board until further order of the Board.

 

b)         An exclusive representative may maintain an escrow account for the purpose of holding fair share fees to which employees have objected.  If an exclusive representative maintains such an account, the employer shall continue to transmit an objecting employee's fair share fee to the exclusive representative.  Upon service of an objection, the exclusive representative shall deposit the objecting employee's fair share fee into the escrow account which it maintains.  If the objecting employee has disputed only part of the fee, the exclusive representative shall pay the disputed amount into the escrow account and may retain the undisputed amount.  The exclusive representative shall continue to pay into the escrow account all fair share fees or the disputed portion of the fees until further order of the Board.

 

c)         An escrow account maintained by an exclusive representative 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 fair share fees of more than one objector, separate records must be kept of each objector's fee, 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 exclusive representative.

 

d)         Within 45 days after service of the objection, the exclusive representative may file a motion to reduce the amount of the escrow.  The motion shall be filed with the Executive Director.  The exclusive representative shall attach to the motion any documents it wishes to have considered in support of this motion. The motion and supporting documents shall be served on the objecting employee and the employer in accordance with 80 Ill. Adm. Code 1100.20(d).  The exclusive representative shall have the burden of demonstrating that its proposed reduction in the amount of the escrow will clearly not prejudice the constitutional and statutory rights of the objecting employee.

 

e)         The objecting employee shall have 15 days computed in accordance with 80 Ill. Adm. Code 1100.30 to respond. The response shall be served on the exclusive representative and the employer in accordance with 80 Ill. Adm. Code 1100.20(d).

 

f)         If the Executive Director determines that reduction of the amount of the escrow will clearly not prejudice the constitutional and statutory rights of the objecting employee, he shall order the escrow reduced to an amount necessary to protect the rights of the parties in a written decision containing his reasons.  The order shall be served on the objecting employee, the exclusive representative, and the employer. Thereafter, the employer shall transmit the reduced escrow amount to the Board and the remainder to the exclusive representative, unless the exclusive representative maintains an escrow account in accordance with subsections (b) and (c). If the exclusive representative maintains such an escrow account, the exclusive representative shall pay the reduced escrow amount into the escrow account and may retain the remainder.

 

g)         In making the determination, the Executive Director will consider court decisions interpreting the constitutional and statutory rights of employees, patterns of expenditures by the exclusive representative, prior adjudications involving the exclusive representative, and other relevant factors as substantiated by material submitted by the parties.

 

h)         The Executive Director's decision on the motion may be appealed to the Board.  Notice of appeal, together with any supporting briefs, shall be filed no later than 15 days after service of the Executive Director's decision.  Parties may file briefs in accordance with 80 Ill. Adm. Code 1105. Subpart B.  The Board shall review the Executive Director's decision to determine whether it is in accordance with the Act, this Part, and the evidence submitted by the parties.

 

(Source:  Amended at 14 Ill. Reg.  2873, effective February 9, 1990)

 

Section 1125.50  Responses to Objections (Repealed)

 

(Source:  Repealed at 13 Ill. Reg. 1784, effective January 31, 1989)

 

Section 1125.60  Consolidation of Fair Share Fee Objections

 

The Board shall consolidate in a single proceeding all fair share fee objections involving the same bargaining unit.  The Board shall consolidate objections involving two or more bargaining units whenever it determines that the exclusive representatives are affiliated with a common employee organization, the exclusive representatives use similar methods for determining fair share fees, the consolidation would not prejudice the constitutional and statutory rights of the objecting employees, and the consolidation would efficiently and expeditiously resolve the objections.

 

Section 1125.70  Investigation of Fair Share Fee Objections

 

a)         The Board's Executive Director shall investigate and process all fair share fee objections and shall issue complaints or dismiss objections in accordance with 80 Ill. Adm. Code 1120.30(a) and (b).

 

b)         If the Executive Director dismisses a fair share fee objection, the objecting employee may file exceptions with the Board within fourteen (14) days of the date of receipt of the Executive Director's decision.  The exclusive representative may file a response within fourteen (14) days of receipt of the exceptions.  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 (e.g., failure to issue a complaint when questions of law or fact exist).

 

(Source:  Amended at 13 Ill. Reg. 1784, effective January 31, 1989)

 

Section 1125.80  Hearings

 

a)         Except as otherwise provided in this Section, hearings on fair share fee objections shall proceed in the same manner as hearings in both contested cases, as set forth in 80 Ill. Adm. Code 1105, Subpart B, and hearings in unfair labor practice proceedings, as set forth in 80 Ill. Adm. Code 1120.40.

 

b)         The Executive Director shall appoint a fair share Administrative Law Judge to hold an evidentiary hearing and render a Recommended Decision and Order on the fair share fee objections.

 

c)         The burden of proof shall be on the exclusive representative.

 

d)         The hearing set forth in subsection (b) shall commence no later than 60 days from the last day for filing an objection pursuant to Section 1125.30(a).  When objections involving two or more bargaining units are consolidated pursuant to Section 1125.60, the hearing shall commence no later than 60 days from the last day for filing an objection for any of the bargaining units.  A Recommended Decision and Order shall be issued within 60 days after the close of the record, unless additional time (up to 30 days) is required due to the length of the record and/or the complexity of the issues involved.  The close of the record does not occur until the Administrative Law Judge orders that it be closed, either at the hearing or after holding the record open for a period for purposes such as allowing a party to provide additional evidence or to attempt to settle objections.  The Recommended Decision and Order or a summary of the Recommended Decision and Order shall be served on all parties to the proceeding. A party receiving a summary of the Recommended Decision and Order shall be entitled to receive a copy of the full Recommended Decision and Order on request.

 

e)         Within 21 days after receipt of the Recommended Decision and Order, any party may file exceptions and briefs in support of those exceptions with the General Counsel.  A party may also file cross-exceptions and a supporting brief within 14 days after receipt of another party's exceptions and supporting brief.  If no exceptions have been filed within 21 days after service of the Recommended Decision and Order, 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.

 

f)         If timely exceptions are filed, the Board shall issue and serve on all parties a copy or a summary of its decision and order. A party receiving a summary of the Board's decision and order shall be entitled to receive a copy of the full decision and order on request.

 

g)         Upon direction of the Board, the employer shall cease transmitting the fee to the Board and shall deduct, from the objector's pay, the amount determined by the Board to be appropriate and pay same to the exclusive representative.  The Board shall disburse the amount held in escrow to the employee and the exclusive representative in accordance with its determination in the case.  Interest earned by disputed fees during the time they were held in escrow shall be apportioned pro rata between the employee and the exclusive representative.

 

h)         When an objector to whom funds from the escrow account are due cannot be located within the period set forth in the Uniform Disposition of Unclaimed Property Act [765 ILCS 1025], the funds will be presumed abandoned and will be paid to the State Treasurer in accordance with the provisions of that Act.

 

i)          When, in the case of a religious objection to fair share fees, the parties are unable to agree on a non-religious charitable organization to receive an amount equal to the employee's proportionate share even after receiving the Board's approved list of charitable organizations established pursuant to Section 11 of the Act, the Board will provide the parties with a panel of three charitable organizations taken from the list.  If the parties still cannot agree on a charitable organization, the Board will select a charitable organization from the panel.

 

(Source:  Amended at 41 Ill. Reg. 10628, effective August 1, 2017)

 

Section 1125.90  Consideration by the Board (Repealed)

 

(Source:  Repealed at 13 Ill. Reg. 1784, effective January 31, 1989)

 

Section 1125.100  Internal Review Procedure

 

Nothing in this Part shall preclude an exclusive representative from establishing an internal procedure to review challenges to its fair share fees.

 

(Source:  Added at 13 Ill. Reg. 1784, effective January 31, 1989)