Former spokesman bashes Bush in new book

Former spokesman bashes Bush in new book – Yahoo! News

As I read and listened to the loyalists of President Bush attempt to discredit this book, I think about how Illinois Governor Blagojevich’s “Sheridan Project” at Sheridan Correctional Center loyalist attempt to discredit me. It seems as if our social world does not want to look at the issues, but would rather look at the clouds hiding the issues while they quietly correct the problems brought to the surface.

Exposing Washington’s spinning permanent campaign

Exposing Washington’s spinning permanent campaign – Yahoo! News

As I listened to the loyalists of President Bush attempt to discredit this book, I think about how Illinois Governor Blagojevich’s “Sheridan Project” at Sheridan Correctional Center loyalist attempt to discredit me. It seems as if our social world does not want to look at the issues, but would rather look at the clouds hiding the issues while they quietly correct the problems brought to the surface.

AFSCME (the union):Illinois’ Sheridan Correctional Center Strike of June 6, 2006

Reference: National Legal and Policy Center “Union Corruption and the Law” by Phillip B. Wilson located on their website at http://www.nlpc.org/

Update: January 2, 2007

While researching my issues for the upcoming litigation in Federal Court against AFSCME, specifically Local 472, I discovered a tactic this union is possibly pursuing with the new vendor. I believe this union is pursuing a “closed shop” with the new vendor instead of an “open shop.”

The term “closed shop” is used to signify an establishment employing only members of a labor union. The union shop, a closely allied term, indicates a company where employees do not have to belong to a labor union when hired but are required to join within a specified period of time in order to keep their jobs. In the alternative, an employment “open shop”, strictly speaking, is one that does not restrict its employees to union members or membership.

I am not sure why the new vendor would subject its employees to the strict standard of a “closed shop”, but it is worth investigating since it will impact my employment and salary. The new vendor taking a position of an “open shop” with AFSCME can be negotiated, especially since AFSCME does not want to adopt the doctrine of cultural diversity in its leadership or Board leading to fairness and equality for the employees (counselors) it plans to represent at Sheridan Correctional Center (Sheridan).

Many states either by legislation or by court decision have banned the “closed shop.” In 1947 the Taft-Hartley Labor Act declared the “closed shop” illegal. Arguments in favor of the “open shop” are that forcing unwilling workers to pay union dues or agency fees is an infringement of their rights; that union membership is sometimes closed to certain workers or the initiation and/or agency fee is so high as to be an effective bar to membership; and that “employers” are deprived of the privilege of hiring competent workers or firing incompetent ones.

Presently, AFSCME does not have enough votes to call a strike against the new vendor if their demands are not met. If the new vendor allows AFSCME to have a “closed shop” it will be able to call a strike if their demands are not met.

In the United States Court of Appeals for the 7th Circuit it suggests a union becomes the exclusive bargaining representative for a group of employees when explicit voluntary recognition occurs by an employer who expressly assents to a union’s representation. See Jefferson Smurfit Corp., 331 N.L.R.B. 809, 809 (2000); or implicit voluntary recognition occurs when an employer’s statements or conduct clearly and unequivocally demonstrate that it has made a commitment to enter into negotiations with a union. See Nantucket Fish Co., 309 N.L.R.B. 794, 795 (1992). The NLRB has consistently held that merely reviewing authorization cards does not count as implicit recognition. See Jefferson Smurfit Corp., 331 N.L.R.B. 809, 809 (2000). Furthermore, the court notes that the NLRB’s decision is consistent with national labor policy, which favors the voluntary recognition of a majority union. See NLRB v. Lyon & Ryan Ford, Inc., 647 F.2d 745, 750 (7th Cir.1981). AFSCME, specifically Local 472, does not have a majority union.

If the new vendor allows this “closed shop”, what is the agency fee? I will research this issue more closely and will provide a follow up report. The follow up report will encompass an analysis of other Illinois State agency contracts where AFSCME represents its employees, specifically, where there are non-union employees, such as the Illinois Department of Employment Security and the Illinois Department of Health and Human Services. There may be mitigating issues here.

The new vendor must acknowledge there is no one advocating for those who oppose this union’s cultural diversity disparity. We are left out of the loop for all practical purposes of negotiating a meaningful contract that includes all the people.

Update: December 30, 2006

As previously reported on this site: On December 20, 2006 Mr. Henry Bayer, Executive Director of AFSCME, responded to a letter I sent to him suggesting his collective bargaining unit for the counselors at Sheridan Correctional Center (Sheridan) is discriminating against others of cultural differences.

This collective bargaining unit has no cultural diversity attached to its board members. There are no latinos or blacks sitting as Board members for AFSCME’s collective bargaining unit at Sheridan. There may have been blacks on their Board when they first started the collective bargaining unit at Sheridan, but after this union’s strike fiasco on June 6, 2006 the blacks that were apart of the bargaining unit declined their memberships. For this cause, new Board members of latinos and blacks must be present in the collective bargaining practice for it to have meaning of representing all the counselors at Sheridan to the new vendor. Why should the new vendor honor any proposal from AFSMCE’s collective bargaining unit if it does not represent all the counselors?

Mr. Rob Fanti believes he does not have to put any “latinos or blacks” on “his” Board. I guess Mr. Bayer and Fanti believe they know how “lationos and blacks” think and what their needs are. The people who are on this Board bring information to their “respective” class members only. By the absence of latinos and blacks on this Board, there is not a dissemination of information about the proposal and any proposed union business. Therefore, we should not have to pay any type of dues to this union.

This union’s actions are certainly a norm for that part of our society who oppressed and discriminated against “blacks” for over 400 years. The discrimination continues at Sheridan.

When I, as a black man, requested to be on their Board, Mr. Bayer responds: “If you sign a membership card, then you have the right to vote and to run for elected positions.” This is an absurd answer. I do not need a membership card for this collective bargaining unit to represent me at the bargaining table with new vendor at Sheridan. There is something wrong with this picture, and our society who allows this to happen. There needs to be and must be stronger legislation against union activities as suggested in the writing “Union Corruption and the Law” by Phillip B. Wilson. There should be a public outcry about the way unions operate, specifically, outside the legal parameters of the law and common decency.

Mr. Bayer goes on to say “…Some local unions require a member to be in good standing for a year before becoming a candidate for office.” I guess this means going along with the agenda of Mr. Fanti, who uses his members as pawns in a chess game. Bargaining unit members, be real clear of his intentions. If Mr. Fanti cared about “all” the counselors at Sheridan he would believe in cultural diversity. The only culture he is interested in is his own culture and their needs.

Mr. Bayer also states “…I’m not familiar with the Addiction Study Program Committee on which you sit, but in AFSCME members attain office by gaining the confidence of their co-workers and getting a majority of the vote.” What kind of craziness is this? What Mr. Bayer really means if you have a one-way thought process you can be part of their team. This one-way thinking promotes my original discussion on why this collective bargaining unit at Sheridan does not want any “real” black men or women sitting on its board. This bargaining unit does not want real discussion of the issues. The Boards I sit on are clear of my intentions. My intentions promote fairness and consistency, not an alignment to the values and concerns of a particular agenda.

This bargaining unit believes they can make demands upon an employer to “take care” of them because they are employed by them. This is ludicrous. A person gets what they work for, no more, no less. A certain amount of a discipline’s academic and experience gains power in negotiating for or having more or requesting more from an employer. You have to have something tangible to bargain with in these negotiations.

The people who sit on this collective bargaining unit Board have no idea what people of color need or want. These people have no idea what the needs are of social services. They come from their kitchens, Walmart, K-Mart or other disciplines or through nepotism demanding things because they have seniority “counseling” at Sheridan. Just because one has worked at Sheridan for 2 or 3 years as a “counselor” does not mean they know how to apply the techniques and theories of the counseling discipline. One may not learn from their peers who do not know social services, but rather from those who have the real experiences of social services and clinical knowledge of the subject matter. One certainly will not learn or know anything if they have certification credentials which come from falisified clinical supervisions.

One may not learn from peers but rather from those who have the real clinical knowledge of the subject matter. One certainly will not learn or no anything when they have certification credentials which come from falisified clinical supervisions. A company is looking for “good service” meaning accountability. A person should not be paid and receive benefits just because they come to work. If one is not doing their work appropriately, the company should be able to take the appropriate steps to assure that services are being rendered appropriately and effectively.

Mr. Fanti and Mr. Bayer do not want to address this issue. They do not want a person like myself who would make them look at themselves before they construct a package to present to an employer. You cannot or should not tell a client to look at themselves if you are not willing to look at yourself. What Mr. Fanti and Mr. Bayer need to do is read “Union Corruption and the Law” by Phillip B. Wilson.

This is also posted on my other website at: http://click.townhall.com/

Update: December 21, 2006

On or about December 18, 2006 I returned a call and talked to Attorney Charles E. Tucker of the United States Government, National Labor Relations Board about filing a charge against AFSCME in this matter. On December 21, 2006 I received the charge in the mail. The charge, as Attorney Tucker interprets my writing, does not address the issues. When I talked to Attorney Tucker I informed him I probably would not file a charge with his office because I will get better results this time by filing a civil complaint in the United States District Court for the Northern District of Illinois, Eastern Division. This process will work better in addressing the issues. The discovery process will be mandatory.

For example, I can use the Landrum-Griffin Act, which is organized into five titles, that is, Title I contains the Bill of Rights for members of labor organizations; Title II requires reporting by labor organizations, officers and employees of labor organizations and employers; Title III regulates the use of trusteeships and limits the purposes for which a trusteeship may be imposed by a labor organization; Title IV regulates union elections, requiring they be held not less than every five years at the National level; and Title V outlines the fiduciary responsibilities. There are at least four disadvantages to filing an NLRB claim. First, NLRB powers are remedial. Second, the Board’s role is to ensure that national labor policy is met, whether or not the union member enjoys an optimal outcome. Third, the findings of the NLRB could be binding in other litigation, and for this reason the plaintiff may want to choose to litigate in a different forum with more formalized discovery; and Fourth and finally, the NLRB is made up of political appointees whose rulings often change with presidential administrations.

Update: December 16, 2006

I faxed a copy of this letter to the United States Government, National Labor Relations Board’s Mr. Will Vance, Officer-in-charge. I requested a complaint form for filing a charge in this matter.
December 15, 2006

Mr. Henry Bayer, Executive Director AFSCME Council 31, AFL-CIO
29 N. Wacker Drive, Suite 800
Chicago, Illinois 60606

Re: Local 472 – Board Membership and Equal Representation at Sheridan Correctional Center

Mr. Bayer:

I, Fred L Nance Jr., am requesting action and information about AFCME Board Membership with Local 472, which is representing the employees (counselors) at Sheridan Correctional Center (Sheridan). AFSCME’s Local 472 is the bargaining unit for employees (counselors) of the new vendor at Sheridan. There are no African Americans, males or females, presently sitting on the Board bargaining for a contract with the new vendor, supposedly representing all the employees of the new vendor. I am an African American. Every present sitting Board member is white, yet they are supposed to represent African Americans.

This has the appearance of unfair representation, with racial overtones. I requested Board membership and was told I have to hold a membership card. Why do I have to have a membership card? Local 472 is in the process of bargaining for a contract with the new vendor, representing me as a member of their Local and I do not have a membership card? I do not have to have a membership card for Local 472 to represent me. Local 472 is the bargaining unit for all the Sheridan employees (counselors) of the new vendor, with or without membership cards, white and black.

There are no African American Board members. How can the African Americans who work for the new vendor be properly represented when they have no representation at the table? Why am I being denied the opportunity to be a Board member? Is it because I am black?

I have been told that I have no right to a vote since I do not hold a membership card, yet AFSCME represents me at the bargaining table. This not having a right to vote sounds familiar.

I have been told I have no right to be at a meeting held by AFSCME discussing the bargaining issues that are going to be presented, in my behalf, to the new vendor because I do not have a membership card. I sent an e-mail to Mr. Rob Fanti requesting a copy of the proposed contract. Mr. Fanti has not contacted me, even though he has seen me numerous times at work. I guess I am not entitled to a copy of the proposed contract, even though each present sitting Board member, who is white, has been privy to this proposed contract.

If AFSCME can bargain for me at the table with the new vendor when I do not have a membership card, then I should have all the rights of similarly situated others who do have membership cards who are being represented. The proposal AFSCME is about to present or has presented to the new vendor does not have proper representation of all the employees of the new vendor.

I have heard that AFSCME is getting ready to bargain with the new vendor. AFSCME has withheld information about the bargaining practice from its non-cardholding members whom they purport to bargain in their behalf.

Also, when does voting take place for the Board members? Are the non-cardholding members exempt from the voting process? The last vote for Board members took place in November of 2005.

Therefore, I respectfully request consideration for Board membership with Local 472 as they represent the employees (counselors) at Sheridan. I respectfully request, from AFSCME, equal and fair representation at the bargaining table as a Board member, that is, there should be African Americans sitting on this Board discussing the issues that will impact the employment of African Americans since they are being represented by AFSCME.

I am familiar with Board membership. I presently sit on Kennedy-King College’s Addictions Study Program as a Board member. I have been a Board member with Kennedy-King for 7 years. I am a Board member of the International Institute of Black Addictions Professionals (IIBAP). I sit on IIBAP’s research committee. There is no one sitting on this Board holding academic standing and credentials such as what I have to offer. There should be no reason why I cannot sit on this bargaining unit Board to discuss and articulate the issues of employment. I have extensive knowledge of employment law. I have extensive knowledge of human/social services.

Respectfully submitted,

Fred L Nance Jr., ABD, MA, CADC, NCRS

cc: Mr. Henry Bayer, Executive Director (U.S. mail and fax delivery)
W. James Young, Attorney National Right to Work Legal Defense Foundation
Catherine L. Struzynski, Esq., AFSCME Council 31 (fax delivery only)
Rainbow/Push Coalition
http://click.townhall.com/
http://clickforjusticeandequality.blogspot.com/

Update: October 3, 2006

I talked to Ms. Efia Goosby, Illinois Department of Employment Security (IDES) Supervisor on October 2, 2006 requesting she recuse herself from judging my IDES Appeal. Ms. Goosby refuses to include the Illinois Department of Corrections in my appeal, even though I have persisted in requesting their inclusion because they locked me out from my employment, and that they are the “indirect employer” in this matter. I have also left a message with Ms. Goosby’s supervisor Hilda Whittington.

I informed Ms. Goosby one of her line items for discussion in my pre-hearing of September 28, 2006 was “Whether the Administrative Law Judge, Efia Goosby, must disqualify herself from hearing this matter.” Ms. Goosby informed me on October 2, 2006 that this issue will be discussed on October 12, 2006 at my “hearing.” This is absurd.

AFSCME (the union) employees striking at Illinois’ Sheridan Correctional Center (Sheridan) are not entitiled to unemployment benefits because they voluntarily walked off their jobs. Employees who were locked out from their employment by their employer, specifically the State of Illinois/Illinois Department of Corrections as “de facto or indirect employers” because they jointly control the day-to-day operations of the facility and the substance abuse program, are entitled to unemployment benefits.

During a telephone pre-hearing interview on September 28, 2006 between the Illinois Department of Employment Security’s (IDES) Administrative Review Board and the participating and non-participating employees of the strike, AFSCME Attorney Scott Miller cited this case to suggest the non-participating employees were not entitled to unemployment benefits. The case cited is AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES (AFSCME), COUNCIL 31, Appellee, v. THE ILLINOIS STATE LABOR RELATIONS BOARD, STATE PANEL, et al. (The Department of Central Management Services et al., Appellants). Opinion filed October 6, 2005.

This case does not apply to the present situation regarding the non-participating employees of this strike. In the first instance, AFSCME is the “bargaining unit” of the striking employees. AFSCME does not have a “contract” with the employer of the employees who were striking, which renders this cited case useless.

Ms. Efia Goosby, Administrative Law Judge, erroneously accepted this cite from Mr. Miller even though it was established during this telephone pre-hearing interview that Mr. Miller would not be allowed to participate in the proceedings of the non-striking employees, nor would Mr. Miller be representing the non-participants of the strike. I strongly objected to the acceptance of this cite. Nevertheless, Ms. Goosby exercised her biased and prejudiced authority to overrule my objection.

I will be posting this case for the viewing public.

On March 7, 2005, Illinois Governor Rod Blagojevich signed into law an act that amended Section 604 of the Illinois Unemployment Insurance Act. As amended, Section 604 now provides unemployment benefits to employees who are locked out by their employer. Effective January 1, 2006, locked out employees will be entitled to receive benefits provided the employees are not otherwise disqualified from receiving benefits under another section of the Illinois Unemployment Compensation Act.

As amended, the law does impose some limits on the entitlement locked-out employees will have to benefits. Specifically, the law states that locked-out employees are not entitled to receive benefits for any week of the lockout during which (1) the union refuses to meet, under reasonable conditions, with the employer to discuss the issues that gave rise to the lockout; (2) the National Labor Relations Board determines that the union has refused to bargain in good faith over the issues that gave rise to the lockout; or (3) the lockout resulted as a direct consequence of the union’s violation of an existing collective bargaining agreement.

Under the Illinois Unemployment Insurance Act, an employer is required to contribute a specified percentage of its employees’ salary into an Unemployment Insurance Fund for the payment of benefits. The amount that an employer must pay is determined by the employer’s experience rating. The employer’s experience rating is determined on the basis of the number of its employees that apply for and receive benefits. The new law is significant because it may increase the pool of employees that may be eligible to receive benefits under the Act. If locked-out employees are eligible for and receive benefits, the employer’s experience rating may increase, resulting in additional costs to the employer. Thus, an employer considering a lock out of employees should be aware that such action may impact their experience rating. Employers can work to manage these costs by seeking to meet with the union in order to resolve any contract disputes or otherwise convince the NLRB that the union is not acting in good faith. Employers, however, will have to take a more active role in the lock out process based on this amendment.

(820 ILCS 405/601) (from Ch. 48, par. 431) Sec. 601. Voluntary leaving.

An individual shall be ineligible for benefits for the week in which he has left work voluntarily without good cause attributable to the employing unit and, thereafter, until he has become reemployed and has had earnings equal to or in excess of his current weekly benefit amount in each of four calendar weeks which are either for services in employment, or have been or will be reported pursuant to the provisions of the Federal Insurance Contributions Act by each employing unit for which such services are performed and which submits a statement certifying to that fact.

(820 ILCS 405/604) (from Ch. 48, par. 434) Sec. 604. Labor dispute.

An individual shall be ineligible for benefits for any week with respect to which it is found that his total or partial unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment, or other premises at which he is or was last employed. The term “labor dispute” does not include an individual’s refusal to work because of his employer’s failure to pay accrued earned wages within 10 working days from the date due, or to pay any other uncontested accrued obligation arising out of his employment within 10 working days from the date due.

For the purpose of disqualification under this Section the term “labor dispute” does not include a lockout by an employer, and no individual shall be denied benefits by reason of a lockout, provided that no individual shall be eligible for benefits during a lockout who is ineligible for benefits under another Section of this Act, and provided further that no individual locked out by an employer shall be eligible for benefits for any week during which (1) the recognized or certified collective bargaining representative of the locked out employees refuses to meet under reasonable conditions with the employer to discuss the issues giving rise to the lockout or (2) there is a final adjudication under the National Labor Relations Act that during the period of the lockout the recognized or certified collective bargaining representative of the locked‑out employees has refused to bargain in good faith with the employer over issues giving rise to the lockout, or (3) the lockout has resulted as a direct consequence of a violation by the recognized or certified collective bargaining representative of the locked out employees of the provisions of an existing collective bargaining agreement. An individual’s total or partial unemployment resulting from any reduction in operations or reduction of force or layoff of employees by an employer made in the course of or in anticipation of collective bargaining negotiations between a labor organization and such employer, is not due to a stoppage of work which exists because of a labor dispute until the date of actual commencement of a strike or lockout.

This Section shall not apply if it is shown that (A) the individual is not participating in or financing or directly interested in the labor dispute which caused the stoppage of work and (B) he does not belong to a grade or class of workers of which immediately before the commencement of the stoppage there were members employed at the premises at which the stoppage occurs, any of whom are participating in or financing or directly interested in the dispute; provided, that a lockout by the employer or an individual’s failure to cross a picket line at such factory, establishment, or other premises shall not, in itself, be deemed to be participation by him in the labor dispute. If in any case, separate branches of work which are commonly conducted as separate businesses in separate premises are conducted in separate departments of the same premises, each such department shall, for the purpose of this Section, be deemed to be a separate factory, establishment, or other premises.

Whenever any claim involves the provisions of this Section, the claims adjudicator referred to in Section 702 shall make a separate determination as to the eligibility or ineligibility of the claimant with respect to the provisions of this Section. This separate determination may be appealed to the Director in the manner prescribed by Section 800. (Source: P.A. 93‑1088, eff. 1‑1‑06.)

Blagojevich’s Illinois Department of Employment Security: Appeal of Determination

Update: October 3, 2006

I talked to Ms. Efia Goosby, Illinois Department of Employment Security (IDES) Supervisor on October 2, 2006 requesting she recuse herself from judging my IDES Appeal. Ms. Goosby refuses to include the Illinois Department of Corrections in my appeal, even though I have persisted in requesting their inclusion because they locked me out from my employment, and that they are the “indirect employer” in this matter. I have also left a message with Ms. Goosby’s supervisor Hilda Whittington.

I informed Ms. Goosby one of her line items for discussion in my pre-hearing of September 28, 2006 was “Whether the Administrative Law Judge, Efia Goosby, must disqualify herself from hearing this matter.” Ms. Goosby informed me on October 2, 2006 that this issue will be discussed on October 12, 2006 at my “hearing.” This is absurd.

STATE OF ILLINOIS
DEPARTMENT OF EMPLOYMENT SECURITY
LABOR DISPUTE DETERMINATION
U.I. PROGRAM SUPPORT DIVISION, LABOR DISPUTE SECTION
33 SOUTH STATE STREET, 9TH FLOOR
CHICAGO, ILLINOIS 60603

APPEAL OF DETERMINATION

I, Fred Nance Jr. (Nance), am an employee of Gateway Foundation (Gateway) working as a Counselor III at Sheridan Correctional Center (Sheridan), a subsidiary of the Illinois Department of Corrections (IDOC). On June 6, 2006 AFSCME (The Union) caused a strike at Sheridan. The Illinois Department of Corrections (IDOC) locked out some Gateway employees, which I am locked out from my employment at Sheridan. Subsequently, I filed for unemployment benefits under the Illinois Unemployment Insurance Act (The Act), Sections 601 and 604. I will address the following to support my eligibility for unemployment benefits.

The Illinois Department of Employment Security (IDES) has decided I am ineligible for unemployment benefits due to a stoppage of work pursuant to Section 604 of The Act. The Act reports, in part, “An individual shall be ineligible for benefits for any week with respect to which it is found that his total or partial unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment, or other premises at which he is or was last employed…For the purpose of disqualification under this Section the term “labor dispute” does not include a lockout by an employer, and no individual shall be denied benefits by reason of a lockout….” I am appealing the decision and/or determination of IDES issued on August 4, 2006.

FINDINGS OF FACT by IDES

1. The COMPANY (Gateway) is engaged in providing substance abuse counseling and treatment services. The COMPANY has a contract with the Illinois Department of Corrections (“IDOC”) to provide substance abuse counseling and treatment services to the inmates of the Sheridan Correctional Center (“SCC”), a facility controlled and operated by IDOC for incarcerating convicted felons.

2. The Union is the recognized collective bargaining representative of counselors employed by the COMPANY to provide substance abuse counseling and treatment services at SCC (“WORKERS”).

3. On June 6, 2006, when negotiations between the COMPANY and the UNION regarding the initial collective bargaining agreement between them ended in an impasse, the WORKERS ceased work and established picket lines at SCC.

4. Some of the workers attempted to cross the picket lines and enter SCC in order to work (“NON-PARTICIPATING WORKERS”), but were refused entry by IDOC. IDOC continues to refuse to let the NON-PARTICIPATING WORKERS into SCC. Some of the NON-PARTICIPATING WORKERS are not members of and do not support the UNION.

5. The COMPANY wants the NON-PARTICIPATING WORKERS to enter SCC and work, but can do nothing about the situation since IDOC has sole and complete authority over who is or is not allowed to enter SCC.

6. IDOC states it refuses to allow entry to SCC to the NON-PARTICIPATING WORKERS because various AFSCME bargaining units are the recognized collective bargaining representatives of correctional officers (i.e., security staff) and other IDOC employees at SCC, and therefore the safety and security at SCC could be disrupted if it allowed the NON-PARTICIPATING WORKERS into SCC in order to work before the differences between the UNION and the COMPANY is resolved.

NANCE’S ARGUMENT

IDES does not address the eligibility requirement of Section 601, therefore, Section 601 is satisfied for Nance. Also, number 2 of IDES’s “Findings of Fact” reports “The Union is the recognized collective bargaining representative of counselors employed by Gateway.” In a newspaper article, The Times, Ottawa, dated July 12, 2006, it reports “ Derek Schnapp, a spokesman for the Illinois Department of Corrections, said he could not discuss the case in detail, as it involves personnel. “All we can say is their case is under review, but they have not yet been cleared to enter the facility,” he said. And AFSCME spokesman Anders Lindall said his union would likely do nothing to help the workers, though Council 31 represents them as the official bargaining unit.” How can AFSCME be my bargaining unit, when their spokesman Anders Lindall reports they will not support or help the “Non-Participating Workers” of Gateway?

The next most compelling issue here in determining eligibility for Nance is Section 604’s “stoppage of work.” IDES reports “There was a stoppage of work because of a labor dispute between the Company (Gateway) and the Workers…”, supporting this statement suggesting the operations of Gateway are not substantially normal since it has not provided any substance abuse counseling and treatment services at Sheridan since The Union ceased work and established picket lines. First, this is not found in IDES’s “Findings of Fact.” Second, this statement supporting IDES’s determination is troubling. The legislature did not include substantially normal in the language of Section 604 to define or described stoppage of work. Also, Gateway has continued providing substance abuse and treatment services pursuant to their contractual agreement with the State of Illinois/IDOC.

In addition, IDES reports “Section 604 of the Illinois Unemployment Insurance Act provides that an individual shall be ineligible for benefits for any week with respect to which it is found that his total or partial unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment or other premises at which he is or was last employed. Case law establishes that for purposes of Section 604, a stoppage of work exists when an employer’s operations are not substantially normal.” Where is the case law cite? This is an arbitrary and biased statement if there is no case law leading to or from the quote of IDES. Additionally, if in the future IDES does provide case law to support this “substantially normal” statement, I should be afforded the right to challenge the “case law” with further research of that case law.

When speaking of their position in this matter, IDES reports on page 4 of their determination “The most straightforward answer requires a reading of Section 604 using the plain and ordinary meaning of the language it contains…Although there do not appear to be any controlling Illinois appellate court or Supreme Court cases….” This is contradictory to their statement of established case law for the language “substantially normal.”

The principles of statutory construction are well established, as the Illinois Supreme Court observed in Bridgestone/Firestone, Inc. v. Aldridge, 179 Ill. 2d 141 (1997): ” ‘It is a primary rule in the interpretation and construction of statutes that the intention of the legislature should be ascertained and given effect. This is to be done primarily from a consideration of the legislative language itself, which affords the best means of its exposition, and if the legislative intent can be ascertained there from it must prevail and will be given effect without resorting to other aids for construction. There is no rule of construction which authorizes a court to declare that the legislature did not mean what the plain language of the statute imports.’ ” Bridgestone/Firestone, 179 Ill. 2d at 149, quoting Illinois Power Co. v. Mahin, 72 Ill. 2d 189, 194 (1978).

IDES does not define “substantially” normal, neither does Section 604. As a matter of “fact” The Act, specifically, Section 604 does use the words “substantially normal.” These words appear to be “created” by IDES. Nevertheless, substantially can be defined as consisting of or relating to substance, not imaginary or illusory, real, true, important, essential; ample to satisfy and nourish, full (a substantial meal); possessed of means (well-to-do), considerable in quantity, significantly great (as a substantial wage), firmly constructed, sturdy (a substantial house), and being largely but not wholly that which is specified (a substantial lie). This is a definition from Merriam-Webster Online, a reference used by IDES to define “due to.” Generally, an issue of this nature is defined by case law or legal reference, which, apparently, IDES does not have to support their claim of denial for a “stoppage of work.”

Gateway has been providing substance abuse counseling and treatment services before and after the strike. For the present argument, pursuant to IDES’s “Findings of Fact” Gateway has a contract with IDOC to provide substance abuse counseling and treatment services. Of course, there are more elements to Gateway’s contractual agreement with IDOC. Illinois Governor Blagojevich spokeswoman Rebecca Rausch reported to the media on Friday, August 4, 2006, that the labor dispute is between Gateway and its employees, so the governor would only step in if the organization’s counseling services slipped at Sheridan. Ms. Rausch was quoted as saying “We are monitoring this situation very closely to make sure this vendor is meeting its contractual obligations,” Rausch said. If there was a “stoppage of work” the Governor’s office would have proclaimed it.

On July 26, 2006 the Chicago Tribune headlines “Strike not affecting prison, state says” report, “New inmates are coming in as normal,” said Derek Schnapp, a spokesman for the Illinois Department of Corrections. “It’s been the same business as usual.” In another article by the Chicago Tribune on July 26, 2006 headlined as “Prison Enduring 7th week of strike” it reports, “The Sheridan Correctional Center, one of the nation’s largest drug-treatment prisons, continues to function effectively despite the absence of about 40 striking drug counselors, state officials said Tuesday as the strike entered its seventh week.” Mr. Schnapp made the same statement written above for this article also.

In addition, the article “Prison enduring 7th week of strike” reports “Gateway President Michael Darcy said his company is caring for the prison’s roughly 850 inmates using 22 drug treatment specialist who were previously in supervisory positions and 14 counselors who have crossed the picket line. The people that have crossed the line and our clinical supervisors are able to produce at a higher productivity level than all the striking counselors put together,” Darcy said.”

In the Associated Press release of July 25, 2006 “Prison workers urged to reject union bid” it reports, “Lindall said drug programs for inmates have slipped during the walkout. But prison spokesman Derek Schnapp said Gateway is fulfilling its contract and the state is pleased with services that have been provided since the strike began.”

In addition, the State of Illinois conducted an audit to assure Gateway was in compliance with their contractual agreements. The Governor’s office continuously reports to the media Gateway is living up to its contractual agreements. Therefore, Gateway is “substantially” normal providing substance abuse counseling and treatment services at Sheridan defeating IDES’s claim of “stoppage of work.”

IDES’s heading Determination, states in part, “On the basis of information received, the claims adjudicator determines that the Workers (Gateway employees) in employment with the Company (Gateway) up to June 6, 2006, including the Non-Participating Workers, are ineligible for Unemployment Insurance Benefits under the terms and provisions of Section 604 of the Illinois Unemployment Insurance Act…for as long as their unemployment remains due to a stoppage of work caused by a labor dispute….” There is no stoppage of work by Gateway at Sheridan.

In addition, On August 9, 2006 Gateway called me reporting another counselor has crossed the picket lines and come to work. They report two other counselors have contacted them reporting they will cross the picket lines and come to work later this week or early next week.

If IDOC is allowing striking counselors (“Workers”) to cross the picket lines and go to work the striking “Workers” become “Non-Participating Workers, then the other “Non-Participating Workers” should be allowed to cross the picket lines and come to work. IDES discusses and defines “Workers” and “Non-Participating Workers” in their determination.

IDES’s definition of a “Workers”, in this matter, is one who works for Gateway at Sheridan; who organized and set up picket lines; and is participating in the strike. IDES’s definition of “Non-Participating Workers” is one who works for Gateway and is not participating in the strike.

When the counselors mentioned here for August 9, 2006 cross the picket lines and go to work, they went from “Workers” to “Non-Participating Workers”. IDOC is discriminating against Kathy, Lisa, and I. We should be allowed to cross the picket lines and go to work.

To repeat the IDES statement offered by IDOC: “IDOC states it refused to allow entry to Sheridan to the Non-Participating Workers because The Union has various bargaining units that are recognized collective bargaining representatives of correctional officers, i.e., security staff and other IDOC employees at Sheridan, and therefore the safety and security at Sheridan could be disrupted if it allowed the Non-Participating Workers into Sheridan in order to work before the differences between The Union and Gateway is resolved.” With the information provided here, I think this just went out the window. IDOC is discriminating against the “original” “Non-Participating Workers” of Gateway.

Next IDES reports “Section 604 provides an exception to the ineligibility for benefits it imposes. Individuals are not ineligible for benefits under Section 604 if they: A) are not participating in, or financing, or directly interested in the labor dispute which caused the stoppage of work; and B) do not belong to the same grade or class of workers of which immediately before the commencement of the stoppage of work there were workers employed at the premises at which the stoppage of work occurs, any of whom are participating in, or financing, or directly interested in the labor dispute.

IDES conveniently leaves out the rest of B, which states, “provided, that a lockout by the employer or an individual’s failure to cross a picket line at such factory, establishment, or other premises shall not, in itself, be deemed to be participation by him in the labor dispute.”

IDES also takes this exception of Section of 604 and reverses it reporting it as positive requirements stating “The Non-Participating Workers are ineligible for benefits under either A or B even if they did not participate in the labor dispute or finance the labor dispute through union dues or other means. First, they clearly have a direct interest in the labor dispute since the terms and conditions of their jobs will be determined by whatever terms and conditions of the Company and Union ultimately agree to.” This is ludicrous.

IDES is putting the cart before the horse. The Non-Participating Workers have no direct interest at the time of filing for unemployment benefits or this appeal determination. IDES cannot predict the future. With this statement, IDES is involved with AFSCME in compulsory unionism.
In addition, IDES states, “Second, they just as clearly belong to a class of workers which immediately before the work stoppage contained members employed at Sheridan….” This is not true in my case. There is no counselor III striking. I am a counselor III. There are numerous civil rights cases, which define and clarify a class of workers. To satisfy the “similarly situated” prong of the prima facie case, an employee must be “directly comparable in all material respects.” Sartor v. Spherion Corp., 388 F.3d 275, 279 (7th Cir. 2004) Being a counselor III is certainly a material aspect of Section 604.

IDES attempts to survive their determination stating the Non-Participating Workers of Gateway are not locked out of Sheridan by their employer because IDOC is not their employer. IDES states in their “Findings of Fact” paragraph 1 “The COMPANY has a contract with the Illinois Department of Corrections (“IDOC”)….” IDOC is there employer!!!

IDES does not discuss the employment relationship as it applies to de facto and/or indirect employer. Gateway is contracted to provide services at Sheridan. This is a given. This contract is provided by IDOC, pursuant to IDES’s statement in their “Findings of Fact.”

Fundamentally in nature, the employer has locked us out of Sheridan. IDOC is not a “third-party” as IDES describes in their determination letter. IDES contradicts itself continuously. IDOC is the “de facto and/or indirect” employer, evidently, with the right to lockout who they please as stated by IDES in their “Findings of Fact” reports “…a facility controlled and operated by IDOC….” IDES presents no precedent law neither cites any legal language to support their position. IDES is clearly misinterpreting their policies promoting the agenda of AFSCME.

Nevertheless, IDES reports IDOC states it refused to allow entry to Sheridan to the Non-Participating Workers because The Union has various bargaining units that are recognized collective bargaining representatives of correctional officers, i.e., security staff and other IDOC employees at Sheridan, and therefore the safety and security at Sheridan could be disrupted if it allowed the Non-Participating Workers into Sheridan in order to work before the differences between The Union and Gateway is resolved.

In General Motors Corp. v. Bowling, 85 Ill. 2d 539, 542 (1981) this court rejected a claim that the members of a union representing the shop clerks at General Motors’ plants in Chicago and LaGrange, Illinois, had a direct interest in a labor dispute between General Motors and the members…representing the production workers at the plants. The court recognized that certain parts of the production workers’ agreement with General Motors would customarily be copied into the shop clerks’ own agreement. The shop clerks, therefore, might anticipate that the strike by the production workers would influence their terms of employment. That, however, was at most an indirect interest. The court explained: “All they had was a hope, not any assurance. A mere expectancy without any legal right, subject to GM’s views on the fairness and convenience of adopting parts of another agreement, does not disqualify the shop clerks for unemployment benefits.” General Motors Corp., 85 Ill. 2d at 543. This is similar to IDOC’s claim of having a right to lockout Gateway employees because of the expectancy of other union members.

The Illinois Supreme Court in International Union of Operating Engineers, Local 148, AFL-CIO v. Illinios Department of Employment Security et al. (2004) discussed direct interest in a labor dispute under Section 604.

Citing section 604 of the Unemployment Insurance Act (820 ILCS 405/604 (West 1994)), the Department and CIPS maintain that the members of Engineers’ Union were not eligible for unemployment compensation benefits because their unemployment was due to a stoppage of work resulting from a labor dispute. Conversely, Engineers’ Union maintains that the relieving proviso of section 604 applies, and the members of Engineers’ Union were eligible for unemployment compensation benefits.

This Supreme Court stated “Section 604 of the Act provides: “Labor dispute. An individual shall be ineligible for benefits for any week with respect to which it is found that his total or partial unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment, or other premises at which he is or was last employed. This Section shall not apply if it is shown that (A) the individual is not participating in or financing or directly interested in the labor dispute which caused the stoppage of work and (B) he does not belong to a grade or class of workers of which immediately before the commencement of the stoppage there were members employed at the premises at which the stoppage occurs, any of whom are participating in or financing or directly interested in the dispute; provided, that a lockout by the employer or an individual’s failure to cross a picket line at such factory, establishment, or other premises shall not, in itself, be deemed to be participation by him in the labor dispute.” 820 ILCS 405/604 (West 1994).”

This Supreme Court states, “Where the union has a mere expectancy in the outcome of another union’s dispute, such as where the employer historically patterns its collective bargaining agreements with each of its unions after each other, our courts have not found a direct interest.” The court explained: “All they had was a hope, not any assurance. A mere expectancy without any legal right, subject to GM’s views on the fairness and convenience of adopting parts of another agreement, does not disqualify the shop clerks for unemployment benefits.” General Motors Corp., 85 Ill. 2d at 543.

To be eligible for unemployment insurance benefits under the relieving proviso of section 604, an employee must prove both that he is not directly interested in the labor dispute and that he is not of the same grade or class as employees who are participating in, financing or who hold a direct interest in the labor dispute.

IDES results in looking to the dictionary for definitions to legislative language. Definitions for legislative language are found in the legislature. When discussing stoppage of work with Ms. Cheryl Howard, she reports that supervisors and managers are replacing Non-Participating Workers doing their work, therefore, constituting a stoppage of work. I disagree.
I am a counselor III with Gateway. The Gateway Job Description for Counselor III reports, in part, “completes comprehensive assessments and treatment planning for caseload, and provides counseling services to clients. Develops and implements complex treatment and discharge plans for clients with dual diagnoses, social or mental health issues. Serves as professional resource to other Counselors in resolving complex case problems, and provides clinical supervision and guidance as needed. Develops and conducts in-service and continuing education programs for treatment staff; assumes responsibility for overseeing Counselors in absence of supervisor, and may assume responsibility for supervision of Counselors in absence of supervisor.”

Section 604 of the Act operates to disqualify an employee from receiving unemployment benefits when the employee is voluntarily unemployed because of a labor dispute at the place where he or she was last employed. Section 604 ” ‘evinces the legislative determination that the State is to remain neutral in labor disputes and collective bargaining, rendering assistance to neither the employer nor labor.’ ” Bridgestone/Firestone, 179 Ill. 2d at 156, quoting Local 7-641 v. Department of Labor, 96 Ill. 2d 94, 98 (1983). The plain language of section 604 requires an individuals’ unemployment be “due to a stoppage of work which exists because of a labor dispute.” (Emphasis added.) 820 ILCS 405/604 (West 1992). Again, there is no stoppage of work.

Section 604, commonly referred to as the “labor dispute disqualification” section, provides in pertinent part: “Labor Dispute. An individual shall be ineligible for benefits for any week with respect to which it is found that his total or partial unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment, or other premises at which he is or was last employed.” 820 ILCS 405/604 (West 1992).

The primary purpose of the Unemployment Act is to lessen the burden of unemployment upon unemployed workers. Wadlington v. Mindes, 45 Ill. 2d 447, 452 (1970), quoting Illinois Bell Telephone Co. v. Board of Review of the Department of Labor, 413 Ill. 37, 43 (1952) (“The primary purpose of the Illinois Unemployment Insurance Act is to relieve ‘economic distress caused by involuntary unemployment’ “).

IDES ends their report stating “Therefore, is their unemployment due to the work stoppage caused by the labor dispute at SCC (Sheridan)? If yes, they are disqualified from benefits under Section 604; if no, they are not disqualified.” IDES continues wondering if the stoppage of work is due to the labor dispute. As discussed earlier in this writing, there is no stoppage of work by Gateway at Sheridan, and therefore, the answer to IDES’s question is no and I am not disqualified from receiving unemployment benefits.

Conclusion

IDES wants us to believe there are no controlling Illinois appellate or Supreme Court cases. In paragraph 5 of IDES’s “Finding of Fact” it reports “…since IDOC has sole and complete authority over who is or is not allowed to enter SCC”; In paragraph 6 of IDES’s “Finding of Fact” it reports “IDOC states it refuses to allow entry to SCC to the Non-Participating Workers…”; and on page 3 of IDES’s report it states “…Section 604 provides that the term “labor dispute” does not include a lockout by an employer, and that no individual shall be denied benefits under Section 604 by reason of a lockout. Therefore, if the Non-Participating Workers had been denied access to SCC by the Company rather than IDOC, there would be clear justification for not finding them ineligible for benefits under Section 604 because they had been “locked out” of SCC by their employer.”

IDOC and Gateway, both entities, usefully could be deemed employers in such a situation as presented here. Gateway has contractual obligations with IDOC as stated in IDES’s “Findings of Fact”, where those contractual obligations are satisfied with IDOC at Sheridan. Therefore, IDOC/Sheridan is the “de facto or indirect” employer in this instance because they are exercising sole and complete authority and control over Gateway employees.

IDOC is the “De facto or Indirect” EMPLOYER. In addition, IDOC has discriminated against the Non-Participating Workers. There is a ‘control test’ to determine whether an entity is an ‘employer’.” Russo v. Ryerson, No. 01-CV-4458 2006 U.S. Dist. LEXIS 10447, at (D.N.J. Feb. 27, 2006) (citing Graves, supra, 117 F.3d at 723.2) Other circuits have followed suit. Ass’n of Mexican-American Educators, supra, 231 F.3d at 582-83; Mangram v. General Motors, 108 F.3d 61, 62-63 (4th Cir. 1997); E.E.O.C. v. Illinois, 69 F.3d 167, 169 (7th Cir. 1995).

The control test as it relates to a “de facto” employer “is appropriately used where it is clear that a putative (assumed) defendant does not directly employ the plaintiff, but nevertheless controls the plaintiff’s employment to the point that it would contravene the intent of Title VII for the putative defendant to avoid liability for its own discriminatory actions.” Kerr v. WGN Cont’l Broad. Co., 229 F. Supp. 2d 880, 886 (N.D. Ill. 2002); see e.g., Conroy v. City of Phila., 421 F. Supp. 2d 879 (E.D. Pa. 2006) (explaining how “City’s ability to place its own requirements upon the hiring process,” as well as “its control policy is to look to Title VII for guidance when interpreting provisions…and to federal precedent governing Title VII “‘as a key source of interpretative authority.’” Pukowsky, supra, 312 N.J. Super. At 178 (quoting Lehmann, supra, 132 N.J. at 600-01).

Indirect liability results when the defendant employer “so far control[s] the plaintiff’s employment relationship that it [is] appropriate to regard the defendant as the de facto or indirect employer of the plaintiff . . . .” E.E.O.C., supra, 69 F.3d at 169. In other words, “[d]e facto or indirect employer liability depends on the amount of the control a putative Title VII defendant exerts over the plaintiff’s employment.” Kerr, supra, 229 F. Supp. 2d at 886. It “addresses the situation where a formal employment relationship may be absent, but the putative defendant is so extensively involved with the plaintiff’s day to day employment that the putative defendant is the ‘real’ employer for all intents and purposes, including Title VII liability.” Ibid.; see E.E.O.C., supra, 69 F.3d at 171 (explaining how entities that “pull the strings in the background”, and retain employment decision making power, are de facto employers pursuant to Title VII).

In Sibley Mem’l Hosp. v. Wilson, 488 F.2d 1338 (D.C. Cir. 1973) Control over access to the job market may reside, depending upon the circumstances of the case, in a labor organization, an employment agency, or an employer as defined in Title VII; and it would appear that Congress has determined to prohibit each of these from exerting any power it may have to foreclose, on invidious grounds, access by any individual to employment opportunities otherwise available to him. To permit a covered employer to exploit circumstances peculiarly affording it the capability of discriminatorily interfering with an individual’s employment opportunities with another employer, while it could not do so with respect to employment in its own service, would be to condone continued use of the very criteria for employment that Congress has prohibited. [Id. at 1341.]

I have proven I deserve unemployment benefits pursuant to Section 604.

Respectfully submitted,

Fred L Nance Jr., ABD, MA, CADC, NCRS

cc: Honorable Rod R. Blagojevich, Governor of Illinois
Ms. Judith Boone, Investigator National Labor Relations Board
Mr. W. James Young, Staff Attorney-National Right To Work Legal Defense Foundation, Inc.
Mr. Gregg Dockins, Director Gateway/Sheridan
http://clickforjusticeandequality.blogspot.com/
C.L.I.C.K. for Justice and Equality

18 Supporting documents attached

Sheridan Project: Illinois Department of Corrections 1st Lockout of Fred Nance on June 6, 2006

May 14, 2008

Sheridan Project: State of Illinois, Department of Employment Security
Labor Dispute Appeal of Fred L Nance Jr., Claimant.

On November 29, 2006, the Department of Employment Security rendered its recommended decision, which was adopted by the Director of Employment Security.

The Decision:

This matter arises under the provisions of Sections 604, 800, and 801 of the Illinois Unemployment Insurance Act (“the Act) [820 ILCS 405/, 604, 800, and 801]. On August 4, 2006, a Department of Employment Security claims adjudicator issued a determination that certain employees, including the claimants, were ineligible for unemployment benefits from week ending June 10, 2006, because their unemployment was due to a stoppage of work which existed because of a labor dispute at the establishment of the employer, within the meaning of Section 604 of the Act. The determination further held the Non-participating Workers, including the “non-participatory” claimant-appellants herein were ineligible.

The claimants filed timely appeals to the determination. The employer filed a timely five (5) day list of workers involved in the labor dispute.

A telephone hearing was held on September 12, 2006, in Chicago, Illinois, before the Director’s Representative, Administrative Law Judge Efia Goosby. The claimant appeared and testified. The employer-appellee was represented by counsel Molly Eastman, from the law firm of Seyfarth Shaw, LLP. Testifying for the employer were, Sandra Brussard and Paul Fox, employee relations officers.

Statement of the Issues:

Whether the claimant-appellants’ unemployment, beginning the week ending June 10, 2006, was due to a stoppage of work which existed because of a labor dispute at the expense of the employer.

Summary of the Evidence:

Gateway Foundation, Inc. (Company) has a contract with the Illinois Department of Corrections (IDOC) to provide substance abuse counseling and treatment services to the inmates of the Sheridan Correctional Center (SCC), a facility controlled and operated by IDOC for incarcerating convicted felons. Some of the counselors employed by the Company have elected AFSCME Council #31, AFL-CIO (Union) as their collective bargaining representative (Workers).

On June 6, 2006, the Workers ceased work and established picket lines at SCC. Some of the Workers crossed the picket lines and reported to work at SCC but “non-participatory” workers, the appellants herein, were not allowed to cross the picket lines.

The “non-participatory” claimant-appellants, who were within the 90 day probationary period, were barred by IDOC from reporting to work allegedly because a security risk would have been posed because security officers in the facility were AFSCME members. However, non-probationary employees, who were members of the same class were allowed to cross the picket lines by IDOC.

All employees who work at SCC must undergo orientation training conducted by IDOC and employees must submit documentation to IDOC for absences, over and above that which is required by the Company. IDOC requires that all employees working in the facility pass a security clearance and IDOC may pull that security clearance based upon its criteria. Employees of the Company may be discharged for failing to follow any of the rules established to control activities within the facility. However, the employer-appellee testified that it was the employer of the claimants and that it was a vendor to IDOC.

On September 6, 2006, after the Company and the Workers reached an agreement and the strike was ended, all employees who desired to do so returned to work.

Analysis and Conclusion:

Section 604 of the Act provides, in pertinent part, as follows:
An individual shall be eligible for benefits for any week with respect to which it is found that his total or partial unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment, or other premises at which he is or was last employed…For the purpose of disqualification under this Section the term “labor dispute” does not include a lockout by an employer, and no individual shall be denied benefits by reason of a lockout….

The claimant-appellants argue that IDOC is a co-employer to the Company and that they have been locked out by the “employer.” Clearly, IDOC controlled employee access to SCC. It is a secure facility which houses convicted felons. However, in American Federation of State, County and Municipal Employees, Council 31 v. The Illinois State Labor Relations Board, 216 Ill.2d 569, 839 N.E.2d 479, a case involving IDOC and the same union involved in this matter, the Illinois Supreme Court, reversing the Appellate Court, held that IDOC was not a joint employer, after analyzing almost identical elements of control. Thus, the argument is without merit and is not an issue in this case.

Even so, the claimant-appellants do present arguments which must be considered to resolve the one true issue of this case. The “non-participatory” claimant-appellants wanted to enter SCC in order to work but were prevented from doing so by IDOC. Nonetheless, non-probationary employees, who were members of the same class, were allowed to cross the picket lines by IDOC. As explained above, IDOC is not the appellants’ employer. Therefore, the lockout provision of Section 604 is not available to the appellants. However, the initial question in such a case under Section 604 is whether or not the unemployment of the Non-participating Workers is “due to the work stoppage caused by the labor dispute.” Since other workers were able to cross the picket line and work during the strike, it is quite apparent that the “non-participatory” claimant-appellants would have been working a SCC but for the unilateral action of IDOC.

Non-management employees of the same job title as the appellants were allowed to cross the picket line and work in the capacity for which these claimant-appellants were hired. The claimants, though eager to do so, were not allowed to cross the picket line, despite the willingness of the Company to have them report to work. The only reason given allegedly by IDOC for the distinction was that the claimant-appellants had not completed their 90 day probationary period. The claimants were not required to complete any probationary period before being eligible to become part of the bargaining unit. The Company has no rules which apply only to probationary employees and the Company was not able to determine any other basis for the distinction. There was no evidence as to why there would be a perception of the claimant-appellants posing a higher security risk than post-probationary employees who crossed the picket line. Indeed, even if there were such a distinction, it would not change the fact that the security risk and not the labor dispute cause the unemployment of the “non-participatory” claimant-appellants.

Whatever the true reason, the 90 day probationary employees (i.e., the non-participatory” claimant-appellants) were treated differently by IDOC from other employees belonging to the same grade and class. As stated above, it was this unilateral action of IDOC that caused the unemployment of the “non-participatory” claimant-appellants. The unemployment of the “non-participatory” claimant-appellants is not due to a work stoppage caused by the labor dispute…there was one efficient cause of the claimants’ unemployment and it was not the labor dispute. It was the unilateral actions of IDOC. As the claims adjudicator states, IDOC, is not the employer and the actions of IDOC cannot be attributed to the employer. The actions of IDOC were a separate and the only cause of the claimant’s unemployment.

On December 22, 2006, the Director of Employment Security, Brenda A. Russell, concurred with the decision.

Rod Blagojevich: The Failure of the Sheridan Project – 1st Offense

June 6, 2006

Mr. Rod R. Blagojevich
Governor of Illinois
Office of the Governor
207 State House
Springfield, Illinois 62706

Re: AFSCME (the union) v. Gateway Foundation
Sheridan Correctional Center

Mr. Blagojevich:

On May 1, 2006 I began working for Gateway Foundation (Gateway) as a Counselor III at Sheridan Correctional Center (Sheridan). I was hired by Gateway in May 2005. It took me a year of writing letters to you and the Director of the Illinois Department of Corrections, Mr. Roger E. Walker Jr. to get the Illinois Department of Corrections to allow me access to the Correctional Center.

On June 6, 2006 Gateway employee “union” members of AFSCME decided to go on a strike, stopping their employment with Gateway and Sheridan Correctional Center. I am not a member of this union. Technically, this union does not exist. They are in the bargaining stages with Gateway. There is no union contract between Gateway and AFSCME. Nevertheless, I am not a member of this “union.” I decided I was going to work on June 6, 2006.

On June 5, 2006 I received a call from my superiors stating the Warden of Sheridan decided all “probationary” employees of Gateway would not be allowed in the institution during the strike. This is absurd.

Sir, it appears Sheridan has aligned itself with AFSCME. I believe Sheridan should be a “neutral” partner to Gateway and AFSCME in the bargaining stages and when and if a contract manifest itself. Sheridan should not take a position aligning itself with the union and against Gateway. This takes away from the bargaining processes of the union and Gateway creating disparities. The action taken by Sheridan and Warden is discriminatory.

I need to work. I am not a member of this union. I am not striking. I should be allowed to feed and take care of my family. I have a choice here. There is no reason why Sheridan should disallow access to those Gateway employees who decide to cross the “picket” line. Other Gateway employees are allowed to cross the “picket” line. How can the State of Illinois justify its participation in preventing employees from crossing picket lines? Apparently, there is no danger if some Gateway employees are allowed to cross the picket lines. The State of Illinois cannot take a position determining whether “probationary” employees meet any criteria for non-striking employees, especially when the employees are not State employees, as defined by the State of Illinois.

In May of 2006 I reported to my superiors a phone call I received from Mr. John DiNicola, Staff Representative, AFSCME, Council 31, 29 North Wacker Drive, Suite 800, Chicago, Illinois 60606. I reported Mr. DiNicola threatened me suggesting consequences if I did not join the “union” in their activities of striking. I suggest the consequences Mr. DiNicola alleged are manifesting themselves.

On May 19, 2006 I received a letter at my home from AFSCME suggesting their strike and the bargaining processes they have incurred, before I became an employee of Gateway. I decided I would not take part in a strike against Gateway. I do not agree with a lot of their issues against Gateway. Sheridan is forcing me to take part in this strike.

Therefore, I am requesting an investigation from Mr. James A. Wright, Executive Inspector General for the Office of Executive Inspector General for the Agencies of the Illinois Governor into this matter of Sheridan preventing Gateway employees access to the Correctional Center who have decided not to strike.

Sheridan should not be engaged in choosing sides during this bargaining process between Gateway and AFSCME. Sheridan should not align itself with AFSCME against Gateway during the bargaining process. This alignment negates all good faith bargaining. Sheridan’s alignment appears to suggest a breach of contract.

Gateway is in the business of helping people through their addictions. I am dedicated to this cause.

I want to work. I do not want to strike. I believe this is my right. Please allow me to work to support my family.

Thank you.

Fred L Nance Jr., ABD, MA, CADC, NCRS

cc: Rod R. Blagojevich, Governor of Illinois (fax copies of this letter sent to Chicago and Springfield Offices)
Roger E. Walker Jr., Director of the Illinois Department of Corrections (fax copy only of this letter)
http://clickforjusticeandequality.blogspot.com/ C.L.I.C.K. for Justice and Equality
Gregg Dockins, Director Gateway Foundation Sheridan Correctional Center (fax)

Blagojevich’s Illinois Department of Employment Security: Supplement to Appeal

Update: October 3, 2006

I talked to Ms. Efia Goosby, Illinois Department of Employment Security (IDES) Supervisor on October 2, 2006 requesting she recuse herself from judging my IDES Appeal. Ms. Goosby refuses to include the Illinois Department of Corrections in my appeal, even though I have persisted in requesting their inclusion because they locked me out from my employment, and that they are the “indirect employer” in this matter. I have also left a message with Ms. Goosby’s supervisor Hilda Whittington.

I informed Ms. Goosby one of her line items for discussion in my pre-hearing of September 28, 2006 was “Whether the Administrative Law Judge, Efia Goosby, must disqualify herself from hearing this matter.” Ms. Goosby informed me on October 2, 2006 that this issue will be discussed on October 12, 2006 at my “hearing.” This is absurd.

Update: September 21, 2006

September 21, 2006

State of Illinois Department of Employment Security
Administrative Hearings
Ms. Efia Goosby, Supervisor
33 South State Street, 8th Floor
Chicago, Illinois 60605

Re: Scheduled Pre-Hearing Conference on Docket #DL 59719

Ms. Goosby:

On or about September 18, 2006 I called you regarding the pre-hearing on September 28, 2006 requesting a call back to discuss the consolidation of my case with the individuals who participated in the strike against Gateway Foundation (Gateway), and my bi-weekly unemployment certification.

On September 21, 2006, at approximately 3:35 pm, I called Ms. Hilda Whittington reporting I had not received a call back from you. Ms. Whittington called me back. You called me a few minutes later. You informed me the pre-hearing on September 28, 2006 at 4:00 pm would be a pre-hearing conference to discuss the items to be considered listed on my paperwork. I spoke to you about two issues.

First, about the pre-hearing conference where it is reported my case may be consolidated with the other appeals, which are not similarly situated to my issue, and second, my bi-weekly certification.

On the first issue you informed me you could not speak about the issues being discussed at the conference. I informed you I strongly object to a consolidated hearing with individuals who voluntarily went on strike against Gateway. We are not similarly situated. These individuals participated in a strike where they “voluntarily” walked off their jobs.

According to IDES’ language in their decision denying my unemployment benefits, these individuals are “participating” employees of the strike at Sheridan Correctional Center (Sheridan). Additionally, IDES’ language reports I am a “non-participating” employee locked out from my employment. I was “intentionally” locked out from my employment at Sheridan. Therefore, we are not similarly situated.

In addition, pursuant to the Illinois Unemployment Insurance Act (IUIA), §604-Voluntary Leaving, “an individual shall be ineligible for benefits for the week in which he has left work voluntarily….” The individuals who participated in the strike against Gateway walked off their jobs voluntarily. Pursuant to IUIA, §604-Labor Dispute, “For the purpose of disqualification under this Section the term “labor dispute” does not include a lockout by an employer, and no individual shall be denied benefits by reason of a lockout, provided that no individual shall be eligible for benefits during a lockout who is ineligible for benefits under another Section of this Act…This Section shall not apply if it is shown that (A) the individual is not participating in….”

Sections’ 601 and 604 defines and discusses ineligibility. Individual’s who participated in the strike, whether they were locked out or left work voluntarily, are not eligible for unemployment benefits pursuant to Sections’ 601 and 604. I did not voluntarily leave work. I did not a participant in the strike. I was locked out from employment by the Illinois Department of Corrections (IDOC).

Therefore, my case should not be consolidated with the strikers/participants in the strike.

On the second issue you suggested I wait until the outcome of the hearing. I disagree. On September 11, 2006 I called in to certify for unemployment benefits. This certification was for the weeks covering August 27, 2006 through September 9, 2006. I attempted to challenge the prompts stating I went back to work on September 7, 2006. The prompts would take my request. Therefore, I called my local unemployment office twice on September 11, 2006 and September 12, 2006, leaving a message regarding this issue. I have not received a call back. I informed you I had no other recourse but to alert you to this issue. You informed me you did not know who I should contact other than my local office.

Nevertheless, to avoid the appearance of fraud this is my formal notice to IDES that I am certifying for unemployment benefits for the period of August 27, 2006 through September 6, 2006. You informed me there is no fraud because I have not received any benefits. Therefore, we agreed the issue of fraud is a non-issue because I have not received any benefits.

You also stated you have received my phone number for the telephone pre-hearing conference on September 28, 2006 at 4:00 pm and would be calling me at the designated time. I asked you if I could tape record the pre-hearing conference. You informed me you would be taping the proceedings but I could not. I requested you send me a copy of the legal citations stating I could not tape record the proceedings. You agreed to send me the necessary legal citations before the pre-hearing.

Wherefore, this written statement shall be deemed a part of my discussion scheduled for September 28, 2006 at 4:00 pm. This statement shall hold all the requirements of a lawful and valid statement and shall be construed as a part of the record for September 28, 2006.

I certify that the foregoing writing/statement is true and accurate to best my knowledge.

Respectfully submitted,

Fred L Nance Jr., ABD, MA, CADC, NCRS

cc: Ms. Hilda Whittington (fax only) http://clickforjusticeandequality.blogspot.com/

September 7, 2006

STATE OF ILLINOIS
DEPARTMENT OF EMPLOYMENT SECURITY
LABOR DISPUTE DETERMINATION
U.I. PROGRAM SUPPORT DIVISION, LABOR DISPUTE SECTION
33 SOUTH STATE STREET, 9TH FLOOR
CHICAGO, ILLINOIS 60603

APPEAL OF DETERMINATION
Supplement to Appeal

September 7, 2006

Ms. Efia Goosby, Supervisor
Administrative Hearings Department
33 South State Street
Chicago, Illinois 60603

Ms. Goosby:

I, Fred L Nance Jr., am supplementing my appeal with the following. On September 7, 2006 I returned to work at Sheridan Correctional Center (Sheridan). Sheridan has decided Gateway Foundation (Gateway) staff returning to work from the strike must go through cycle training. Sheridan has determined the time, place and curricula for this demand.

Upon entering Sheridan, I spoke to the Director of Gateway/Sheridan, Mr. Gregg Dockins. Mr. Dockins informed me Gateway has no knowledge of why the staff has to go through the cycle training. Gateway had nothing to do with the scheduling or the curricula. The Illinois Department of Corrections (IDOC) and Sheridan has decided I must take this training again. I completed this training in May of 2006.

As stated in the original appeal, IDOC/Sheridan is my de facto or indirect employer. “Indirect liability results when the defendant employer “so far control[s] the plaintiff’s employment relationship that it [is] appropriate to regard the defendant as the de facto or indirect employer of the plaintiff . . . .” E.E.O.C., supra, 69 F.3d at 169. In other words, “[d]e facto or indirect employer liability depends on the amount of the control a putative Title VII defendant exerts over the plaintiff’s employment.” Kerr, supra, 229 F. Supp. 2d at 886. It “addresses the situation where a formal employment relationship may be absent, but the putative defendant is so extensively involved with the plaintiff’s day to day employment that the putative defendant is the ‘real’ employer for all intents and purposes, including Title VII liability.” Ibid.; see E.E.O.C., supra, 69 F.3d at 171 (explaining how entities that “pull the strings in the background”, and retain employment decision making power, are de facto employers pursuant to Title VII).

In addition, on September 7, 2006 I talked to you requesting information on my administrative hearing date. You informed me you could not talk about my case because AFSCME was IDES’s employees’ union. This is interesting information. When I challenged this answer stating you could not be a unionized employee because you are a supervisor/manager, you informed me you might have to handle my case.

Ms. Goosby, you cannot handle this case because I have discussed this case with you over the phone before you gave me the information you gave me today, September 7, 2006. This case must be handled by a non-union employee. You should have informed me in the beginning there might be a conflict of interest. My rights may have been violated by IDES.

It appears there is a conflict of interest in my case. Who worked on my case from the beginning? Along with Ms. Cheryl Howard, what AFSCME employee worked with her to determine my ineligibility? This may be why IDES ruled against me. The language in IDES’s response to my request for unemployment benefits is tainted with biases and prejudices that may have come from a pro-union belief and standard.

Therefore, I respectfully request an immediate administrative hearing date. IDES has purposely and maliciously ruled against me. I filed my appeal in this matter on or about August 10, 2006. This purposeful delay is further evidence of the biases and prejudices of IDES toward my eligibility for unemployment benefits.

Respectfully submitted,

Fred L Nance Jr., ABD, M.A., CADC, NCRS

cc: Ms. Hilda Whittingham, Supervisor
Ms. Cheryl Howard
http://clickforjusticeandequality.blogspot.com/
http://clickforjusticeandequality2.blogspot.com/
Ms. Brenda Russell, Director IDES

Blagojevich’s Illinois Department of Employment Security, Director Brenda Russell: Where are my unemployment benefits?

Update: January 5, 2006

I received $6175.00 from the Illinois Department of Employment Security today. Thank you Mr. Blagojevich.

Update: December 30, 2006

On or about December 27, 2006, Ms. Goosby returned my call leaving a voice message stating the Director’s decision will post in the system on December 27, 2006. She also stated the local office should take responsibility for disbursing the check for every week I certified for benefits. As of today, December 30, 2006, I have not received my unemployment benefits.

Update: December 23, 2006

I have been informed Ms. Brenda Russell, Director of the Illinois Department of Employment Security, has concurred with Ms. Efia Goosby in the decision to find me eligible for unemployment benefits for the period of June 6, 2006 through September 6, 2006. Further details will be forthcoming.

Update: December 14, 2006

Ms. Goosby returned my call leaving a voice message stating no one objected to her decision. Therefore, her recommendation goes on to Ms. Brenda Russell, Director of the Illinois Department of Employment Security. Ms. Goosby states her decision is a “recommendation” and that Ms. Brenda Russell will make the final decision, which I should receive Ms. Russell’s decision in a few days. I hope Ms. Russell promptly expedites her decision. It is my thought that Ms. Russell will agree with Ms. Goosby decision, and issue my check along with her decision. What can Ms. Russell come up with now to postpone or deny my unemployment benefits?

Update: December 13, 2006

When the Director’s Representative, Efia Goosby Administrative Law Judge Supervisor, issued this “Recommendation” on November 29, 2006 she reports “Objections to this report may be filed within ten days of its date…Copies must also be served upon each party listed entitled to notice….” The only entity entitled to object is Gateway Foundation, Inc. Gateway has not objected. I have not received copies of any objections. Therefore, this recommendation should stand. I am entitled to unemployment benefits for the period of June 6, 2006 through September 6, 2006. The Director’s Representative has not contacted me about my benefit check, which should be in the neighborhood of $6,175.00. On December 13, 2006 at approximately 11:00 pm (CST) I am leaving a message for the Director’s Representative to call me giving information on the approximate date I will receive my unemployment check for the period of June 6, 2006 through September 6, 2006.

Update: November 30, 2006

It appears Governor Blagojevich’s Department of Unemployment Security works toward justice.

I received a “Recommended Decision” from the Director’s representative of the Illinois Department of Unemployment Security reporting “The claims adjudicator’s determination dated August 4, 2006, should be set aside. The claimant-appellants herein should not be ineligible for unemployment benefits under the provisions of Section 604 of the Illinois Unemployment Insurance Act.” There is a footnote: “After considering the Report of the Director’s representative, the objections filed, if any, and the record as a whole, the Director will make the final Department decision and copy will be served upon all parties entitled to notice.”

I await the Director’s decision and my unemployment benefits. It appears there is some justice in Illinois. Governor Blagojevich’s Department appears to work in the storm.

Update: November 11, 2006

The election is over. Governor Blagojevich has been re-elected. Where are my unemployment benefits from being locked out of my employment at Sheridan Correctional Center on June 6, 2006 until September 6, 2006 by the Illinois Department of Corrections when AFSCME the union forced a strike?

I was not permitted to cross the picket lines of the strike. This issue is presently in front of the Illinois Department of Employment Security’s Board of Review, where hearing officer Ms. Goosby is ruling. The telephone hearing was held on October 12, 2006.

Update: October 30, 2006

Ms. Goosby conducted the hearing on or about October 12, 2006. I withdrew my request for her recusal to avoid further delay of these proceedings. I was promised a decision in 2 weeks. There has not been a decision made yet. It appears the Illinois Department of Employment Security is waiting for the Governor’s election to conclude before they make their decision. Remember, this is a department of our “famous” Governor Blagojevich.

Ms. Goosby also sent me the following: §1900. Disclosure of Information A. Except as provided in this Section, information obtained from any individual or employing unit during the administration of this Act shall: 1) be confidential, 2) not be published or open to public inspection, 3) not be used in any court in any pending action or proceeding, and 4) not be admissible in evidence in any action or proceeding other than one arising out of this Act. Does this statement take away or violate my freedom of speech or any other “1st Amendment” right?

Update: October 3, 2006

I talked to Ms. Efia Goosby, Illinois Department of Employment Security (IDES) Supervisor on October 2, 2006 requesting she recuse herself from judging my IDES Appeal. Ms. Goosby refuses to include the Illinois Department of Corrections in my appeal, even though I have persisted in requesting their inclusion because they locked me out from my employment, and that they are the “indirect employer” in this matter. I have also left a message with Ms. Goosby’s supervisor Hilda Whittington.

I informed Ms. Goosby one of her line items for discussion in my pre-hearing of September 28, 2006 was “Whether the Administrative Law Judge, Efia Goosby, must disqualify herself from hearing this matter.” Ms. Goosby informed me on October 2, 2006 that this issue will be discussed on October 12, 2006 at my “hearing.” This is absurd.

October 2, 2006

State of Illinois
Department of Employment Security
Administrative Hearings
Ms. Efia Goosby, Supervisor
33 South State Street, 8th Floor
Chicago, Illinois 60605

Re: Docket #DL 59719:

Ms. Goosby:

First and foremost, I, Fred L Nance Jr., requested dismissal of Ms. Goosby assignment to this matter, as it applies to my issues. I did not have an interest or participate in the strike at Sheridan Correctional Center (Sheridan). I am not a “bargaining unit” member of AFSCME. I am an innocent victim of this strike. Second, the Illinois Department of Employment Security (IDES) interprets Illinois public policy first before attempting to interpret Illinois Supreme and Appellate Court decisions. IDES should not be legislating from their offices from the interpretations of the Illinois Supreme and Appellate Courts. Third, Illinois Supreme and Appellate Courts interpret public policy. They should and do not legislate from the bench. These courts give their opinions of public policies. Fourth, the case presented by AFSCME’s lawyer, Mr. Scott Miller, does not fit squarely with my issues and my particular case.

The Illinois legislature declared public policy underlying the Unemployment Insurance Act is to lighten the burden of involuntary unemployment that “so often falls with crushing force upon the unemployed worker and his family.” 820 ILCS 405/100 (West 1992); see Panther Creek Mines, Inc. v. Murphy, 390 Ill. 23, 28 (1945) (the purpose of unemployment compensation is “to alleviate the distress and suffering occasioned by involuntary unemployment”); see also Outboard, Marine & Manufacturing Co., Johnson Motors Division v. Gordon, 403 Ill. 523, 536-37 (1949) (“the legislature intended to provide for the innocent victims of a labor dispute by specifically excluding them from the denial of unemployment compensation”). Accordingly, the Act is to be liberally construed to provide financial assistance to those who are unemployed through no fault of their own. Bridgestone, 179 Ill. 2d at 155; Cummins, 7 Ill. 2d at 339. This is not legislated by IDES or the Supreme and Appellate Courts.

In contrast, Gateway Foundation (Gateway) AFSCME bargaining unit employees are not eligible for unemployment benefits due to the Illinois Unemployment Insurance Act §604: “Labor dispute. An individual shall be ineligible for benefits for any week with respect to which it is found that his total or partial unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment, or other premises at which he is or was last employed. This Section shall not apply if it is shown that (A) the individual is not participating in or financing or directly interested in the labor dispute which caused the stoppage of work and (B) he does not belong to a grade or class of workers of which immediately before the commencement of the stoppage there were members employed at the premises at which the stoppage occurs, any of whom are participating in or financing or directly interested in the dispute; provided, that a lockout by the employer or an individual’s failure to cross a picket line at such factory, establishment, or other premises shall not, in itself, be deemed to be participation by him in the labor dispute.” 820 ILCS 405/604 (West 1994). The “Participants” (strikers) have an interest in the strike and walked off their jobs.

To be eligible for unemployment insurance benefits under the relieving proviso of section 604, an employee must prove both that he is not directly interested in the labor dispute and that he is not of the same grade or class as employees who are participating in, financing or who hold a direct interest in the labor dispute. International Union of Operating Engineers, Local 148, AFL-CIO v. Illinois Department of Employment Security et al. (2005). I am not directly interested in the labor dispute, nor do I fit the second prong because the class here at Sheridan also includes “Participating and Non-Participating” employees of Gateway/Sheridan as stated, labeled and determined by IDES in their “Labor Dispute Determination.” To develop, capture and entangle me in the strike at Sheridan, AFSCME’s bargaining unit must have a “collective bargaining agreement” (contract) with Gateway and I must be a “Participant” (class) in the strike.

AFSCME bargaining unit employees are not eligible for unemployment benefits because they voluntarily walked off their jobs. AFSCME does not have a “collective bargaining agreement” (contract) with Gateway. AFSCME is the “bargaining unit” for some of Gateway’s employees. I, Fred L Nance Jr., am a Counselor III working for Gateway at Sheridan Correctional Center (SCC)/Illinois Department of Corrections (IDOC)/State of Illinois. AFSCME does not and has never represented me.

IDOC is not part of the bargaining unit, yet it took on the role of participation in the bargaining processes by locking out Gateway employees who wanted to cross the picket lines. IDOC, in all practical terms, assumed the role of the union, forcing “Non-Participants” to participate in the strike. IDOC took on a role that erased Gateway’s essential terms and conditions of employment. IDOC’s behavior was direct and substantial and IDOC’s involvement rose to the level of sharing meaningful control, assuming the role of employer. There was no more of a security problem than there is a security problem now that all Gateway employees are back at work at Sheridan.

IDOC took on a role reporting in IDES’s “Labor Dispute Determination” dated August 4, 2006, “…IDOC states it refuses to allow entry to SCC to the NON-PARTICIPATING WORKERS because various AFSCME bargaining units are the recognized collective bargaining representatives of correctional officers (i.e. security staff) and other IDOC employees at SCC, and therefore the safety and security at SCC could be disrupted if it allowed the NON-PARTICIPATING WORKERS into SCC in order to work before the differences between the UNION and the COMPANY is resolved.”

There was no more of a security issue than it would be today, yet IDOC has given access to all Gateway employees. IDOC had no prison rule to enforce here. This was clearly a right to choose if one wants to cross a picket line or not.

IDOC had control over the Gateway non-participating employees because IDOC locked out the Gateway employees from their employment. Therefore, the case cite below, which was provided by Mr. Scott Miller, AFSCME attorney, does not apply or rule in this instance. IDOC did not exercise “theoretical” control over the Gateway employees. IDOC exacted direct and immediate control over the non-participating Gateway employees when they locked them out from their employment, taking their right to cross the picket lines away from them. IDOC took the direct control out of Gateway’s hand when it denied their employees access to their employment.

If this case is used, then IDES’s rationalization in their “Labor Dispute Determination” would be invalid. IDES reports “…If the NON-PARTICIPATING WORKERS had been denied access to SCC by the COMPANY rather than IDOC, there would be clear justification for not finding them ineligible for benefits…But that is not the case. The COMPANY not only has not prevented the NON-PARTICIPATING WORKERS’ access to SCC, it in fact would very much like them to enter SCC and work. If the COMPANY was in control of SCC this exactly what would happen, and the NON-PARTICIPATING WORKERS, being employed, would not have claims…However, a unilateral action of IDOC over which the COMPANY has no direction or control has frustrated its express desires.”

I have copied and attached to this writing the part of the opinion alleged by Mr. Miller to apply to the strike at Sheridan. This case does not address a strike and whether a “non-participating” employee of a strike can cross a picket line and receive unemployment benefits. This case does not apply to the instant case involving Sheridan Correctional Center.

Fred L Nance Jr.

Docket No. 99074-Agenda 14-May 2005.
AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 31, Appellee, v. THE ILLINOIS STATE LABOR RELATIONS BOARD, STATE PANEL, et al. (The Department of Central Management Services et al., Appellants).

Opinion filed October 6, 2005.

JUSTICE FREEMAN delivered the opinion of the court:

This case arises from a decision of the Illinois State Labor Relations Board, State Panel (Board), dismissing a certification petition and a related unfair labor practice claim filed by the American Federation of State, County, and Municipal Employees, Council 31 (AFSCME). The appellate court, on administrative review, set aside the Board’s decision. 351 Ill. App. 3d 707. We granted leave to appeal (177 Ill. 2d R. 315) and now reverse the judgment of the appellate court.

As an initial matter, Wexford maintains in its brief that this matter has been preempted by federal law, specifically the National Labor Relations Act (National Act). Wexford points out that AFSCME, in this action, is attempting to organize a group of employees that it acknowledges is already covered by a collective-bargaining agreement negotiated under the National Act. Put another way, AFSCME seeks the right to bargain with two employers, a private company and a state governmental agency, under two different labor relations statutes with respect to one group of employees. As such, AFSCME is asking to be the employees’ sole bargaining representative under our state labor relations act just as it already is under the National Act. Wexford maintains that such simultaneous or concurrent jurisdiction has never been recognized by any agency or judicial opinion.

As noted earlier, both Wexford and CMS raised this very issue before the Board by way of a motion to dismiss. The Board denied the motion because it was not clear that its jurisdiction was preempted. To that end, the Board ordered that a hearing be held in order to determine whether the employees at issue were, in fact, joint employees of the DOC under the Illinois act. The Board further indicated that if it were to find that a joint employer relationship existed between Wexford and the DOC, the Board would then petition the National Labor Relations Board for an advisory opinion as to whether the joint employer status, as contemplated in this case, would violate principles of federal preemption. However, at the conclusion of the hearing, the Board concluded that the DOC was not an employer of the petitioned-for employees under the Illinois act and that it lacked jurisdiction over the matter.

In its brief, CMS has not iterated its previous arguments made before the Board with respect to preemption. CMS, represented by the Attorney General, maintains that the issue need not be addressed in resolving this appeal. Indeed, at oral argument in this case, all of the parties agreed, including Wexford, that this court need not address the question of federal preemption because if the appellate court’s conclusion that the DOC is a joint employer were to be upheld, the Board would seek an advisory opinion from the National Labor Relations Board on the matter. See 29 C.F.R. pt. 100, §101.39 (2003).

Thus, while we believe that the question of whether it is possible for both the Board and the National Labor Relations Board to assert concurrent jurisdiction over a single group of employees is both novel and interesting, given the arguments and representations of the parties at oral argument, we decline to address the issue of federal preemption. We therefore proceed to the question of whether the Board’s decision, that the DOC is not a joint employer of the petitioned-for employees, should be confirmed.

Judicial review of a decision of the Board is governed by the Administrative Review Law. See 5 ILCS 315/11(e) (West 2000); 735 ILCS 5/3-101 et seq. (West 2000). Under the Administrative Review Law, the scope of judicial review extends to all questions of law and fact presented by the record before the court. 735 ILCS 5/3-110 (West 2000).

The applicable standard of review depends upon whether the question presented is one of fact, one of law, or a mixed question of fact and law. AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 390 (2001). Questions of law are reviewed de novo. Branson v. Department of Revenue, 168 Ill. 2d 247, 254 (1995). An agency’s findings and conclusions on questions of fact shall, by statute, “be held to be prima facie true and correct.” 735 ILCS 5/3-110 (West 2000); City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 204 (1998). As such, when a court is reviewing an agency’s factual findings, it will not reweigh the evidence nor will it substitute its judgment for that of the agency. Rather, the court will ascertain only if the findings of fact are against the manifest weight of the evidence. City of Belvidere, 181 Ill. 2d at 204.

Mixed questions of fact and law are “questions in which the historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the statutory standard, or to put it another way, whether the rule of law as applied to the established facts is or is not violated.” Pullman-Standard v. Swint, 456 U.S. 273, 289 n.19, 72 L. Ed. 2d 66, 80 n.19, 102 S. Ct. 1781, 1790 n.19 (1982). Mixed questions of fact and law are subject to reversal only when deemed “clearly erroneous.” AFM Messenger, 198 Ill. 2d at 395. A decision is “clearly erroneous” when the reviewing court is left with the definite and firm conviction that a mistake has been committed. AFM Messenger, 198 Ill. 2d at 395, quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 92 L. Ed. 746, 766, 68 S. Ct. 525, 542 (1948).

The question of whether the DOC is a joint employer under the Illinois Public Labor Relations Act is a mixed question of law and fact. The parties are not in dispute as to the DOC’s involvement in matters such as recruitment, hiring, training, wages, benefits, scheduling, direction, evaluation, discipline, and discharge. The only question is whether, given these facts, the DOC is a joint employer of the Wexford employees under the Illinois Labor Relations Act. Thus, we review the Board’s decision under the clearly erroneous standard noted above.

AFSCME maintains that the Board erred by overlooking the significant amount of control the DOC has retained for itself over the terms and conditions of the Wexford employees’ employment. Citing to both federal and state labor relations cases, AFSCME argues that it is the DOC’s theoretical, indirect control over the terms and conditions of employment and not its actual exercise of (or lack thereof) control over those terms and conditions that is dispositive. We disagree.

Contrary to AFSCME’s contentions, joint employer status does not turn on theoretical control over the terms and conditions of employment. In Village of Winfield v. Illinois State Labor Relations Board, 176 Ill. 2d 54, 60 (1997), this court considered whether two entities were joint employers under the Illinois Labor Relations Act. In so doing, we enunciated the following test to be used when undertaking a joint employer assessment: “The test for the existence of joint employers is whether ‘ “two or more employers exert significant control over the same employees-where from the evidence it can be shown that they share or co-determine those matters governing essential terms and conditions of employment.” ‘ Orenic v. Illinois State Labor Relations Board, 127 Ill. 2d 453, 474 (1989), quoting National Labor Relations Board v. Browning-Ferris Industries of Pennsylvania, Inc., 691 F.2d 1117, 1124 (3d Cir. 1982).

Relevant factors to consider in making this determination include the ‘putative joint employer’s role in “hiring and firing; promotions and demotions; setting wages, work hours, and other terms and conditions of employment; discipline; and actual day-to-day supervision and direction of employees on the job.” ‘ Orenic, 127 Ill. 2d at 475, quoting J. Jansonius, Use and Misuse of Employee Leasing, 36 Lab. L.J. 35, 36 (1985). An important consideration in determining whether a particular entity is an employer is the extent to which that entity is necessary to create an effective bargaining relationship.” Village of Winfield, 176 Ill. 2d at 60.

We note that the above citation reveals that the standard set forth in Winfield was predicated upon the same standard utilized under federal law with respect to joint employer status. This is so because, in labor cases, “the rulings of the National Labor Relations Board (NLRB) and the Federal courts when these bodies construe the National Labor Relations Act are persuasive authority for similar provisions in the State Act.” American Federation of State, County & Municipal Employees v. Illinois State Labor Relations Board, 190 Ill. App. 3d 259, 264 (1989).

The test enunciated in Winfield remains consistent with that utilized in federal cases addressing joint employer status. Indeed, the National Labor Relations Board has recently noted: “[T]he Board’s test for determining whether two separate entities should be considered to be joint employers with respect to a specific group of employees has been a matter of settled law for approximately 20 years. In determining whether a joint employer relationship exists under this test, the Board analyzes whether putative joint employers share or co-determine those matters governing essential terms and conditions of employment. See, e.g., Texas World Service Co. v. NLRB, 928 F.2d 1426, 1432 (5th Cir. 1991); NLRB v. Browning-Ferris Industry, 691 F.2d 1117, 1124 (3rd Cir. 1982); TLI, Inc., 271 NLRB 798 (1984), enfd. mem. 772 F.2d 894 (3d Cir. 1985).

The essential element in this analysis is whether a putative joint employer’s control over employment matters is direct and immediate. TLI, Inc., 271 NLRB at 798-799.
Thus, approximately 20 years ago, the Board, with court approval, abandoned its previous test in this area, which had focused on a putative’s joint employer’s indirect control over matters relating to the employment relationship.” Airborne Freight Co., 338 N.L.R.B. 597, 597 n.1 (2002). Thus, under federal law, theoretical control is not dispositive to the determination of joint employer status.

We further note that the state labor decisions cited by AFSCME in support of its theoretical-control argument, specifically Elmhurst Park District, 16 Pub. Employee Rep. (Ill.) par. 2042, No. S-RC-00-097 (ISLRB General Counsel August 30, 2000), do not compel a departure from the above principles. According to AFSCME, Elmhurst stands as authority for the proposition that the theoretical control which an entity may exercise should be the standard which is used to determine whether it is a joint employer rather than the actual control which it does exercise.

We have reviewed Elmhurst, however, and find it inapposite. Elmhurst involved an entity, the Sugar Creek Golf Course, which was created by an intergovernmental agreement between two public bodies, the Village of Villa Park and the Elmhurst Park District. The Board noted that “the terms of that agreement are critical in deciding what public body has authority as a public employer over the employees of that entity.” Thus, in assessing which public body employed the people who worked at the Sugar Creek Golf Course, the Board looked to the language of the intergovernmental agreement which specifically defined that reserved authority.

In this case, there is no intergovernmental agreement. Rather, there are only vendor contracts between a public entity and a private company. Moreover, unlike the intergovernmental agreement in Elmhurst, which created the specific entity by which the petitioned-for employees are employed, the vendor contracts here did not create Wexford. Given these critical distinctions, we cannot agree with AFSCME’s assertion that Elmhurst controls the resolution of the instant case.

In light of the above, we are convinced that the Board in this case employed the correct legal standard to assess whether the DOC was a joint employer of the Wexford employees. Accordingly, we turn our analysis to the question of whether the Board’s conclusion that the DOC was not a joint employer is clearly erroneous.

In this case, the ALJ found, and the Board agreed, that Wexford’s control over matters governing the essential terms and conditions of employment was direct and substantial and that the DOC’s involvement did not rise to the level of sharing meaningful control. We agree and do not believe that the Board’s decision was clearly erroneous.

Uncontroverted facts entered into evidence at the Board hearing included consideration of all of the relevant terms and conditions of employment, which we address in turn.
With respect to hiring, Wendy Milner, Wexford’s director of Human Resources in Risk Management, testified that the DOC has no control or involvement in the recruitment and hiring of Wexford employees. Wexford solely assesses its recruiting needs, identifies candidates, accepts applications and resumes, and conducts interviews. Wexford then makes the hiring decision without consultation with or any input from the DOC.

Although testimony revealed that the DOC does conduct a background check of Wexford employees, such a check exists for security purposes only and is unrelated to hiring considerations made by Wexford. The background check is required of all DOC employees, contract employees, consultants, interns, volunteers and anyone allowed regular access to a DOC facility.

Another term and condition of employment is wages. Theodore R. Sucher III, Wexford’s executive vice president for operations, testified that the wages paid to Wexford employees are the result of negotiations memorialized in the binding collective-bargaining agreement between Wexford and AFSCME. Although the vendor contracts between Wexford and the DOC are based upon a certain hourly rate for each staff position, it is done so to calculate the total amount of compensation to be provided to Wexford under their vendor contract.

It does not bind Wexford to adhere to those calculations in deciding what to pay its own employees. Rather, Wexford is bound by the terms of its collective-bargaining agreement with AFSCME. Evidence established at the hearing revealed that those wages can and do differ from the rates delineated in the vendor contracts. Additionally, pursuant to the collective-bargaining agreement between AFSCME and Wexford, Wexford employees are paid time and one-half after 40 hours in any given week or after eight hours in any given day. Sucher also testified that overtime must be approved by a Wexford manager.

The DOC may or may not reimburse Wexford partially for such overtime depending on the circumstances and pursuant to the terms of the vendor contracts with Wexford. Whether the DOC selectively decides to reimburse Wexford, Wexford is bound legally and under the terms of its agreement with AFSCME to pay the employees such overtime. Given this evidence, we cannot say that the Board clearly erred in finding that the DOC had little meaningful control over this particular term of employment.

Another example of the exclusivity of Wexford’s control over its employees is found in paid-time-off requests. Milner testified that, in order to use one’s paid time off, an employee submits a request slip which is reviewed for approval by a Wexford on-site manager or regional manager. If approved, a copy of the request is then provided to the “Health Care Unit Administrator” (HCUA). The HCUA is a DOC employee whose role is to facilitate management of the vendor contracts by monitoring compliance with the contract and assuring safety of the unit. The HCUA may make a recommendation to the Wexford manager concerning the operational needs of the facility, but he or she has no authority to approve or deny a paid-time-off request. There have been occasions when concerns have been raised by the HCUA about operational needs, but the Wexford manager has approved the paid-time-off request nonetheless. Milner averred that Wexford’s paid-time-off provisions are distinctly different from the paid-time-off provisions offered by the DOC to its employees.

With respect to performance evaluations, the record reflects that such evaluations are conducted by Wexford managers. These evaluations are recorded on a standard Wexford evaluation sheet which is different from the evaluation sheet used by the DOC for its employees. The original evaluation is forwarded to Wexford’s main office in Pittsburgh, a copy is placed in the local facility’s file and a copy is given to the employee for retention. Milner testified that once the evaluation is completed, it is forwarded to the HCUA for signature. According to Milner, the purpose for the HCUA signature is simply to demonstrate to the DOC that Wexford is satisfying the terms of the vendor contract by ensuring premium care. On rare occasions, particularly where there is no on-site Wexford supervisor, an HCUA may provide input into the evaluation. However, this input may or may not be incorporated into the formal evaluation based on Wexford’s judgment and does not affect an employee’s wages. The record therefore supports the Board’s conclusion that the DOC had little meaningful control over this particular condition of employment.

Discipline is another relevant term and condition of employment. According to the testimony of Susan Walker, regional manager of Wexford and formerly an HCUA with the State of Illinois, Wexford employees are subject to Wexford rules and regulations under its “Code of Conduct” contained in the employee handbook. Violation of any of the 31 listed items subjects an employee to the company’s progressive discipline system. The process and any resulting disciplinary measures which are taken are initiated and ultimately decided by Wexford supervisors or managers. Disciplinary issues may be raised by an HCUA or medical director, but they are directed to the Wexford officials who then determine an appropriate course of action. All discipline issued by Wexford between January 2000 and the date of the hearing (approximately 100 occasions) was the independent decision of Wexford, not the DOC. In fact, testimony revealed that DOC employees do not have the authority to discipline any Wexford employees. In light of this evidence, we cannot say the Board clearly erred in finding that the DOC had little meaningful control over discipline.

We note at this juncture that both the appellate court and AFSCME put emphasis on the HCUA’s involvement with Wexford employees in matters such as the paid-time-off and disciplinary measures as an example of joint employer control in that the DOC is responsible for the day-to-day direction of Wexford employees. In contrast, the Board ruled that the HCUA’s participation in these activities was limited solely to their capacity as a monitor of the vendor contract between the DOC and Wexford and to ensure compliance therewith.

In so ruling, the Board relied on its previous decision, Illinois Departments of Central Management Services & Corrections, 4 Pub. Employee Rep. (Ill.), par. 2034, No. S-CA-100 (ISLRB July 20, 1988), where it held that such operational controls go to the issue of contract compliance as opposed to control over the essential terms and conditions of employment. We agree and note that Board’s approach to this question is consistent with that of the National Labor Relations Board in similar circumstances. For example, in Local 254, Service Employees International Union, 324 N.L.R.B. 743 (1997), the National Board found that the direct supervision by the putative joint employer over the employees for purposes of “assuring that it received contracted services” was not sufficient to impose a joint employer status. Local 254, Service Employees International Union, 32 N.L.R.B. at 748. The Board, in our view, did not clearly err in characterizing the HCUAs’ involvement as being one related to mere contractual compliance as opposed to control over the day-to-day direction of the Wexford employees.

Further testimony at the hearing by Thomas Page, deputy director of the DOC, revealed that wardens at any of the DOC facilities have the authority to issue a “stop order” barring an individual from access to that facility. Stop orders are typically issued by the warden any time he or she determines that any individual poses a threat to the security or safety of the facility or an inmate. It applies to anyone entering the facility, including visitors, employees, volunteers, chaplains, vendors or contract employees. According to the testimony of Sucher, in the event that a stop order is issued against a Wexford employee, Wexford officials decide whether, in their view, it was an appropriate action and may petition the DOC to reverse its decision.

A stop order is not tantamount to a discharge. In the event that the DOC does not remove the stop order, Wexford may offer the employee a position at one of its other non-DOC facilities. Article XV of the collective- bargaining agreement between Wexford and AFSCME specifically provides that a stop order does not automatically result in termination until an investigation and hearing have been conducted pursuant to the grievance provisions under the terms of their collective-bargaining agreement. Although AFSCME contends that the warden’s power to issue a stop order is tantamount to control over firing, evidence at the hearing established that Wexford has the sole ability to discharge any of its employees without input or approval from the DOC. The state cannot and has never discharged a Wexford employee.

Notwithstanding the above evidence, both AFSCME and the appellate court assign great weight to the warden’s power to issue a stop order and equate it with control over termination, which both maintain raises the DOC to the level of joint employer. We disagree.

In rejecting this argument, the Board cited to its previous decision in Illinois Department of Central Management Services & Corrections, 4 Pub. Employee Rep. (Ill.) par. 2034, in which it refused to equate the denial of access to a prison for security purposes with discharge from employment. We do not believe the Board erred in this respect.

Indeed, the Board’s approach to this question, i.e., whether the ability to enforce prison security rules renders a prison the employer of those who fall within the ambit of the security directive, finds support in judicial opinions where the ability to deny access to a prison has been claimed to render a prison an employer. For example, in her recommended decision and order, the ALJ cited the opinion of Hojnacki v. Klein-Acosta, No. 00 C 1356, 3095 (N.D. Ill. 2001).

There, the plaintiff was an employee of a private company that contracted services to the DOC. The court held that the State was not plaintiff’s employer for purposes of her Title VII claims. Relevant to this issue in this case is the court’s conclusion that “the fact that Hojnacki (contract employee) was subject to the prison’s security regulations does not make her an employee of the DOC.” Hojnacki, slip op. at 13. The court acknowledged that although “valid penological measures imposed to ensure safety and security within a facility may require a worker to fulfill certain conditions, those conditions do not rise to the level of ‘control’ for purposes of determining a worker’s employment status with the correctional facility itself.”

On appeal, the United States Court of Appeals for the Seventh Circuit affirmed, stating “one can ‘control’ the conduct of another contracting party by setting out in detail his obligations; this is nothing more than the freedom of contract. This sort of one-time ‘control’ is significantly different than the discretionary control an employer’s daily exercises over its employees’ conduct.” Hojnacki v. Klein-Acosta, 285 F.3d 544, 551 (7th Cir. 2002), quoting Equal Employment Opportunity Comm’n v. North Knox School Corp., 154 F.3d 744, 748 (7th Cir. 1998).

Similarly, in Lambertsen v. Utah Department of Corrections, 79 F.3d 1024 (10th Cir. 1996), the Tenth Circuit Court of Appeals recognized the unique circumstances of a private employee working in a penal institution. The case involved a teacher’s assistant working for an independent contractor (a school district) within the Utah Department of Corrections. The court refused to characterize the Utah Department of Corrections as an employer because the Department only controlled aspects of prison security while the school district controlled the hiring, firing, wages and benefits of school employees who were assigned to the prison school.

Although the Department exercised some control over the plaintiff for security purposes when she was within the confines of the prison, the ultimate control over her employment was exercised by the school district. In other words, there was no basis to find that the Department controlled the means or the manner in which the plaintiff performed her day-to-day work. Lambertsen, 79 F.3d at 1029. We agree with the reasoning outlined in the above federal cases and hold that the Board did not clearly err in finding that the control that DOC may exert over Wexford employees with respect to prison security and safety does not rise to the level of ‘control’ for purposes of determining employer status under the Illinois Labor Relations Act.

After reviewing the evidence adduced at the hearing, we cannot say the Board clearly erred in determining that the stop-order situation was merely authority which each facility reserves purely for security purposes and not for employment purposes. The record establishes, according to the testimony of Page that stop orders apply to everyone entering the facility, including visitors, employees, volunteers, chaplains, vendors or contract employees. In the only two specific instances cited by AFSCME in its brief and corroborated by the record, one involved the revocation of an employee’s security clearance on two occasions because she did not meet the requisite licensing requirements of the state for a psychologist. Although the DOC was persuaded to waive the requirement for this employee after the first stop order, it chose to discontinue the waiver a second time due to an incident related to her performance. It was then that Wexford discharged the employee, not the DOC, after notice and a hearing, in accordance with the grievance procedures outlined in Wexford’s collective-bargaining agreement with AFSCME. The second instance cited by AFSCME involved an employee who failed a required drug test. Again, after notice and a hearing, Wexford made an offer to the employee to allow her to resign. The offer was rejected, so she was discharged by Wexford, not the DOC.

After carefully reviewing all of the evidence adduced, we cannot say that the Board clearly erred in ruling that the Wexford employees were not jointly employed by the DOC. With respect to hiring and firing, promotions, and demotions, setting wages, work hours, discipline, and actual day-to-day supervision and direction of employees on the job, the evidence supports the Board’s finding that the DOC did not share or codetermine control over these matters so as to be considered a joint employer. Moreover, we agree with the sentiment expressed by the Board at the conclusion of its written decision: “The Board’s lack of jurisdiction over [the Wexford] employees does not completely remove them from the purview of collective bargaining. Rather, it simply removes them from the jurisdiction of the [Illinois State Labor Relations] Act.

However, these employees are currently represented by AFSCME and are covered by the [National Labor Relations Act]. They are thus not in the collective bargaining “no-man’s land” in which many subcontracted employees of a public sector entity find themselves. On the contrary, the petitioned for employees possess the rights guaranteed by the National Labor Relations Act and may enforce those rights at the National Labor Relations Board.

Thus, AFSCME may seek redress for any disruption or potential unfair labor practice in its bargaining relationship with Wexford from the National Labor Relations Board. That is, if Wexford has relied on its connection with the State to justify an alleged refusal to bargain over certain terms and conditions of employment, or if AFSCME has been unable to process grievances under the collective bargaining agreement’s grievance procedure because the State has denied its stewards access to the employees workplaces, AFSCME can pursue resolution of those matters with the National Labor Relations Board pursuant to the National Labor Relations Act’s unfair labor practice provisions.”

It is clear from the record that the DOC has little meaningful control over the conditions and terms of the Wexford employees’ employment. The Board did not err in reaching this conclusion, and its decision on this matter should not be disturbed. In light of our resolution of the joint employer status question, the Board’s dismissal of the related unfair labor practice charge was correct.

CONCLUSION

The Board’s determination that the DOC is not a joint employer of the Wexford bargaining unit employees was not clearly erroneous. For the foregoing reasons, the judgment of the appellate court is reversed and the decision of the Board is confirmed.

This court decided this case on the record of this case. Defining employer for this case was determined from the facts of this case. AFSCME’s bargaining unit at Sheridan has no contract with Gateway and its employees. IDOC/State of Illinois took full and complete control of Gateway’s “Non-Participating” employees when they locked them out because they did not participate in the strike. IDOC/State of Illinois took and assumed meaningful control over the conditions and terms of Gateway’s “Non-Participating” employees’ employment. [Emphasis added]

cc: http://clickforjusticeandequality2.blogspot.com/
Ms. Hilda Whittington, Supervisor

AFSCME Local 472: Unfair and unethical bargaining unit practices

Reference: National Legal and Policy Center “Union Corruption and the Law” by Phillip B. Wilson located on their website at http://www.nlpc.org/

Update: January 18, 2007

Racism is alive in the AFSCME union at Sheridan. It can be overt or subtle. Please, do not get it twisted. Racism is alive and well.

It appears AFSCME union members are misusing the tools of IDOC. It appears AFSCME union members have made statements against Mr. McDaniels that are false. Mr. McDaniels has sent me a posting requesting publication. If his comment is true, AFSCME union members have gone buck wild at Sheridan. The ramifications of someone making false and misleading statements leading to lockout is tremendous. What prevents someone from planting contraband in another’s office that breaks the rules of IDOC policy?

Isaac told me in a telephone conversation others have brought cell phones into the institution by mistake, and they were taken away from them, and given back at the end of day. This appears to be escalating, possibly turning into a fiasco.

In addition, AFSCME has made this a black and white issue. These AFSCME union members would not have lied or even brought this issue of Isaac having his cell phone if Isaac had been white. Isaac made an honest mistake. He forgot to take his cell phone out of the inside pocket of his jacket.

In addition to this: I found out today my insurance with the new vendor may not cover my pre-existing medical problems. This pre-existing medical problem coverage is determined by one having insurance 60 days before the start of the new coverage. If a person has had medical insurance 60-days before starting insurance with Anthem Blue Cross/Blue Shield, which is the insurance of the new vendor, then their pre-existing medical issues/problems are covered.

Because of the AFSCME strike on June 6, 2006 I have been without medical insurance over the 60-day limit. I could not get insurance from the previous vendor at Sheridan because of the strike. When the strike was over on September 6, 2006, I could not acquire the insurance from the previous vendor because I could not afford to have it taken from my check. Therefore, I have not had medical insurance in 9 months.

Therefore, I cannot acquire insurance from the new vendor that will pay for my pre-existing high blood pressure diagnosis; and subsequently, I will not have medical insurance to pay for my high blood pressure medication.

The AFSCME union members who falsified charges against Isaac may be guilty of a criminal act. This needs to be investigated by Internal Affairs of IDOC. My fight with AFSCME continues.

Update: January 18, 2007

January 18, 2007

Mr. Henry Bayer, Executive Director
AFSCME Council 31, AFL-CIO
29 North Wacker Drive, Suite 800
Chicago, Illinois 60606
Re: Isaac McDaniel

Mr. Bayer:

On or about January 17, 2007 Isaac McDaniel’s security clearance was pulled from the Illinois Department of Corrections (IDOC). Isaac brought his cell phone into the Sheridan Correctional Center (Sheridan) by mistake. Sheridan acted correctly in taking Isaac’s clearance because of the clear violation of their policy. Sheridan did nothing wrong.

Isaac’s mistake was brought to the attention of IDOC by your present “card” carrying members of your bargaining unit at Sheridan. This was wrong. When Isaac went into his pocket, looking for his cigarettes, he pulled out his cell phone. This happened in front of 1 or 2 of your “card” carrying members. Your present “card” carrying members should have informed Isaac to take his cell phone back to his car immediately. It was a mistake. Instead, one of your “card” carrying members vindictively informed IDOC as if Isaac brought the cell phone in on purpose to let an inmate use it.

Isaac joined your union and was a “card” carrying member. During the strike of June 6, 2006 at Sheridan, Isaac joined his “card” carrying members on the strike line. When Isaac’s economic situation worsened, he had to cross the line to assure his financial security. The same people he sat on the line with turned him in to IDOC as if he intentionally violated their policy. Your “card” carrying members violate policy everyday.

May I remind you, I never joined your union during the strike of June 6, 2006. I have been contemplating my membership since Sheridan will officially become a union shop for the new vendor. I am unsure of this move now. Nothing has changed with the ideologies of your present “card” carrying members. Their memories are ever present in their actions.

Nevertheless, I received a letter dated September 29, 2006 from Attorney Scott Miller, AFSCME Counsel, stating in part, “As a bargaining unit member covered by AFSCME Council 31, Local 472 (Union), the Union hereby offers to represent you, free of charge, at the above referenced Illinois Department of Employment Security case…If you are interested in Union representation during the proceeding, please contact me at (312), 641-6060, ext, 4354, no later than noon on Thursday, October 5, 2006.”

Is Isaac getting the same response? Local 472 is still in place. Isaac was once a “card” carrying member of your union. I was never a “card” carrying member of your union, yet your union offered me assistance. Will your union advocate for Isaac? Will you leave him out in the cold? Is this the message you want to send to the world? I did not ask for representation from your union, yet your union offered its services because I was part of the bargaining unit at Sheridan. Isaac is part of the bargaining unit at Sheridan. Who will assist him? Or Is your union, at Sheridan, on a mission to destroy the people who did not follow it during the strike of June 6, 2006. This is typical. If your union does not represent Isaac in his issue, then your union does not represent the “total” bargaining unit members of the new vendor at Sheridan, as you proclaim and advocate and as I have suggested in other writings.

I did not contact your union requesting representation. The union lawyer contacted me advocating his representation. Does Isaac deserve the same? Do you condone what your “card” carrying members did to Isaac? Is this your justice to those who did not participate in your strike of June 6, 2006? If this is your union’s justice and plan for how you will operate at Sheridan, then everyone better look out.

Sir, I was right about your union all along. Thanks for confirming my suspicions. AFSCME, Council 31, Local 472, cannot be trusted. People should be able to have an opinion and belief, as I did, when not joining your strike of June 6, 2006. People should have an opinion and belief, as I do, contemplating joining your union believing we can put things and leave things, and bad feelings in the past. These opinions and beliefs should be honored by the honorable. Yet, I do not believe your union is honorable. Prove me wrong or right, as your “card” carrying members have with Isaac.

Isaac made a mistake. Isaac has been loyal to his employer and to your union, believe it or not. Isaac may have been a target to others because he joined your strike of June 6, 2006. It appears, and prima facie, that Isaac was a target of the people at Sheridan I so accurately described. I guess those that opposed your strike of June 6, 2006 are still targets of your “card” carrying members at Sheridan. This will make good news to all.

Isaac made a mistake. Your “card” carrying members make mistakes every day. I have been watching my back for the “knives” your “card” carrying people carry. Your union is vindictive as ever. It appears there will never be peace at Sheridan between those who are “card” carriers and those who do not. This is not a union I would be proud to join. A person cannot have an opinion. They must think like you, walk like you, and look like you. For Isaac, this is your justice. This is the only justice your union knows. This is the union I have been talking about. Your true face appears.

Respectfully submitted,

Fred L Nance Jr., ABD, MA, CADC, NCRS

cc:

http://click.townhall.com/
http://clickforjusticeandequality.blogspot.com/

Update: January 2, 2007

While researching my issues for the upcoming litigation in Federal Court against AFSCME, specifically Local 472, I discovered a tactic this union is possibly pursuing with the new vendor. I believe this union is pursuing a “closed shop” with the new vendor instead of an “open shop.”

The term “closed shop” is used to signify an establishment employing only members of a labor union. The union shop, a closely allied term, indicates a company where employees do not have to belong to a labor union when hired but are required to join within a specified period of time in order to keep their jobs. In the alternative, an employment “open shop”, strictly speaking, is one that does not restrict its employees to union members or membership.

I am not sure why the new vendor would subject its employees to the strict standard of a “closed shop”, but it is worth investigating since it will impact my employment and salary. The new vendor taking a position of an “open shop” with AFSCME can be negotiated, especially since AFSCME does not want to adopt the doctrine of cultural diversity in its leadership or Board leading to fairness and equality for the employees (counselors) it plans to represent at Sheridan Correctional Center (Sheridan).

Many states either by legislation or by court decision have banned the “closed shop.” In 1947 the Taft-Hartley Labor Act declared the “closed shop” illegal. Arguments in favor of the “open shop” are that forcing unwilling workers to pay union dues or agency fees is an infringement of their rights; that union membership is sometimes closed to certain workers or the initiation and/or agency fee is so high as to be an effective bar to membership; and that “employers” are deprived of the privilege of hiring competent workers or firing incompetent ones.

Presently, AFSCME does not have enough votes to call a strike against the new vendor if their demands are not met. If the new vendor allows AFSCME to have a “closed shop” it will be able to call a strike if their demands are not met.

In the United States Court of Appeals for the 7th Circuit it suggests a union becomes the exclusive bargaining representative for a group of employees when explicit voluntary recognition occurs by an employer who expressly assents to a union’s representation. See Jefferson Smurfit Corp., 331 N.L.R.B. 809, 809 (2000); or implicit voluntary recognition occurs when an employer’s statements or conduct clearly and unequivocally demonstrate that it has made a commitment to enter into negotiations with a union. See Nantucket Fish Co., 309 N.L.R.B. 794, 795 (1992). The NLRB has consistently held that merely reviewing authorization cards does not count as implicit recognition. See Jefferson Smurfit Corp., 331 N.L.R.B. 809, 809 (2000). Furthermore, the court notes that the NLRB’s decision is consistent with national labor policy, which favors the voluntary recognition of a majority union. See NLRB v. Lyon & Ryan Ford, Inc., 647 F.2d 745, 750 (7th Cir.1981). AFSCME, specifically Local 472, does not have a majority union.

If the new vendor allows this “closed shop”, what is the agency fee? I will research this issue more closely and will provide a follow up report. The follow up report will encompass an analysis of other Illinois State agency contracts where AFSCME represents its employees, specifically, where there are non-union employees, such as the Illinois Department of Employment Security and the Illinois Department of Health and Human Services. There may be mitigating issues here.

The new vendor must acknowledge there is no one advocating for those who oppose this union’s cultural diversity disparity. We are left out of the loop for all practical purposes of negotiating a meaningful contract that includes all the people.

Update: December 30, 2006

As previously reported on this site: On December 20, 2006 Mr. Henry Bayer, Executive Director of AFSCME, responded to a letter I sent to him suggesting his collective bargaining unit for the counselors at Sheridan Correctional Center (Sheridan) is discriminating against others of cultural differences. This collective bargaining unit has no cultural diversity attached to its board members. There are no latinos or blacks sitting as Board members for AFSCME’s collective bargaining unit at Sheridan. There may have been blacks on their Board when they first started the collective bargaining unit at Sheridan, but after this union’s strike fiasco on June 6, 2006 the blacks that were apart of the bargaining unit declined their memberships. For this cause, new Board members of latinos and blacks must be present in the collective bargaining practice for it to have meaning of representing all the counselors at Sheridan to the new vendor. Why should the new vendor honor any proposal from AFSMCE’s collective bargaining unit if it does not represent all the counselors?

Mr. Rob Fanti believes he does not have to put any “latinos or blacks” on “his” Board. I guess Mr. Bayer and Fanti believe they know how “lationos and blacks” think and what their needs are. The people who are on this Board bring information to their “respective” class members only. By the absence of latinos and blacks on this Board, there is not a dissemination of information about the proposal and any proposed union business to others who are not part of clique. Therefore, we should not have to pay any type of dues to this union.

This union’s actions are certainly a norm for that part of our society who oppressed and discriminated against “blacks” for over 400 years. AFSCME’s discrimination continues at Sheridan.

When I, as a black man, requested to be on their Board, Mr. Bayer responds: “If you sign a membership card, then you have the right to vote and to run for elected positions.” This is an absurd answer. I do not need a membership card for this collective bargaining unit to represent me at the bargaining table with new vendor at Sheridan. Therefore, why should I need a membership card to be part of the bargaining practice at Sheridan. There is something wrong with this picture, and our society who allows this to happen.

There needs to be and must be stronger legislation against union activities as suggested in the writing “Union Corruption and the Law” by Phillip B. Wilson. There should be a public outcry about the way unions operate, specifically, outside the legal parameters of the law and common decency.

Mr. Bayer goes on to say “…Some local unions require a member to be in good standing for a year before becoming a candidate for office.” I guess this means going along with the agenda of Mr. Fanti, who uses his members as pawns in a chess game. Bargaining unit members, be real clear of his intentions. If Mr. Fanti cared about “all” the counselors at Sheridan he would believe in cultural diversity. The only culture he is interested in is “his” own culture and their needs.

Mr. Bayer also states “…I’m not familiar with the Addiction Study Program Committee on which you sit, but in AFSCME members attain office by gaining the confidence of their co-workers and getting a majority of the vote.” What kind of craziness is this? What Mr. Bayer really means if you have a one-way thought process you can be part of their team. This one-way thinking promotes my original discussion on why this collective bargaining unit at Sheridan does not want any “real” black men or women sitting on its board. This bargaining unit does not want real discussion of the issues. The Boards I sit on are clear of my intentions. My intentions promote fairness and consistency, not an alignment to the values and concerns of a particular agenda.

This bargaining unit believes they can make demands upon an employer to “take care” of them because they are employed by them. This is ludicrous. A person gets what they work for, no more, no less. A certain amount of a discipline’s academic and experience gains power in negotiating for or having more or requesting more from an employer. You have to have something tangible to bargain with in these negotiations.

The people who sit on this collective bargaining unit Board have no idea what people of color need or want. These people have no idea what the needs are of social services. They come from their kitchens, Walmart, K-Mart or other disciplines or through nepotism demanding things because they have seniority “counseling” at Sheridan. Just because one has worked at Sheridan for 2 or 3 years as a “counselor” does not mean they know how to apply the techniques and theories of the counseling discipline. One may not learn from their peers who do not know social services, but rather from those who have the real experiences of social services and clinical knowledge of the subject matter. One certainly will not learn or know anything if they have certification credentials which come from falisified clinical supervisions.

A company is looking for “good service” meaning accountability. A person should not be paid and receive benefits just because they come to work. If one is not doing their work appropriately, the company should be able to take the appropriate steps to assure that services are being rendered appropriately and effectively.

Mr. Fanti and Mr. Bayer do not want to address this issue. They do not want a person like myself who would make them look at themselves before they construct a package to present to an employer. You cannot or should not tell a client to look at themselves if you are not willing to look at yourself. What Mr. Fanti and Mr. Bayer need to do is read “Union Corruption and the Law” by Phillip B. Wilson.

This is also posted on my other website at: http://click.townhall.com/

Update: December 22, 2006

To the anonymous e-mail person who believes I am a racist: I address racism. The remark I made about Dr. King and the possibility of being set up by AFSCME is only a trigger to get you focused on the real issue. The real issue is nobody cares about Mr. Bayer being offended. I am offended when decisions that affect my life have racial overtones. Why is it that when one addresses a racial remark, another believes the addresser is a racist? I am no more of a racist than you are. If you are not a racist then I am surely not one. On another note: as to this e-mail person, I am clear of where I work and who surrounds me. Please, do not get it twisted. I believe your little world has you twisted. Recidivism and reducing crime has nothing to do with the issues I am addressing. I am not going to waste anymore time on such a loose statement. Those who want others to think racism does not exist, are those who perpetrate it. Racism is alive and well. I will continue to address nefarious acts which have racial overtones attached to it. Wake up and smell the coffee. Racism has not died. It is still alive, trying to hide its ugly face. If we do not expose it, it will continue to flourish and continue to infect our country.

Update: December 22, 2006

I received a response letter from Mr. Bayer. In his letter he states “…I take offense at the implication that you are being mistreated because of your race…When the late Dr. Martin Luther King was slain in Memphis, he was there in support of an AFSCME strike.” Maybe AFSCME set Dr. King up to be slain. Maybe Dr. King should not have been there. Nevertheless, why is it when a black person tells a white person he is being mistreated because of his race the white person always tells a story of how my best friend is a black man. Mr. Bayer needs to read some of Dr. King’s writings.

Nevertheless, it all comes out in the rinse. I am taking my issues against AFSCME to Federal Court. Mr. Bayer has no clue to what I have been through with his union. Mr. Bayer is just protecting his own. See you in court Mr. Bayer.

Update: December 21, 2006

On or about December 18, 2006 I returned a call and talked to Attorney Charles E. Tucker of the United States Government, National Labor Relations Board about filing a charge against AFSCME in this matter. On December 21, 2006 I received the charge in the mail. The charge, as Attorney Tucker interprets my writing, does not address the issues. When I talked to Attorney Tucker I informed him I probably would not file a charge with his office because I will get better results this time by filing a civil complaint in the United States District Court for the Northern District of Illinois, Eastern Division. This process will work better in addressing the issues. The discovery process will be mandatory.

For example, I can use the Landrum-Griffin Act, which is organized into five titles, that is, Title I contains the Bill of Rights for members of labor organizations; Title II requires reporting by labor organizations, officers and employees of labor organizations and employers; Title III regulates the use of trusteeships and limits the purposes for which a trusteeship may be imposed by a labor organization; Title IV regulates union elections, requiring they be held not less than every five years at the National level; and Title V outlines the fiduciary responsibilities. There are at least four disadvantages to filing an NLRB claim. First, NLRB powers are remedial. Second, the Board’s role is to ensure that national labor policy is met, whether or not the union member enjoys an optimal outcome. Third, the findings of the NLRB could be binding in other litigation, and for this reason the plaintiff may want to choose to litigate in a different forum with more formalized discovery; and Fourth and finally, the NLRB is made up of political appointees whose rulings often change with presidential administrations.

Update: December 20, 2006

An AFSCME union representative commented on this writing. It appears the representative’s thinking processes are very limited. This union breeds this type of animal. I would say this person probably has a 3rd grade reading and writing level. This person needs some counseling and education. Can an AFSCME representative provide an intelligent comment or answer to this apparent indifferent treatment? The person who makes this comment is probably a racist and cannot face the facts. Lets have an intelligent conversation, if you are capable of having one.

Update: December 16, 2006

I faxed a copy of this letter to the United States Government, National Labor Relations Board’s Mr. Will Vance, Officer-in-charge. I requested a complaint form for filing a charge in this matter.
December 15, 2006

Mr. Henry Bayer, Executive Director
AFSCME Council 31, AFL-CIO
29 N. Wacker Drive, Suite 800
Chicago, Illinois 60606

Re: Local 472 – Board Membership and Equal Representation at Sheridan Correctional Center

Mr. Bayer:

I, Fred L Nance Jr., am requesting action and information about AFCME Board Membership with Local 472, which is representing the employees (counselors) at Sheridan Correctional Center (Sheridan). AFSCME’s Local 472 is the bargaining unit for employees (counselors) of the new vendor at Sheridan. There are no African Americans, males or females, presently sitting on the Board bargaining for a contract with the new vendor, supposedly representing all the employees of the new vendor. I am an African American. Every present sitting Board member is white, yet they are supposed to represent African Americans. This has the appearance of unfair representation, with racial overtones.

I requested Board membership and was told I have to hold a membership card. Why do I have to have a membership card? Local 472 is in the process of bargaining for a contract with the new vendor, representing me as a member of their Local and I do not have a membership card? I do not have to have a membership card for Local 472 to represent me. Local 472 is the bargaining unit for all the Sheridan employees (counselors) of the new vendor, with or without membership cards, white and black.

There are no African American Board members. How can the African Americans who work for the new vendor be properly represented when they have no representation at the table? Why am I being denied the opportunity to be a Board member? Is it because I am black?

I have been told that I have no right to a vote since I do not hold a membership card, yet AFSCME represents me at the bargaining table. This not having a right to vote sounds familiar.

I have been told I have no right to be at a meeting held by AFSCME discussing the bargaining issues that are going to be presented, in my behalf, to the new vendor because I do not have a membership card.

I sent an e-mail to Mr. Rob Fanti requesting a copy of the proposed contract. Mr. Fanti has not contacted me, even though he has seen me numerous times at work. I guess I am not entitled to a copy of the proposed contract, even though each present sitting Board member, who is white, has been privy to this proposed contract.
If AFSCME can bargain for me at the table with the new vendor when I do not have a membership card, then I should have all the rights of similarly situated others who do have membership cards who are being represented. The proposal AFSCME is about to present or has presented to the new vendor does not have proper representation of all the employees of the new vendor.

I have heard that AFSCME is getting ready to bargain with the new vendor. AFSCME has withheld information about the bargaining practice from its non-cardholding members whom they purport to bargain in their behalf.

Also, when does voting take place for the Board members? Are the non-cardholding members exempt from the voting process? The last vote for Board members took place in November of 2005.

Therefore, I respectfully request consideration for Board membership with Local 472 as they represent the employees (counselors) at Sheridan. I respectfully request, from AFSCME, equal and fair representation at the bargaining table as a Board member, that is, there should be African Americans sitting on this Board discussing the issues that will impact the employment of African Americans since they are being represented by AFSCME.

I am familiar with Board membership. I presently sit on Kennedy-King College’s Addictions Study Program as a Board member. I have been a Board member with Kennedy-King for 7 years. I am a Board member of the International Institute of Black Addictions Professionals (IIBAP). I sit on IIBAP’s research committee. There is no one sitting on this Board holding academic standing and credentials such as what I have to offer. There should be no reason why I cannot sit on this bargaining unit Board to discuss and articulate the issues of employment. I have extensive knowledge of employment law. I have extensive knowledge of human/social services.

Respectfully submitted,

Fred L Nance Jr., ABD, MA, CADC, NCRS

cc: Mr. Henry Bayer, Executive Director (U.S. mail and fax delivery)
W. James Young, Attorney National Right to Work Legal Defense Foundation
Catherine L. Struzynski, Esq., AFSCME Council 31 (fax delivery only)
Rainbow/Push Coalition
http://click.townhall.com/
http://clickforjusticeandequality.blogspot.com/

Illinois Department of Corrections decides similarly situated employees are not allowed to cross picket lines of AFSCME the union

Update: August 12, 2006

On August 11, 2006 I filed another charge/complaint with the National Labor Relations Board (NLRB) against the Illinois Department of Corrections (IDOC) and AFSCME for compulsory unionism and discrimination requesting a full, complete and thorough investigation. In addition, I am requesting the NLRB acquire a court ordered injunction against IDOC that would allow all “similarly situated” Gateway employees, who want to cross the picket lines, entry into Sheridan Correctional Center to work. IDOC has allowed Gateway employees who were on the picket lines, access to cross the picket lines to work. IDOC has denied other Gateway employees, who did not participate in the strike, access to cross the picket lines.

IDOC reported the following to the Illinois Department of Employment Security (IDES), “IDOC states it refuses to allow entry to SCC to the NON-PARTICIPATING WORKERS because various AFSCME bargaining units are the recognized collective bargaining representatives of correctional officers (i.e., security staff) and other IDOC employees at SCC, and therefore the safety and security at SCC could be disrupted if it allowed the NON-PARTICIPATING WORKERS into SCC in order to work before the differences between the UNION and the COMPANY is resolved.”

In employment law, this is discrimination and compulsory unionism to give one group of individuals a liberty to enjoy that another group of “similarly situated” individuals cannot enjoy because they did not participate in a strike. The safety and security at Sheridan could be disrupted because IDOC allowed individuals to cross the picket who were strikers. IDOC has presented a straw man to IDES.

Update: August 11, 2006

On August 11, 2006 Ms. Howard informed Ms. Lisa Carrico, Gateway non-striking employee, that her appeal would sit in her office until the 30-day period elapsed waiting for the other concerned parties to file their appeals. IDES appeal rights, as stated in our decision, report “Any party who disagrees with this determination may file an appeal in person, by mail or by telefax within 30 days from the date of this determination.” It does not say an appeal will sit on someones desk waiting for others to file an appeal. I filed my appeal by fax on August 10, 2006. Ms. Howard confirmed receipt of my appeal. Lisa filed her appeal by fax on August 11, 2006.

I called Ms. Howard getting voice mail, leaving a message about this issue. Ms. Howard called me back reporting IDES usually holds all appeals until the 30 days elapse waiting for the other concerned parties, which are the other “9 probationary” employees of Gateway to submit their appeals, then they are sent for administrative hearings as a group. I informed Ms. Howard I am not part of a group, and that, my appeal should be sent for administrative hearing upon receipt of the appeal. I informed Ms. Howard I am familiar with IDES’s Administrative Review Board (ARB) hearings. I asked Ms. Howard to review the IDES policy on appeals given to the administrative review board.

IDES calls Gateway employees on the picket lines “Workers” and those who are not on the picket lines “Non-Participating Workers.” I asked Ms. Howard why she called us “probationary employees” when this phrase is not part of IDES’s decision. Ms. Howard informed me Mr. Joe Bella, AFL-CIO Regional Director, gave her the names of the probationary employees of Gateway that were striking and those names of probationary employees of Gateway who were not striking. We ended the call.

Ms. Howard called me back reporting she spoke to her supervisor, who stated they were going to treat our appeals different, sending it to the ARB. Ms. Howard informed me she did not know how long it would take the ARB to respond. I informed Ms. Howard I am familiar with the ARB response time. We ended the call.

I was concerned about where IDES was getting their information, which led to their decision against giving Kathy Wicevic, Lisa Carrico and I our unemployment benefits. On August 11, 2006 I called and sent a fax to Ms. Judith Boone, Investigator for the National Labor Relations Board (NLRB). I filed a complaint against AFSCME, IDOC, CMS and IDES reporting “compulsory unionism.” Ms. Boone is handling the investigation regarding our being locked out of Sheridan Correctional Center. The fax included the cover sheet, IDES’s decision and my appeal to that decision.

I had to leave a voice message for Ms. Boone. I reported on the voice mail and on the cover sheet of the fax my concerns regarding IDES’s investigation into whether we were going to get unemployment benefits pursuant to the Illinois Unemployment Insurance Act, Section 601 and 604. I have reported to Ms. Boone my allegations that AFSCME (the Union), the Illinois Department of Corrections, Illinois’ Central Management Services, and the Illinois Department of Employment Security are involved in “compulsory unionism” against Gateway and Gateway employees who want to cross the picket lines and work as “similarly situated” Gateway employees (strikers and other Gateway employees who have crossed the lines and went to work) are allowed to cross the picket lines and work.

The language on the fax cover sheet to Ms. Boone is as follows: Ms. Boone, I have a concern. I talked with Ms. Cheryl Howard, Manager IDES Labor Dispute Unit, this morning. She used the words “probationary employees” when we were talking about when she would send my appeal for administrative hearing. I asked her why she used these words to describe us, when these words are not in the language of this decision. Ms. Howard informed me Mr. Joe Bella, AFL-CIO Regional Director, gave her this information. My concern is, this information should have come from Gateway not the Union. Would you please investigate this issue? I believe the IDES decision here is based on Union and IDOC information. Very little information came from Gateway. Is there a possibility you can get a court injunction to get us back to work since other Gateway employees have crossed the picket lines and are able to work? Lisa Carrico, Kathy Wicevic and I are “simarily situated” employees of Gateway.

I am awaiting a call from Ms. Boone.

Update: August 10, 2006

STATE OF ILLINOIS
DEPARTMENT OF EMPLOYMENT SECURITY
LABOR DISPUTE DETERMINATION
U.I. PROGRAM SUPPORT DIVISION, LABOR DISPUTE SECTION
33 SOUTH STATE STREET, 9TH FLOOR
CHICAGO, ILLINOIS 60603

APPEAL OF DETERMINATION

I, Fred Nance Jr. (Nance), am an employee of Gateway Foundation (Gateway) working as a Counselor III at Sheridan Correctional Center (Sheridan), a subsidiary of the Illinois Department of Corrections (IDOC). On June 6, 2006 AFSCME (The Union) caused a strike at Sheridan. The Illinois Department of Corrections (IDOC) locked out some Gateway employees, which I am locked out from my employment at Sheridan. Subsequently, I filed for unemployment benefits under the Illinois Unemployment Insurance Act (The Act), Sections 601 and 604. I will address the following to support my eligibility for unemployment benefits.

The Illinois Department of Employment Security (IDES) has decided I am ineligible for unemployment benefits due to a stoppage of work pursuant to Section 604 of The Act. The Act reports, in part, “An individual shall be ineligible for benefits for any week with respect to which it is found that his total or partial unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment, or other premises at which he is or was last employed…For the purpose of disqualification under this Section the term “labor dispute” does not include a lockout by an employer, and no individual shall be denied benefits by reason of a lockout….” I am appealing the decision and/or determination of IDES issued on August 4, 2006.

FINDINGS OF FACT by IDES

1. The COMPANY (Gateway) is engaged in providing substance abuse counseling and treatment services. The COMPANY has a contract with the Illinois Department of Corrections (“IDOC”) to provide substance abuse counseling and treatment services to the inmates of the Sheridan Correctional Center (“SCC”), a facility controlled and operated by IDOC for incarcerating convicted felons.

2. The Union is the recognized collective bargaining representative of counselors employed by the COMPANY to provide substance abuse counseling and treatment services at SCC (“WORKERS”).

3. On June 6, 2006, when negotiations between the COMPANY and the UNION regarding the initial collective bargaining agreement between them ended in an impasse, the WORKERS ceased work and established picket lines at SCC.

4. Some of the workers attempted to cross the picket lines and enter SCC in order to work (“NON-PARTICIPATING WORKERS”), but were refused entry by IDOC. IDOC continues to refuse to let the NON-PARTICIPATING WORKERS into SCC. Some of the NON-PARTICIPATING WORKERS are not members of and do not support the UNION.

5. The COMPANY wants the NON-PARTICIPATING WORKERS to enter SCC and work, but can do nothing about the situation since IDOC has sole and complete authority over who is or is not allowed to enter SCC.

6. IDOC states it refuses to allow entry to SCC to the NON-PARTICIPATING WORKERS because various AFSCME bargaining units are the recognized collective bargaining representatives of correctional officers (i.e., security staff) and other IDOC employees at SCC, and therefore the safety and security at SCC could be disrupted if it allowed the NON-PARTICIPATING WORKERS into SCC in order to work before the differences between the UNION and the COMPANY is resolved.

NANCE’S ARGUMENT

IDES does not address the eligibility requirement of Section 601, therefore, Section 601 is satisfied for Nance. Also, number 2 of IDES’s “Findings of Fact” reports “The Union is the recognized collective bargaining representative of counselors employed by Gateway.” In a newspaper article, The Times, Ottawa, dated July 12, 2006, it reports “ Derek Schnapp, a spokesman for the Illinois Department of Corrections, said he could not discuss the case in detail, as it involves personnel. “All we can say is their case is under review, but they have not yet been cleared to enter the facility,” he said. And AFSCME spokesman Anders Lindall said his union would likely do nothing to help the workers, though Council 31 represents them as the official bargaining unit.” How can AFSCME be my bargaining unit, when their spokesman Anders Lindall reports they will not support or help the “Non-Participating Workers” of Gateway?

The next most compelling issue here in determining eligibility for Nance is Section 604’s “stoppage of work.” IDES reports “There was a stoppage of work because of a labor dispute between the Company (Gateway) and the Workers…”, supporting this statement suggesting the operations of Gateway are not substantially normal since it has not provided any substance abuse counseling and treatment services at Sheridan since The Union ceased work and established picket lines. First, this is not found in IDES’s “Findings of Fact.” Second, this statement supporting IDES’s determination is troubling. The legislature did not include substantially normal in the language of Section 604 to define or described stoppage of work. Also, Gateway has continued providing substance abuse and treatment services pursuant to their contractual agreement with the State of Illinois/IDOC.

In addition, IDES reports “Section 604 of the Illinois Unemployment Insurance Act provides that an individual shall be ineligible for benefits for any week with respect to which it is found that his total or partial unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment or other premises at which he is or was last employed. Case law establishes that for purposes of Section 604, a stoppage of work exists when an employer’s operations are not substantially normal.” Where is the case law cite? This is an arbitrary and biased statement if there is no case law leading to or from the quote of IDES. Additionally, if in the future IDES does provide case law to support this “substantially normal” statement, I should be afforded the right to challenge the “case law” with further research of that case law.

When speaking of their position in this matter, IDES reports on page 4 of their determination “The most straightforward answer requires a reading of Section 604 using the plain and ordinary meaning of the language it contains…Although there do not appear to be any controlling Illinois appellate court or Supreme Court cases….” This is contradictory to their statement of established case law for the language “substantially normal.”

The principles of statutory construction are well established, as the Illinois Supreme Court observed in Bridgestone/Firestone, Inc. v. Aldridge, 179 Ill. 2d 141 (1997): ” ‘It is a primary rule in the interpretation and construction of statutes that the intention of the legislature should be ascertained and given effect. This is to be done primarily from a consideration of the legislative language itself, which affords the best means of its exposition, and if the legislative intent can be ascertained there from it must prevail and will be given effect without resorting to other aids for construction. There is no rule of construction which authorizes a court to declare that the legislature did not mean what the plain language of the statute imports.’ ” Bridgestone/Firestone, 179 Ill. 2d at 149, quoting Illinois Power Co. v. Mahin, 72 Ill. 2d 189, 194 (1978).

IDES does not define “substantially” normal, neither does Section 604. As a matter of “fact” The Act, specifically, Section 604 does use the words “substantially normal.” These words appear to be “created” by IDES. Nevertheless, substantially can be defined as consisting of or relating to substance, not imaginary or illusory, real, true, important, essential; ample to satisfy and nourish, full (a substantial meal); possessed of means (well-to-do), considerable in quantity, significantly great (as a substantial wage), firmly constructed, sturdy (a substantial house), and being largely but not wholly that which is specified (a substantial lie). This is a definition from Merriam-Webster Online, a reference used by IDES to define “due to.” Generally, an issue of this nature is defined by case law or legal reference, which, apparently, IDES does not have to support their claim of denial for a “stoppage of work.”

Gateway has been providing substance abuse counseling and treatment services before and after the strike. For the present argument, pursuant to IDES’s “Findings of Fact” Gateway has a contract with IDOC to provide substance abuse counseling and treatment services. Of course, there are more elements to Gateway’s contractual agreement with IDOC. Illinois Governor Blagojevich spokeswoman Rebecca Rausch reported to the media on Friday, August 4, 2006, that the labor dispute is between Gateway and its employees, so the governor would only step in if the organization’s counseling services slipped at Sheridan. Ms. Rausch was quoted as saying “We are monitoring this situation very closely to make sure this vendor is meeting its contractual obligations,” Rausch said. If there was a “stoppage of work” the Governor’s office would have proclaimed it.

On July 26, 2006 the Chicago Tribune headlines “Strike not affecting prison, state says” report, “New inmates are coming in as normal,” said Derek Schnapp, a spokesman for the Illinois Department of Corrections. “It’s been the same business as usual.” In another article by the Chicago Tribune on July 26, 2006 headlined as “Prison Enduring 7th week of strike” it reports, “The Sheridan Correctional Center, one of the nation’s largest drug-treatment prisons, continues to function effectively despite the absence of about 40 striking drug counselors, state officials said Tuesday as the strike entered its seventh week.” Mr. Schnapp made the same statement written above for this article also.

In addition, the article “Prison enduring 7th week of strike” reports “Gateway President Michael Darcy said his company is caring for the prison’s roughly 850 inmates using 22 drug treatment specialist who were previously in supervisory positions and 14 counselors who have crossed the picket line. The people that have crossed the line and our clinical supervisors are able to produce at a higher productivity level than all the striking counselors put together,” Darcy said.”

In the Associated Press release of July 25, 2006 “Prison workers urged to reject union bid” it reports, “Lindall said drug programs for inmates have slipped during the walkout. But prison spokesman Derek Schnapp said Gateway is fulfilling its contract and the state is pleased with services that have been provided since the strike began.”

In addition, the State of Illinois conducted an audit to assure Gateway was in compliance with their contractual agreements. The Governor’s office continuously reports to the media Gateway is living up to its contractual agreements. Therefore, Gateway is “substantially” normal providing substance abuse counseling and treatment services at Sheridan defeating IDES’s claim of “stoppage of work.”

IDES’s heading Determination, states in part, “On the basis of information received, the claims adjudicator determines that the Workers (Gateway employees) in employment with the Company (Gateway) up to June 6, 2006, including the Non-Participating Workers, are ineligible for Unemployment Insurance Benefits under the terms and provisions of Section 604 of the Illinois Unemployment Insurance Act…for as long as their unemployment remains due to a stoppage of work caused by a labor dispute….” There is no stoppage of work by Gateway at Sheridan.

In addition, On August 9, 2006 Gateway called me reporting another counselor has crossed the picket lines and come to work. They report two other counselors have contacted them reporting they will cross the picket lines and come to work later this week or early next week.

If IDOC is allowing striking counselors (“Workers”) to cross the picket lines and go to work the striking “Workers” become “Non-Participating Workers, then the other “Non-Participating Workers” should be allowed to cross the picket lines and come to work. IDES discusses and defines “Workers” and “Non-Participating Workers” in their determination.

IDES’s definition of a “Workers”, in this matter, is one who works for Gateway at Sheridan; who organized and set up picket lines; and is participating in the strike. IDES’s definition of “Non-Participating Workers” is one who works for Gateway and is not participating in the strike.

When the counselors mentioned here for August 9, 2006 cross the picket lines and go to work, they went from “Workers” to “Non-Participating Workers”. IDOC is discriminating against Kathy, Lisa, and I. We should be allowed to cross the picket lines and go to work.

To repeat the IDES statement offered by IDOC: “IDOC states it refused to allow entry to Sheridan to the Non-Participating Workers because The Union has various bargaining units that are recognized collective bargaining representatives of correctional officers, i.e., security staff and other IDOC employees at Sheridan, and therefore the safety and security at Sheridan could be disrupted if it allowed the Non-Participating Workers into Sheridan in order to work before the differences between The Union and Gateway is resolved.” With the information provided here, I think this just went out the window. IDOC is discriminating against the “original” “Non-Participating Workers” of Gateway.

Next IDES reports “Section 604 provides an exception to the ineligibility for benefits it imposes. Individuals are not ineligible for benefits under Section 604 if they: A) are not participating in, or financing, or directly interested in the labor dispute which caused the stoppage of work; and B) do not belong to the same grade or class of workers of which immediately before the commencement of the stoppage of work there were workers employed at the premises at which the stoppage of work occurs, any of whom are participating in, or financing, or directly interested in the labor dispute.

IDES conveniently leaves out the rest of B, which states, “provided, that a lockout by the employer or an individual’s failure to cross a picket line at such factory, establishment, or other premises shall not, in itself, be deemed to be participation by him in the labor dispute.”

IDES also takes this exception of Section of 604 and reverses it reporting it as positive requirements stating “The Non-Participating Workers are ineligible for benefits under either A or B even if they did not participate in the labor dispute or finance the labor dispute through union dues or other means. First, they clearly have a direct interest in the labor dispute since the terms and conditions of their jobs will be determined by whatever terms and conditions of the Company and Union ultimately agree to.” This is ludicrous.

IDES is putting the cart before the horse. The Non-Participating Workers have no direct interest at the time of filing for unemployment benefits or this appeal determination. IDES cannot predict the future. With this statement, IDES is involved with AFSCME in compulsory unionism.

In addition, IDES states, “Second, they just as clearly belong to a class of workers which immediately before the work stoppage contained members employed at Sheridan….” This is not true in my case. There is no counselor III striking. I am a counselor III. There are numerous civil rights cases, which define and clarify a class of workers. To satisfy the “similarly situated” prong of the prima facie case, an employee must be “directly comparable in all material respects.” Sartor v. Spherion Corp., 388 F.3d 275, 279 (7th Cir. 2004) Being a counselor III is certainly a material aspect of Section 604.

IDES attempts to survive their determination stating the Non-Participating Workers of Gateway are not locked out of Sheridan by their employer because IDOC is not their employer. IDES states in their “Findings of Fact” paragraph 1 “The COMPANY has a contract with the Illinois Department of Corrections (“IDOC”)….” IDOC is there employer!!!

IDES does not discuss the employment relationship as it applies to de facto and/or indirect employer. Gateway is contracted to provide services at Sheridan. This is a given. This contract is provided by IDOC, pursuant to IDES’s statement in their “Findings of Fact.”

Fundamentally in nature, the employer has locked us out of Sheridan. IDOC is not a “third-party” as IDES describes in their determination letter. IDES contradicts itself continuously. IDOC is the “de facto and/or indirect” employer, evidently, with the right to lockout who they please as stated by IDES in their “Findings of Fact” reports “…a facility controlled and operated by IDOC….” IDES presents no precedent law neither cites any legal language to support their position. IDES is clearly misinterpreting their policies promoting the agenda of AFSCME.

Nevertheless, IDES reports IDOC states it refused to allow entry to Sheridan to the Non-Participating Workers because The Union has various bargaining units that are recognized collective bargaining representatives of correctional officers, i.e., security staff and other IDOC employees at Sheridan, and therefore the safety and security at Sheridan could be disrupted if it allowed the Non-Participating Workers into Sheridan in order to work before the differences between The Union and Gateway is resolved.

In General Motors Corp. v. Bowling, 85 Ill. 2d 539, 542 (1981) this court rejected a claim that the members of a union representing the shop clerks at General Motors’ plants in Chicago and LaGrange, Illinois, had a direct interest in a labor dispute between General Motors and the members…representing the production workers at the plants. The court recognized that certain parts of the production workers’ agreement with General Motors would customarily be copied into the shop clerks’ own agreement. The shop clerks, therefore, might anticipate that the strike by the production workers would influence their terms of employment. That, however, was at most an indirect interest. The court explained: “All they had was a hope, not any assurance. A mere expectancy without any legal right, subject to GM’s views on the fairness and convenience of adopting parts of another agreement, does not disqualify the shop clerks for unemployment benefits.” General Motors Corp., 85 Ill. 2d at 543. This is similar to IDOC’s claim of having a right to lockout Gateway employees because of the expectancy of other union members.

The Illinois Supreme Court in International Union of Operating Engineers, Local 148, AFL-CIO v. Illinios Department of Employment Security et al. (2004) discussed direct interest in a labor dispute under Section 604.

Citing section 604 of the Unemployment Insurance Act (820 ILCS 405/604 (West 1994)), the Department and CIPS maintain that the members of Engineers’ Union were not eligible for unemployment compensation benefits because their unemployment was due to a stoppage of work resulting from a labor dispute. Conversely, Engineers’ Union maintains that the relieving proviso of section 604 applies, and the members of Engineers’ Union were eligible for unemployment compensation benefits.

This Supreme Court stated “Section 604 of the Act provides: “Labor dispute. An individual shall be ineligible for benefits for any week with respect to which it is found that his total or partial unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment, or other premises at which he is or was last employed. This Section shall not apply if it is shown that (A) the individual is not participating in or financing or directly interested in the labor dispute which caused the stoppage of work and (B) he does not belong to a grade or class of workers of which immediately before the commencement of the stoppage there were members employed at the premises at which the stoppage occurs, any of whom are participating in or financing or directly interested in the dispute; provided, that a lockout by the employer or an individual’s failure to cross a picket line at such factory, establishment, or other premises shall not, in itself, be deemed to be participation by him in the labor dispute.” 820 ILCS 405/604 (West 1994).”

This Supreme Court states, “Where the union has a mere expectancy in the outcome of another union’s dispute, such as where the employer historically patterns its collective bargaining agreements with each of its unions after each other, our courts have not found a direct interest.” The court explained: “All they had was a hope, not any assurance. A mere expectancy without any legal right, subject to GM’s views on the fairness and convenience of adopting parts of another agreement, does not disqualify the shop clerks for unemployment benefits.” General Motors Corp., 85 Ill. 2d at 543.

To be eligible for unemployment insurance benefits under the relieving proviso of section 604, an employee must prove both that he is not directly interested in the labor dispute and that he is not of the same grade or class as employees who are participating in, financing or who hold a direct interest in the labor dispute.

IDES results in looking to the dictionary for definitions to legislative language. Definitions for legislative language are found in the legislature. When discussing stoppage of work with Ms. Cheryl Howard, she reports that supervisors and managers are replacing Non-Participating Workers doing their work, therefore, constituting a stoppage of work. I disagree.

I am a counselor III with Gateway. The Gateway Job Description for Counselor III reports, in part, “completes comprehensive assessments and treatment planning for caseload, and provides counseling services to clients. Develops and implements complex treatment and discharge plans for clients with dual diagnoses, social or mental health issues. Serves as professional resource to other Counselors in resolving complex case problems, and provides clinical supervision and guidance as needed. Develops and conducts in-service and continuing education programs for treatment staff; assumes responsibility for overseeing Counselors in absence of supervisor, and may assume responsibility for supervision of Counselors in absence of supervisor.”

Section 604 of the Act operates to disqualify an employee from receiving unemployment benefits when the employee is voluntarily unemployed because of a labor dispute at the place where he or she was last employed. Section 604 ” ‘evinces the legislative determination that the State is to remain neutral in labor disputes and collective bargaining, rendering assistance to neither the employer nor labor.’ ” Bridgestone/Firestone, 179 Ill. 2d at 156, quoting Local 7-641 v. Department of Labor, 96 Ill. 2d 94, 98 (1983). The plain language of section 604 requires an individuals’ unemployment be “due to a stoppage of work which exists because of a labor dispute.” (Emphasis added.) 820 ILCS 405/604 (West 1992). Again, there is no stoppage of work.

Section 604, commonly referred to as the “labor dispute disqualification” section, provides in pertinent part: “Labor Dispute. An individual shall be ineligible for benefits for any week with respect to which it is found that his total or partial unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment, or other premises at which he is or was last employed.” 820 ILCS 405/604 (West 1992).

The primary purpose of the Unemployment Act is to lessen the burden of unemployment upon unemployed workers. Wadlington v. Mindes, 45 Ill. 2d 447, 452 (1970), quoting Illinois Bell Telephone Co. v. Board of Review of the Department of Labor, 413 Ill. 37, 43 (1952) (“The primary purpose of the Illinois Unemployment Insurance Act is to relieve ‘economic distress caused by involuntary unemployment’ “).

IDES ends their report stating “Therefore, is their unemployment due to the work stoppage caused by the labor dispute at SCC (Sheridan)? If yes, they are disqualified from benefits under Section 604; if no, they are not disqualified.” IDES continues wondering if the stoppage of work is due to the labor dispute. As discussed earlier in this writing, there is no stoppage of work by Gateway at Sheridan, and therefore, the answer to IDES’s question is no and I am not disqualified from receiving unemployment benefits.

Conclusion

IDES wants us to believe there are no controlling Illinois appellate or Supreme Court cases. In paragraph 5 of IDES’s “Finding of Fact” it reports “…since IDOC has sole and complete authority over who is or is not allowed to enter SCC”; In paragraph 6 of IDES’s “Finding of Fact” it reports “IDOC states it refuses to allow entry to SCC to the Non-Participating Workers…”; and on page 3 of IDES’s report it states “…Section 604 provides that the term “labor dispute” does not include a lockout by an employer, and that no individual shall be denied benefits under Section 604 by reason of a lockout. Therefore, if the Non-Participating Workers had been denied access to SCC by the Company rather than IDOC, there would be clear justification for not finding them ineligible for benefits under Section 604 because they had been “locked out” of SCC by their employer.”

IDOC and Gateway, both entities, usefully could be deemed employers in such a situation as presented here. Gateway has contractual obligations with IDOC as stated in IDES’s “Findings of Fact”, where those contractual obligations are satisfied with IDOC at Sheridan. Therefore, IDOC/Sheridan is the “de facto or indirect” employer in this instance because they are exercising sole and complete authority and control over Gateway employees.

IDOC is the “De facto or Indirect” EMPLOYER. In addition, IDOC has discriminated against the Non-Participating Workers. There is a ‘control test’ to determine whether an entity is an ‘employer’.” Russo v. Ryerson, No. 01-CV-4458 2006 U.S. Dist. LEXIS 10447, at (D.N.J. Feb. 27, 2006) (citing Graves, supra, 117 F.3d at 723.2) Other circuits have followed suit. Ass’n of Mexican-American Educators, supra, 231 F.3d at 582-83; Mangram v. General Motors, 108 F.3d 61, 62-63 (4th Cir. 1997); E.E.O.C. v. Illinois, 69 F.3d 167, 169 (7th Cir. 1995).

The control test as it relates to a “de facto” employer “is appropriately used where it is clear that a putative (assumed) defendant does not directly employ the plaintiff, but nevertheless controls the plaintiff’s employment to the point that it would contravene the intent of Title VII for the putative defendant to avoid liability for its own discriminatory actions.” Kerr v. WGN Cont’l Broad. Co., 229 F. Supp. 2d 880, 886 (N.D. Ill. 2002); see e.g., Conroy v. City of Phila., 421 F. Supp. 2d 879 (E.D. Pa. 2006) (explaining how “City’s ability to place its own requirements upon the hiring process,” as well as “its control policy is to look to Title VII for guidance when interpreting provisions…and to federal precedent governing Title VII “‘as a key source of interpretative authority.’” Pukowsky, supra, 312 N.J. Super. At 178 (quoting Lehmann, supra, 132 N.J. at 600-01).

Indirect liability results when the defendant employer “so far control[s] the plaintiff’s employment relationship that it [is] appropriate to regard the defendant as the de facto or indirect employer of the plaintiff . . . .” E.E.O.C., supra, 69 F.3d at 169. In other words, “[d]e facto or indirect employer liability depends on the amount of the control a putative Title VII defendant exerts over the plaintiff’s employment.” Kerr, supra, 229 F. Supp. 2d at 886. It “addresses the situation where a formal employment relationship may be absent, but the putative defendant is so extensively involved with the plaintiff’s day to day employment that the putative defendant is the ‘real’ employer for all intents and purposes, including Title VII liability.” Ibid.; see E.E.O.C., supra, 69 F.3d at 171 (explaining how entities that “pull the strings in the background”, and retain employment decision making power, are de facto employers pursuant to Title VII).

In Sibley Mem’l Hosp. v. Wilson, 488 F.2d 1338 (D.C. Cir. 1973) Control over access to the job market may reside, depending upon the circumstances of the case, in a labor organization, an employment agency, or an employer as defined in Title VII; and it would appear that Congress has determined to prohibit each of these from exerting any power it may have to foreclose, on invidious grounds, access by any individual to employment opportunities otherwise available to him. To permit a covered employer to exploit circumstances peculiarly affording it the capability of discriminatorily interfering with an individual’s employment opportunities with another employer, while it could not do so with respect to employment in its own service, would be to condone continued use of the very criteria for employment that Congress has prohibited. [Id. at 1341.]

I have proven I deserve unemployment benefits pursuant to Section 604.

Respectfully submitted,

Fred L Nance Jr., ABD, MA, CADC, NCRS

cc: Honorable Rod R. Blagojevich, Governor of Illinois
Ms. Judith Boone, Investigator National Labor Relations Board
Mr. W. James Young, Staff Attorney-National Right To Work Legal Defense Foundation, Inc.
Mr. Gregg Dockins, Director Gateway/Sheridan
http://clickforjusticeandequality.blogspot.com/
C.L.I.C.K. for Justice and Equality

18 Supporting documents attached

Update: August 8, 2006

AFSCME and IDOC are causing Blagojevich’s Sheridan Project to fail. Gateway has hired an administrative assistant at Sheridan Correctional Center. AFSCME and IDOC have locked out the administrative assistant. This is the comment of a Gateway employee:

An Administrative Assistant was interviewed and hired by Gateway to replace one who had left. She has cleard her IDOC background check, and cleared her urine drop. She is NOT being allowed to start her job. The Administrative Assistant postions are NOT part of the bargaining team. As a matter of fact, they were not even asked to join the union. So why is she being kept out of work too? This has gone on long enough. The union needs to give up and let all willing Gateway Employees do our jobs without their interferrence.

You heard it from an insider. Blagojevich, what are you going to do about AFSCME and your department heads at IDOC? Ms. Boone of the National Labor Relations Board (NLRB), what is the NLRB going to do about AFSCME and IDOC “compulsory unionism?”

I would like for this “insider” to give me more information about AFSCME and IDOC’s character and behavior attempting to compromise Blagojevich’s Sheridan Project with their “compulsory unionism.” I will post your comments. Please continue to alert the public and Governor Blagojevich.

I called Ms. Judith Boone of the NLRB today at 8:03 am at phone number 309-671-7086. I left a message on her answering machine quoting the 2nd paragraph above. I requested she call me to discuss this “compulsory unionism” with AFSCME and IDOC.

Update: August 7, 2006

This writing, along with the Illinois Department of Employment Security’s (IDES) Determination letter, was faxed to the offices of: Governor Rod R. Blagojevich, Ms. Brenda Russell, Director of IDES, Ms. Cheryl Howard, IDES Manager of the Labor Dispute Unit, and Ms. Judith Boone, National Labor Relations Board (NLRB) Investigator. Ms. Boone is investigating my charge of “compulsory unionism” against AFSCME and IDOC. My charge number with the NLRB is Case Number 33-CB-4170-1. I spoke to Ms. Boone requesting she add this writing and the IDES document to my charge of “compulsory unionism” against AFSCME and IDOC . I also requested Ms. Boone add discrimination to my charge. IDOC is allowing similarly situated individuals to enter Sheridan crossing the picket lines, but are denying me the same right to enter Sheridan to work and cross the picket lines. This tactic works in conjunction with AFSCME creating an unfair bargaining practice.

Update: August 6, 2006

Illinois Governor Blagojevich’s spokesperson has continually informed the media they are monitoring Gateway Foundation at Sheridan Correctional Center to assure they are keeping with the contractual agreement of providing counseling and other services to the inmates incarcerated at Sheridan. And therefore, have not addressed any issue of a contractual nature with Gateway because they are honoring their contractual agreement.

On the other hand, Governor Blagojevich’s spokesperson has not informed the media they are monitoring their Departments to assure there is no discrimination and conspiracy afoot to create an unfair bargaining practice between Gateway and AFSCME. Governor Blagojevich’s spokesperson cannot give a statement toward this issue because his administration is discriminating and assisting AFSCME in an unfair bargaining practice.

The State of Illinois, Department of Employment Security, Labor Dispute Section issued a determination on August 4, 2006. This report, in its “Findings of Fact” uses language, such as Gateway Foundation (Company), AFSCME (Union), Sheridan Correctional Center (SCC), Gateway employees (Workers) and Gateway employees who want to cross the picket lines (Non-Participating Workers).

Their reports states, “Some of the Non-Participating Workers are not members of and do not support the Union.” Governor Blagojevich’s Illinois Department of Corrections reports to the Illinois Department of Employment Security (IDES), in paragraph 6 of IDES’ “Finding of Fact” states, “IDOC states it refuses to allow entry to Sheridan Correctional Center (SCC) to the Non-Participating Workers because various AFSCME bargaining units are the recognized collective bargaining representatives of correctional officers (i.e. security staff) and other IDOC employees at SCC, and therefore the safety and security at SCC could be disrupted if it allowed the Non-Participating Workers into SCC in order to work before the differences between the Union and the Company (Gateway) is resolved.”

If this is true, then IDOC is guilty of discrimination because they have allowed similarly situated employees to cross the picket lines, entering work who are Non-Participating Employees of Gateway. According to IDES, “The Union is the recognized collective bargaining representative of counselors employed by the Company to provide substance abuse counseling and treatment services at SCC.” This statement on its face makes me a Union member. I became a “Non-Participating Worker” when I wanted to cross the picket lines.

If the current Union members of AFSCME at SCC, that is, Correctional Officers and other IDOC employees could disrupt the prison because non-union personnel are working there, why does Governor Blagojevich allow the union to exist or these employees access to work at SCC? Knowing that SCC is a “Union Shop”, why didn’t Governor Blagojevich make allowances or notations in the contractual agreement with Gateway suggesting they unionize before accepting the contract? It seems Governor Blagojevich’s team who constructed this contract dropped the ball or forgot the “Union Shop” would not allow non-union personnel to exist without causing trouble at SCC. It is clear, from IDOC, the non-participating workers are not the ones who would cause disruption of the safety and security at SCC.

Blagojevich spokeswoman Rebecca Rausch repeated Friday, August 4, 2006, that the dispute is between Gateway and its employees, so the governor would only step in if the organization’s counseling services slipped at Sheridan. “We are monitoring this situation very closely to make sure this vendor is meeting its contractual obligations,” Rausch said. Governor Blagojevich’s office should inform IDES there is no stoppage of work by Gateway at SCC. Governor Blagojevich’s office should inform IDES Gateway is fulfilling its contractual agreement of providing counseling and treatment to the inmates of SCC. Governor Blagojevich should intervene because his Department, IDOC, is liable at law for discrimination.

In addition, the Labor Dispute Unit’s Report basis its denial of unemployment benefits on “the work stoppage caused by the labor dispute at Sheridan.” The Labor Dispute Unit goes on to say, “The operations of the Company are not substantially normal since it has not provided any substance abuse counseling or treatment services at SCC since the Workers ceased work and established picket lines.” What does this mean?

First they say we are ineligible for unemployment benefits due to a “stoppage of work”, and then they report “…The operations of the Company are not substantially normal….” The Company has been providing counseling and treatment services every day since the strike began on June 6, 2006. Where is the Labor Dispute Unit getting its information?

The IDES report states “…the Non-Participating Workers are ineligible for unemployment insurance benefits…as long as their unemployment remains due to a stoppage of work caused by a labor dispute between the Company and the Workers at SCC.” There is no “work stoppage” at Sheridan caused by the labor dispute. Gateway’s work has not stopped at Sheridan. Governor Blagojevich’s spokesperson has repeatedly stated Gateway is living up to its contractual agreement. Contained in the contractual agreement is to provide counseling and other services. This has not stopped.

As the Labor Dispute Unit stated, “Section 604 of the Illinois Unemployment Insurance Act provides that an individual shall be ineligible for benefits for any week with respect to which it is found that his total or partial unemployment is due to a stoppage of work which exists because of a labor dispute….” Kathy Wicevic, Lisa Carrico and Fred Nance Jr. are eligible for unemployment benefits because there is no “stoppage of work” by the Company at SCC.

Illinois State Legislators, Illinois Courts, and Blagojevich’s “Rwanda”: A brief comparative analysis of complicity by silence in AFSCME’s takeover of the Sheridan Project

I, Fred L Nance Jr., extracted the 1st three paragraphs of the writing below to draw a brief analysis on the present situation with AFSCME, the union, at Sheridan Correctional Center (Sheridan), Vandalia Correctional Center, Dwight Correctional Center and the Illinois Department of Corrections. Various Departments of Illinois, under Governor Blagojevich’s regime, is participating in “compulsory unionism” tactics against Gateway Foundation (Gateway), which will destroy any chance of Governor Blagojevich’s “Sheridan Project” being a model prison for drug addicted inmates. This “project” at Sheridan is supposed to be a model the rest of our country can follow. Wrong.

AFSCME, with the assistance of the Illinois Department of Corrections (IDOC), Illinois’ Central Management Services (CMS) and the Illinois Department of Employment Security (IDES), has taken off the table fair bargaining practices with Gateway without a hint of intervention from the Governor, the State legislative body or the courts. This is their “complicity by silence.” AFSCME, with the assistance above, is practicing “revisionism” toward their mutual “final solution” of “compulsory unionism.”

Complicity by Silence: Genocide in Rwanda by Rakiya Omaar and Alex de Waal

On April 6, 1994, Hutu extremists unleashed a genocide in which perhaps 800,000 people were murdered in one hundred days. Before, during, and after the meticulously planned slaughter, actions by the U.S. government were a highly significant factor in the unfolding of events. And the effects of those actions were almost universally maligned.

The U.S. Ambassador to Rwanda, David Rawson, played a key role. In the absence of higher directives, the positions taken by this single man came to have a grossly disproportionate impact. The sympathy and support he showed for former President Juvenal Habyarimana and his coterie of extremists was no accident. They reflect the way a number of European organizations-primarily Belgian Catholic groups- played a similar game, with even more disastrous consequences. The genocidal maniacs who ruled Rwanda chose an opportune moment to launch their “final solution.”

In April, powerful individuals in the U.S. government were actively rewriting the rules of international politics. They implemented changes that went beyond merely revising the ground rules for peacekeeping so that the dispatch of United Nations troops to the world’s trouble spots would be almost impossible. They knowingly stood by while genocide occurred. By this inaction, they systematically began to unravel the great achievements of humanitarian law of this century–most of them gained in the period 1945 to 1951 by men and women driven by the visceral shock of Auschwitz and Dresden. The genocide in Rwanda-one of the greatest crimes against humanity in the second half of the twentieth century-was an ironically opportune moment for these revisionists to stake their claim.

AFSCME’s Takeover of IDOC

These authors left out the Germans, Italians, French and a host of others who laid claims of another’s playing field while Rwanda’s constituents suffered and died. The same is happening here in Illinois. AFSCME, the union, is similar to the Hutu (oppressor). The employees of Gateway Foundation working at Sheridan, Dwight and Vandalia are similar to the Tutsi (oppressed). Illinois has allowed AFSCME to control IDOC, CMS and IDES.

Our Illinois courts and legislators are rewriting (revisionist) the rules of fair bargaining practices. AFSCME, IDOC, CMS and IDES are working together to force Gateway to the bargaining table, undermining the present fair bargaining practice. This is called “compulsory unionism.”

Governor Blagojevich is standing in the wings as the U.S. did in Rwanda while the “unfair bargaining practices” are being written on the wall. The Biblical Daniel is not here to give his interpretation of the “handwriting on the wall” to Governor Blagojevich. AFSCME, IDOC, CMS and IDES’s genocide is in process. There will be no winners, just victims as illustrated in Rwanda.

The Illinois taxpayers will become victims in this disaster created by AFCSME. Governor Blagojevich’s “Sheridan Project” will not be a “model” for our country. What it will model is the assassination of a project because of “compulsory unionism”. The familiarity of this disaster will be ever present in Illinois history.

Kathy Wicevic, Lisa Carrico and I are Gateway employees who have resisted this tyranny. We are non-union employees of Gateway who wanted to cross the picket lines but were refused entry to our employment at Sheridan Correctional Center. We were involuntarily and forcibly removed from having access to our employment at Sheridan, which we had before the union struck on June 6, 2006. IDOC has stated “we are not cleared yet.” Why do we have to be cleared again? We did not violate any laws or policies. What we did was resist AFSCME’s “compulsory unionism.” We have retained counsel to battle this “compulsory unionism.”

We are represented by the National Right to Work Legal Defense Foundation, Inc. Illinoisans know who will pay for this litigation, the citizens of Illinois through their tax dollars. Of course, there are plenty of tax dollars available to assist AFSCME in their endeavors. There will be no winners, just victims.

Update: August 4, 2006

On August 4, 2006 Ms. Howard, Manager of the Labor Dispute Unit of the Illinois Department of Employment Security called me about 11:00 am reporting she had put the Unit’s decision/determination for unemployment benefits in the mail to all concerned parties. Ms. Howard reports I should receive the correspondence in a few days.

On August 3, 2006, my colleague and fellow non-striking employee of Gateway, who was also locked out from her employment at Sheridan Correctional Center by the Illinois Department of Corrections, Illinois’ Central Management Services and AFSCME because she refused to be a member of AFSCME and join the strikers on the picket lines, sent me an email reporting a conversation she had with Ms. Howard. As a courtesy to Ms. Howard, I decided not to post this comment on August 3, 2006. The comment is as follows:

I just talked to Ms Howard. She is waiting for the lawyers to approve the letter. I asked if the reason was because it needed to be changed. She said that and some things had to be added.

I asked her if she could email us the letter. She said no that everyone who is involved has to get them at the same time. I asked Everyone like who?? I thought it was you me and Kathy. She said no that. Everyone was the company IDOC, Union and people on picket line. She did state that the reason it is taking so long is NOT because of the other people out on strike.

I asked how we could be in the same decision with the others because it was not our decision to be locked out or off of work. She said that we are not grouped together but everyone was going to be mentioned in the letter. It sounded to me like we were going to be maybe set off in another parargrah or something. Anyway I said I know if we are denied we go though the appeal process but if we are approved how long does it take for us to get our money. She said if we are approved by 3 today than she can release it. It would go out in the mail tomorrow.

She also went on to tell me that these rules were made 50 years go to help people find work and they have not been changed and that people are now using the money towards bills etc. and that the rules that were made years ago have never been changed.

She also said that she told the attorneys that she was getting calls and that she would call us as soon as she had approval to send out the letters and that we were the only 3 calling and she would only call us.

She also stated she was thinking about staying a little later tonight at work if she had approval so she could get this out to us. She stated at the beginning of the conversation that the letters were being looked at by Attorneys and that she is hopeful that they were getting back with her but could not say when. I am a little confused about that but the way she said she could get the money out made me a little hopeful regarding she thinks we will be approved.

I hope I explained this ok if not give me a call my emotions are on a roller coaster today. haha I guess I just need to keep positive.

Lisa

My colleague mentions Ms. Howard stating “…these rules were made 50 years go to help people find work and they have not been changed and that people are now using the money towards bills etc.” What does this mean?

The Social Security Act is more than 50 years old. Jencks (1992) reports the two most significant components of the Social Security Act were Unemployment Insurance and Old Age and Survivors Insurance. Jencks believes these insurances’ was supposed to save from harm families against destitution when the breadwinner died or became too old to work.

If this is true, this has changed dramatically. A person may now receive Social Security Insurance (SSI) for a variety of reasons, for example, drug addiction and alcoholism, and mental health services, which the insurances were not designed to meet or accomplish.

Why was this statement made by Ms. Howard? If Ms. Howard involuntarily lost her job and applied for unemployment benefits, would she buy groceries, pay her rent/mortgage, pay her bills, etc. with the money she received from and through the Illinois Unemployment Insurance Act.

Update: August 3, 2006

I called and spoke to Ms. Howard this morning. Ms. Howard reports the correspondence/letter is ready but she is waiting to get permission to mail it. It is believed the attorneys for IDES working on this issue are still examining it. Ms. Howard reports she has informed the “powers that be” she is getting phone calls about the results of their investigation. Ms. Howard reports she hopes to get the letter out to everyone involved as soon as possible.

Update: August 1, 2006

Ms. Howard, Manager of the Labor Dispute Unit of the Illinois Department of Employment Security, reports her office will release a letter this week reporting their findings of determination of whether unemployment insurance benefits will be given to the Gateway Foundation employees who are not participating in the strike at Sheridan Correctional Center (Sheridan). Gateway employees Fred Nance Jr., Lisa Carrico and Kathy Wicevic applied for unemployment benefits on or about June 6, 2006.

Fred Nance Jr. and Kathy Wicevic are employees of Gateway working at Sheridan. Fred and Kathy began working at Sheridan on May 1, 2006. Fred and Kathy were cleared and had access to their employment everyday until June 6, 2006. Fred and Kathy were denied access to work when AFSCME the union started its strike on June 6, 2006. Fred and Kathy were not allowed to cross the picket lines of AFSCME the union.

On June 6, 2006 AFSCME the union, the Illinois Department of Corrections (IDOC) and Sheridan proclaimed all probationary employees of Gateway would not be allowed to cross the picket lines of AFSCME the union.

Fred and Kathy will no longer be probationary employees of Gateway/Sheridan as of August 1, 2006. On July 31, 2006 IDOC and Warden Rothwell of Sheridan report Fred and Kathy will not be allowed to cross the picket lines of AFSCME and enter Sheridan to work on August 1, 2006.

IDOC and Sheridan have allowed similarly situated employees of Gateway to cross the picket lines of AFSCME the union. AFSCME, IDOC and Sheridan continue to discriminate and violate Gateway employees right to cross the picket lines of AFSCME the union.

I, Fred Nance Jr., have reported AFSCME’s involvement in this “compulsory unionism” with IDOC and Sheridan to Ms. Boone of the National Labor Relations Board. It appears the Illinois Department of Employment Security is also involved in this “compulsory unionism.”

Update: July 27, 2006

Ms. Judy Boone and I held our telephone affidavit interview today. I responded to my charge against AFSCME for the telephone threat of intimidation and harrassment, and for their participation in compulsory unionism. Ms. Boone reports she will contact the Illinois Department of Corrections (IDOC) to see who is locking out the Gateway employees from their employment. Ms. Boone reports she will looking for information on who is responsible for the lockout of the Gateway employees. Ms. Boone believes IDOC may not answer her call to report. I gave Ms. Boone my lawyer’s information for contact. His firm will take the case from this point forward. My updates will be limited because of pending litigation.

I also talked to Ms. Cheryl Howard of the Illinois Department of Employment Security’s Labor Dispute Unit. Ms. Howard reports they are very close to making a decision. I may receive some correspondence in the mail on their determination next week.

Update: July 26, 2006

Ms. Judy Boone of the National Labor Relations Board (NLRB) called me requesting a telephone affidavit of the charge I have filed against AFSCME. I informed her a Gateway employee who crossed the picket line and is working reported an AFSCME union person followed him when he got off of work. This Gateway employee has filed an incident report with Gateway/Sheridan. Ms. Boone stated she was not interested in this charge. I informed Ms. Boone the actions of this union person was criminal. I informed Ms. Boone the criminal charge is stalking. Ms. Boone continued her stance against investigating the charge AFSCME. What does the NLRB investigate? Will there be a fair and impartial investigation into my initial charge? Will there be a fair and impartial bargaining position taken by AFSCME with Gateway? I don’t think so. It appears NLRB is working in concert with AFSCME against Gateway. This creates an unfair bargaining practice.

I talked to Ms. Boone’s supervisor Mr. Leonard Perez who informed me he did not care if I posted this issue on my website about their negligence in investigating the stalking charge. During this conversation Mr. Perez was belligerent and rude in his discussion of this matter. I informed Mr. Perez his “bold” conversation was rude and unacceptable. Mr. Perez stated and demanded I provide a telephone affidavit immediately. Mr. Perez stated and strongly reported I had an appointment and I canceled it. I informed Mr. Perez Ms. Boone and I just spoke for the first time on Tuesday, July 25, 2006, and made this appointment. I informed Mr. Perez I called Ms. Boone at approximately 10:30 pm informing her I had an attorney handling my matters with these issues and that I needed to consult with him before giving a telephone affidavit.

Mr. Perez stated and strongly informed me our telephone conversation was about to terminate. With this information I hung up the telephone. I immediately called phone number 312-353-7570 speaking with Mr. Charlie Muhl, NLRB’s Information Officer for the day. This number was provided to me from a letter I wrote on June 13, 2006 to Mr. Robert Battista, Chairman of Board for NLRB. Mr. Lester A. Heltzer, Executive Secretary, responded in writing, copying it to Chairman Battista.

Mr. Muhl directed me to the General Counsel, Washington DC office’s Operation Management Division at 202-273-2900. I called and was directed to the voice mail of Ms. Terry Morgan, Deputy Assistant General Counsel. I left a detailed message of these events. I am hoping she calls me back to discuss this matter. Mr. Perez may want to retaliate against me attempting to discredit my allegations against AFSCME, the union. It appears, on its face, that Mr. Perez is prejudiced toward me and my allegations against AFSMCE.

At approximately 9:35 am (CST), after the issues above, I received an email from my attorney. He instructed me to talk to Ms. Boone. I called Ms. Boone reporting I had received a reply from my attorney regarding giving a telephone affidavit to her. Ms. Boone was polite and courteous with her conversation. I informed Ms. Boone of the terrifying experience I had with her supervisor, Mr. Perez. Ms. Boone informed me she had no knowledge of my conversation with Mr. Perez. Ms. Boone and I made arrangements to have our telephone affidavit conversation on Thursday, July 27, 2006 at 9:00 am.

I talked to Ms. Terry Morgan, Deputy Assistant General Counsel of the NLRB, at approximately 1:50 pm (CST) about my issues. I informed her I talked to Ms. Boone and set another appointment for Thursday, July 27, 2006. During our discussion I suggested Mr. Perez’s hightened voice tones and negative demeanor came when I informed him I wanted advice from my attorney before giving testimony over the phone and when I informed him of the allegation of a “stalking” charge against AFSCME. Ms. Morgan stated I have the right to consult with an attorney. Ms. Morgan assured me Mr. Perez does not make the final decisions in my charge against AFSCME. Ms. Morgan also stated Mr. Perez has a good track record for being a professional. I assured Ms. Morgan I will put this incident behind me so that we can continue with the investigation of my charge against AFSCME.

Update: July 25, 2006

Ms. Cheryl Howard of the Labor Dispute Unit for the Illinois Department of Employment Security (IDES) reports the Illinois Department of Corrections is not accountable for not contacted her with the information needed to determine whether they have locked out Gateway employees from their employment because they did not join AFSCME on the strike line. On or about July 21, 2006 IDES sent me a letter stating “You are denied benefits until you earn a specific amount of wages. Is IDES bringing another issue to the table to deny my unemployment benefits? Are the previous companies I worked for not reporting my wages to IDES? Who has the answers?

Update: July 22, 2006

On July 17, 2006 I talked to Ms. Howard about my unemployment benefits again. She continues to state the Labor Dispute Unit of the Illinois Department of Employment Security (IDES) is investigating my claim. IDES has been investigating my claim since June 6, 2006.

Ms. Howard responded to a colleague of mine, who is also locked out of Sheridan Correctional Center, in writing regarding these issues. The letter states, in part, “This letter is in response to your letter of July 8, 2006, to the Governor’s Office of Citizens Assistance. In your letter you asked if the Illinois Department of Employment Security could speed up its response as to whether you will receive Unemployment Insurance Benefits. Your other questions concerned why you and other fellow workers were locked out of the Sheridan Correctional facility. On Friday, July 14, 2006, we spoke on the telephone. I informed you that I will be investigating your claim for benefits and adjudicating it under Section 604 of the Act, and that I will send you a written determination whether your claim is approved or denied. The investigation and adjudication may take a few weeks since the issues presented in your case are complicated, and I would appreciate your patience and cooperation during this period. As I discussed above, if a determination is issued finding you ineligible for benefits under Section 604, you will be provided with information about the required appeal procedures.” IDES HAS ONLY BEEN INVESTIGATING THIS ISSUE SINCE JUNE 6, 2006. I wonder how much time do they need.

On or about July 21, 2006 I received a letter from IDES stating, “You are denied benefits until you earn a specific amount of wages.” This is the second letter I have received with this statement. I informed Ms. Howard of the previous letter. She stated it was a “form” letter.

The Illinois Department of Corrections (IDOC) informed Gateway Foundation on or about June 6, 2006 their “probation” staff would be locked out of Sheridan Correctional Center due to the strike. I will be off “probation” status on August 1, 2006. What will IDOC’s reason be on August 1, 2006 for locking me out of my employment? IDOC IS VIOLATING MY RIGHT OF CHOICE TO CROSS THE PICKET LINES.

On or about July 21, 2006 I received a letter dated July 20, 2006 from my Congressman Jesse L. Jackson Jr. stating, in part, “Dear Governor Blagojevich: I write on behalf of my constituent, Mr. Fred Nance Jr…Though the concerns of Mr. Nance fall outside my official jurisdiction, I am forwarding his request to you as a service to my constituent. I hope that you will review the matter and respond directly to Mr. Nance. Thank you for your time and consideration. Sincerely, Jesse L. Jackson Jr., Member of Congress.” Will Governor Blagojevich respond to the concerns of those Gateway employees who have been forced out of their employment by his Department heads of the Illinois Department of Corrections, Illinois’ Central Management Service and the Illinois Department of Employment Security?

Update: July 15, 2006

The Illinois Department of Employment Security (IDES) appears to be conspiring with AFSCME, the Illinois Department of Corrections (IDOC) and Illinois’ Central Management Services (CMS) in their efforts toward compulsory unionism. IDES, IDOC, CMS and AFSCME are participating in an unfair labor practice against Gateway Foundation. IDOC and CMS are constructively and purposely locking out Gateway employees, who want to cross the picket lines, to assist AFSCME in their pursuit of union negotiations with Gateway.

I talked to Ms. Cheryl Howard, Manager of IDES’s Labor Dispute Unit on Friday, July 14, 2006. Ms. Howard informed me she had received my fax, which included the newspaper article from Mr. Jonathan Bilyk of the The Times.

Mr. Bilyk’s report taken from Derek Schnapp, spokeman for IDOC, states “He could not discuss the case in detail, as it involves personnel. All we can say is their case is under review, but they have not yet been cleared to enter the facility.” I, a non-striking Gateway employee, was cleared to enter Sheridan Correctional Center (Sheridan) before May 1, 2006. I had been entering Sheridan from May 1, 2006 through June 5, 2006 when I was denied entry to cross the picket line to go to work on June 6, 2006. What does Mr. Schnapp mean? Do I have to be cleared again because I am not striking? This appears, on its face, to be discrimination.

Nevertheless, Section 601 of the Illinois Unemployment Insurance Act states, in part, “An individual shall be ineligible for benefits for the week in which he has left work voluntarily….” and Section 604 states, in part, “…no individual shall be denied benefits by reason of a lockout….” I did not leave work voluntarily. I am not a participant in this strike or lockout. Where does this conspriacy end?

Update: July 12, 2006

I want to first thank Mr. Jonathan Bilyk and The Times Newspaper (Ottawa, Illinois) for having the strength, courage and duty to publish this article on July 12, 2006. Second, our plight has been known to the local media since June 7, 2006. I faxed this story to CBS News Chicago at 312-202-3878, and ABC News Chicago on June 7, 2006 at 312-899-8019, to the Associated Press on June 8th and 20th, 2006 at 312-781-1989 and 217-789-8973 respectively, to WQAD-TV on June 9, 2006 at 309-736-3306, to Mike Krauser of WBBM-780 News Radio on June 12, 2006 at 312-297-7822, and to Matt Buedel of the Peoria Journal Star on June 13th and June 30th, 2006 at 309-686-3296. Matt Buedel expressed his concern but he must have been too busy to report our plight. None of the others contacted me about this issue.

Mr. Jonathan Bilyk of “The Times”, a local newspaper in Ottawa, Illinois, reports in his column on Wednesday July 12, 2006 Gateway employees who want to cross the picket lines at Sheridan Correctional Center are being locked out. Mr. Bilyk has titled his writing “Sheridan: Willing workers seek answers, money.” Mr. Bilyk’s article reports, Mr. Derek Schnapp, a spokesman for the Illinois Department of Corrections, said he could not discuss the case in detail, as it involves personnel. “All we can say is their case is under review, but they have not yet been cleared to enter the facility,” he said.

Mr. Bilyk also reports AFSCME statement, which is, “…AFSCME spokesman Anders Lindall said his union would likely do nothing to help the workers, though Council 31 represents them as the official bargaining unit.”

Let’s examine these statements. Mr. Schnapp of IDOC confirms Gateway employees have been locked out from their employment. This should satisfy the Illinois Department of Employment Security’s (IDES) Section 604 of the Illinois Unemployment Insurance Act. I wonder if Ms. Howard, Manager of IDES’s Labor Dispute Unit, will give us our unemployment benefits now.

Mr. Schnapp also attributes the Gateway employees lockout to IDOC personnel. The questions become: What personnel? Did the IDOC personnel have the authority to lock out the Gateway employees, preventing them from crossing the picket lines? Are the IDOC personnel working with AFSCME in an unfair bargaining practice? Did the IDOC personnel violate the civil rights of the Gateway employees when they took their choice away to cross the picket lines of the striking Gateway employees?

AFSCME’s answers are just as puzzling. As the “official” bargaining unit for the striking union workers of Gateway, AFSCME is supposed to represent “all” the Gateway employees, whether they are participating in the strike or not. Mr. Bilyk’s article reports, “And AFSCME spokesman Anders Lindall said his union would likely do nothing to help the workers, though Council 31 represents them as the official bargaining unit.” Gateway employees better watch who they have representing them. If AFSCME does nothing to help the locked out employees, then they cannot propose to Gateway in the bargaining processes to advocate for all the Gateway employees. If AFSCME gets a contract with Gateway, AFSCME cannot request the Gateway employees who are not striking members to pay into a union that does not represent them. This is the message I am sending AFSCME today. If you do not represent us today, do not think you can reap financial benefits from us or represent us tomorrow.

The Times also posted this article on their website, website date July 12, 2006, the news report is as follows: Tuesday, the American Federation of State, County and Municipal Employees Council 31 announced it had filed petitions to represent counselors at two other state correctional facilities in Vandalia and Dwight. If approved, the petitions would mean that those counselors could join the Sheridan counselors on the picket line in the soon, said AFSCME spokesman Anders Lindall. While Sheridan workers are striking to protest what Lindall called unfair labor practices, the counselors at the other prisons could strike for legal recognition. “At this point, I would not preclude anything,” said Lindall. “This sends a message to Gateway that its employees at Sheridan led the way, and now others are following on the path of seeking a fair contract.”

The counselors in Vandalia and Dwight better examine for themselves what they are getting into going to bed with AFSCME. It will be their loss. AFSCME is just trying to start trouble in other Illinois correctional institutions.

Update: July 12, 2006

Ms. Cheryl Howard called me on July 12, 2006 informing me she read my blog this morning. Ms. Howard was concerned about me mentioning or targeting one person, Mr. Huntley, Chief Counsel for IDOC. Ms. Howard stated IDES’s Labor Dispute Unit is attempting to talk to others to gather information from “the other side.” I informed Ms. Howard my targeting Mr. Huntley was appropriate. I informed Ms. Howard Mr. Huntley is not returning her calls. Ms. Howard informed me disputes between labor organizations and companies take time. I informed Ms. Howard the issues I present to IDES is not against a labor union or an employer. I informed Ms. Howard Section 604 of the Illinois Unemployment Insurance Act states an employee who is locked out from his employment is eligible for unemployment benefits. This is the end of the story for IDES.

I informed Ms. Howard IDES can disburse the unemployment benefits to the “targeted” Gateway employees who are locked out of Sheridan Correctional Center while IDES investigates this charge because it is known a particular group of Gateway employees are locked out of Sheridan. Ms. Howard confirms she knows a particular group of Gateway employees are locked out from the information gathered by IDES’s Labor Dispute Unit, to date.

I also informed Ms. Howard the world knows IDOC and/or CMS has discriminated against, targeted and locked out a certain group of Gateway employees who want to cross the picket lines at Sheridan, by locking them out and forcing them to participate in the AFSCME strike against Gateway. IDOC and/or CMS are assisting AFSCME in their attempt to meet their needs by locking out a particular group of Gateway employees. This is an unfair bargaining practice. This “compulsory unionism”. I informed Ms. Howard the locked out Gateway employees are suffering “harm” because of the discriminatory actions of IDES, AFSCME, IDOC and/or CMS.

Update: July 11, 2006

Ms. Cheryl Howard, Manager of the Labor Dispute Unit of the Illinois Department of Employment Security (IDES) informed me today she had not received a return phone call from Mr. Huntley, Chief Counsel for IDOC. As stated before in other writings, Ms. Howard reports leaving several messages for Mr. Huntley requesting a return phone call. Ms. Howard also reports she informed their legal counsel who states they are going to call and leave messages for Mr. Huntley to call them.

I asked Ms. Howard, how long would IDES delay my unemployment benefits waiting for a person to return a call, when it is apparent Mr. Huntley is avoiding IDES’s phone calls and questions? Ms. Howard informs me her legal counsel and their policies dictate they must seek both sides of the story. I informed Ms. Howard the world knows I am locked out of my employment by IDOC and/or CMS. If I am locked out from employment, I am eligible for unemployment benefits pursuant to Section 604 of the Illinois Unemployment Insurance Act. Nevertheless, Ms. Howard stated IDES cannot make a decision unless they talk to Mr. Huntley. I informed Ms. Howard it appears as if Mr. Huntley is purposely and intentionally avoiding the issues by not returning the calls of IDES. Finally, I asked Ms. Howard two questions: How long will you wait for somebody to respond from IDOC? What answers are you looking for from IDOC? Ms. Howard reports she will give these questions to her legal representatives to answer.

On another note:

Presently, Gateway has about 47 employees and 4 or 7 employment positions open. Two Gateway employees crossed the picket lines today, July 11, 2006, coming off the picket lines, and into work. Presently, there are 7 Counselors and 2 Techs locked out of their employment with Gateway at Sheridan Correctional Center. Of these 9 Gateway employees, I know there are at least 4 Gateway employees not participating in the strike. There are a number of other Gateway Counselors who have not crossed the picket lines, nor are they participating in the strike. Therefore, the information coming from the strikers about how many people are on the strike line is false. At last report, a striker commented on my website that there were 41 strikers on the strike line. This is untrue. If there are 41 strikers on the strike line at Sheridan, they are not Gateway employees. I will update this report as more information becomes available.

On another note:

In a June 6, 2006 article “Union seeks role for gov in prison drama” written by Francine Knowles, Sun-Times Columnist, she reports “A unionized counselor with two years’ seniority working at other state corrections facilities makes $41,688 a year, compared with $28,723 paid to a Gateway counselor with two years seniority, said Anders Lindall, AFSCME Council 31 spokesman. Family health insurance coverage costs Gateway workers $391 or $448 monthly, depending on the plan, compared with $61.50 per month paid by other unionized counselors, he said.” This is crazy. The State of Illinois could never afford to pay for the multitude of services needed at these price.

The first question you must ask is “What unionized counselors is Lindall talking about?” If he is talking about a “unionized state employee, you cannot compare a state employee’s salary with a private “state contractual” social service employee’s salary. You cannot compare a state corrections counselor with a private social service counselor. Their roles are different. Specifically, the role of the Gateway counselor. The Gateway counselor’s role is therapeutic. The corrections counselor role is not therapeutic, its corrections. The criteria for both positions are completely different. The dialogue for this discussion is to laborious and exhaustive for a writing posted at this time. Basically, this is a ridiculous statement by Lindall. There is no comparison.

In addition, seniority in social service is never a criteria standing alone determining salary or anything else. In private social service companies merit, performance and seniority is the best criteria for determining salary and promotion. Another question to ask is, “What does seniority have to do with salary?” Just because a person has been working somewhere longer than someone else should not determine their salary increase or promotion status. The person with the most seniority could be the person with less experiences, the person with low performance marks, the person who just comes to work and conducts water-cooler conversations, the person with less academic standing, etc.

The reason the State of Illinois contracts out for the service Gateway provides is because of Gateway’s experience and track record and because the State of Illinois cannot afford what Lindall is promoting. We must also remember the State takes bids on their contracts. The State usually accepts and awards its contracts to the lowest bidder. The state and its legislators know contracting out for services will bring their budgets down promoting other agendas of their constituent base. If the State of Illinois could afford the salaries and amenities Lindall promotes for the multitude of services needed, it would not contract out.
jk
Don’t believe the hype!!!

Update: July 9, 2006

Mr. Bilyk:

Your article posted on July 8, 2006 does not mention the lock out of Gateway employees at Sheridan. You did not ask the State Legislators any questions about the illegal lock out of Gateway employees and the “compulsory unionism” of IDOC, CMS, IDES and AFSCME. Therefore, I have taken the privilege to respond to your article posting it on my website, giving the other side to this fiasco. I am also sending you, for the second time, the correspondence I sent to the State Representatives and the Senators copied below. You stated you never received these documents the first time. You stated you only received the Illinois Unemployment Insurance Act from me. I want to state, emphatically, someone in your office received my correspondence. You may choose not to publish or speak on the “compulsory unionism” at Sheridan. That is your choice but our plight is part of this fiasco, which had its birth with AFSCME, IDOC, CMS, and IDES. Our illegal lockout is the truth. We deserve to go to work if we want too.

Fred Nance Jr.

cc: Illinois State Reps – Lisa Dugan, Frank Mantino, Careen Gordon, Jack McGuire; Illinois Senators – Debbie DeFrancesco Halvorson, Gary Dahl, and Arthur Wilhelmi.

Update: July 8, 2006

I have faxed all the letters I have written to Governor Blagojevich, Illinois’ Central Management Services, the National Labor Relations Board and the Illinois Department of Employment Security to Illinois State Representatives Ms. Lisa Dugan, Mr. Frank Mautino (twice), Ms. Careen Gordon, Mr. Jack McGuire; and Illinois Senators Ms. Debbie DeFrancesco Halvorson, Mr. Gary G. Dahl and Mr. Arthur J. Wilhelmi. Will they investigate the charge of IDOC locking out Gateway employees who want to cross the picket lines? Someone has taken our right of choice away from us. We have a right to cross a picket line if we so choose to partake in our employment.

Mr. Jonathan Bilyk of “The Times”, a newspaper out of Ottawa Illinois, wrote an article on July 8, 2006 about the Sheridan Correctional Center Strike. I spoke to Mr. Bilyk on July 6, 2006 in detail about how AFSCME, IDOC, IDES and CMS were locking out Gateway employees who wanted to cross the picket lines.

During Mr. Bilyk’s interview, as reported in “The Times”, with Illinois State Representatives Frank Mautino (Democrat-Spring Valley), Careen Gordon (Democrat-Coal City), Lisa Dugan (Democrat-Kankakee) and Jack McGuire (Democrat-Joliet), he did not mention anything about our conversation, which centered around AFSCME (the union), the Illinois Department of Corrections (IDOC), Illinois’ Central Management Services (CMS) and the Illinois Department of Employment Security’s (IDES) involvement in “compulsory unionism”. This is a term used to describe a union forcing individuals to be part of union activities whether they want to or not, with the aid of others, creating an ufair bargaining practice. On July 7, 2006 Ms. Howard, Manager of the Labor Dispute Unit of IDES reports Ms. Gia Morris of CMS stated CMS had nothing to do with Gateway employees being locked out of their employment because Gateway employees are not State of Illinois employees.

These Democratic Illinois legislators, Mautino-Gordon-Dugan-McGuire, suggested to Governor Blagojevich to end Gateway’s contract with the State of Illinois at Sheridan Correctional Center because the union cannot get their way. What is this all about? The legislators are attempting to compare the salaries and benefits of private social service counselors with IDOC counselors. This is ridiculous!!! The State of Illinois contracts out to different vendors to cut cost to the government. If the State of Illinois could afford to hire more counselors, they would not be contracting out for the service. The State of Illinois is trying to get rid of deficits in spending and the government.

I believe these legislators attend meetings on the budget of Illinois. IDOC has cut cost by lowering the number of correctional officers in the Illinois Correctional system. If they cut these cost, what makes these legislators believe the State of Illinois can afford the increase in the budget to hire counselors? If the State of Illinois had the money, I believe the priority, in this instance, would be correctional guards.

Mr. Bilyk reports AFSCME representatives have launched an effort to persuade Governor Blagojevich to terminate Gateway’s contract. Why would the Governor terminate the contract of a vendor because a union does not like how they operate? Gateway is meeting their goals of the contract. Termination would be discriminatory.

Mr. Bilyk reports Ms. Careen Gordon stated, “this is truly a dangerous situation. This is putting every single person in every single community in this state at risk.” Is this lady crazy or what? Counseling is not an exact science. Just because a person receives counseling does not mean the disorder will go away. Ms. Gordon’s perspective comes from one side of the isle. She appears to be prejudiced toward Gateway. It is evident Ms. Gordon knows nothing about counseling or she would not have made such an outrageous statement. Ms. Gordon’s statement is like saying “fire” in a crowded movie theatre when there is no fire. Ms. Gordon has no facts to support this statement. Ms. Gordon has an agenda. She must have an agenda because she does not have “all” the facts. What kind of legislator speaks without having all the facts? Oh, Illinois legislators, what was I thinking.

Mr. Bilyk reports AFSCME’S president Henry Bayer stating, “Gateway’s primary goal at this point is to drive the union out, not treat prisoners.” What an outrageous statement!!! AFSCME issues have nothing to do with counseling and treating prisoners. The treatment programs at Sheridan, which are provided by Gateway, are not suffering. Mr. Bilyk also reports Mr. Bayer as saying, “And they have the right to do that, just not at taxpayers’ expense.” What taxpayer expense? Who do you think is going to pick up the tab if AFSCME and their cohorts get what their asking for, the taxpayers? Do they think we, the taxpayers, are dumb? Have these individuals compared the Gateway employees salaries and benefits to other social service agencies who provide counseling and have contracts with the State of Illinois? I have not heard any comments from them stating this comparison. This comparison would be more exact.

Finally, Mr. Bilyk reports Mr. Mautino said he believed Gateway, because of its state contract, has the financial ability to negotiate with the union, whose members have consistently said they want to be paid wages and have benefits similar to those of counselors employed by the Illinois Department of Corrections. Why did Mr. Mautino say he “believes” Gateway…? One says they “believe” when they have not investigated their belief. When you have investigated from all available sources, you make the statement “I know.” Mr. Mautino does not know anything but what AFSCME and the union members tell him. These legislators have not said anything in this article leading to a scientific inquiry into the salaries and benefits of social service agencies receiving contracts from the State of Illinois.

I have been in the business of providing social services for over 12 years. I am a PhD candidate who has fulfilled his obligations with all the core requirements in Human Services. I am left with 2 chapters for completion of my dissertation. My PhD is in Human Service with a focus on Social Policy Analysis and Planning. I think I know what I am talking about.

I have faxed the letters I wrote to Governor Blagojevich, Central Management Services, the Illinois Department of Employment Security and the National Labor Relations Board to Mr. Frank Mautino (for the 2nd time), Ms. Careen Gordon, Ms. Lisa Dugan and Mr. Jack McGuire requesting they investigate AFSCME and these entities for “compulsory unionism.” These entities are illegally locking out Gateway employees who want to provide the services these legislators are talking about. If these legislators are sincere about what they speak about wanting the clients of Sheridan to receive the needed services they speak about in this news article, then they will support the Gateway employees who want to cross the picket lines to provide this service.

Update: July 8, 2006

A “mysterious” person makes another comment on my site. She reports I am cutting down the Tech’s who will assist me at Sheridan with my work. First, I want to say I am not cutting down anyone, the Techs or the “ghost” writer of this comment.

The ghost writer reports the Techs help maintain structure, do the counselor’s copying, curriculum, filing, etc. I do my own work. At one time in my career I contracted out to 4 different agencies at the same time. I maintained my own counseling group structure. This is what I was taught in my Master degree program at Roosevelt University. I do my own copying, building my curricula, filing, etc.

The ghost writer talks about the counselor’s have a 20-1 client to counselor ratio. At one time I was a case manager for HRDI. I had a caseload of over of 200 families, plus children. I operated at over 90% a month for contact with my families. This led to my Directorship of HRDI’s Mental Health Residential Program. In case you want to know, I resigned this job to re-construct, organize and implement policies and procedures for a homeless program.

The ghost writer invites me to talk to the “real” workers of Gateway. The invite is nice, but inappropriate at this time. I talked to the “real” workers about their union before the strike. At the moment, I am addressing the BIGGER picture. I am examining the “compulsory unionism” of AFSCME, IDOC, CMS and IDES, and the Social Policy Implications of tyranny and oppression which spills from it.

Update: July 7, 2006

On July 7, 2006 I talked to the Director of Gateway/Sheridan, Gregg Dockins, who informed me I could not attend a scheduled PSOT training at the College of DuPage scheduled for July 24, 2006 per IDOC.

This is a mandatory IDOC training, which was scheduled by IDOC in May 2006. IDOC scheduled all of Gateway’s probationary people for this training, which is off-site of Sheridan Correctional Center at the College of DuPage. Mr. Dockins reports IDOC states no probationary people can attend this training because IDOC does not know who is striking and who is not striking, and IDOC cannot authorize a striking person to attend the PSOT training. Mr. Dockins reports he asked the Assistant Warden, who ask the powers to be, if the Gateway employees scheduled for the training can attend the IDOC mandatory PSOT training. The Assistant Warden of Sheridan informed Mr. Dockins the probationary employees of Gateway cannot attend the PSOT training. Mr. Dockins reports an attempt to inform IDOC of who was striking and who was not striking. IDOC did not want to know who was striking and who was not striking. IDOC is now denying Gateway employees who are not striking the right to attend a training, which the training is not at Sheridan Correctional Center.

On July 7, 2006, I received a call from Ms. Howard, Manager of the Labor Dispute Unit of the Illinois Department of Employment Security (IDES). Ms. Howard reports Gia Morris of Illinois’ Central Management Services (CMS) stated CMS had nothing to do with my lockout at Sheridan Correctional Center. Ms. Morris reports to Ms. Howard I am not a State employee and therefore, CMS had nothing to do with my lockout. Ms. Howard stated Ms. Morris said Gateway and IDOC have a contract where there might be a clause for locking out probationary employees. Ms. Howard reports Ms. Morris stated the lockout is between IDOC and Gateway. Ms. Howard states she has another call in to Mr. Huntley, Chief Counsel for IDOC requesting a copy of the contract between Gateway and IDOC. Mr. Huntley talked to Ms. Howard last week. Ms. Howard states she is going to write up something for her legal authorities at IDES today.

Update: July 6, 2006

On July 5, 2006 I talked to Mr. Craig Sterrett of the News Tribune in LaSalle about these issues. On July 6, 2006 I sent fax copies of this issue to Mr. John Bilyk of The Times in Ottawa. On July 6, 2006 I had a personal one-on-one interview over the phone with Ms. Melissa Hahn of the Illinois Radio Network. On July 6, 2006 I talked to Erinn Deshinsky of the Peoria Journal Star. Look for discussions on this topic from these professionals.

Update: July 3, 2006

I received this letter from United States Senator Richard Durbin. It appears Mr. Durbin has not been reading the news lately. Does Mr. Durbin know there is a Federal investigation being conducted by United States Attorney Patrick Fitzgerald and Illinois Attorney General Lisa Madigan on the Governor’s administration? Does Mr. Durbin know the Illinois Department of Corrections (IDOC), Central Management Services (CMS) and the Illinois Department of Employment Security (IDES) is part of the Governor’s administration? In Mr. Durbin’s letter, posted below, he referred my issues back to IDOC. Why didn’t Mr. Durbin refer my issues to Mr. Fitzgerald or Ms. Madigan? I guess he believes in an entity investigating itself. Mr. Durbin states his office does not handle issues like the one I presented regarding the fiasco at IDOC. Even though the Governor’s administration is being investigated by Federal investigators, Mr. Durbin does not think this should be part of the Federal investigation. Mr. Durbin also states “…If my office can be of assistance with any matter of federal concern, please do not hesitate to contact me again.” Mr. Durbin’s response letter to the issues I presented his office on IDOC, CMS and IDES is reported below.

United States Senate
Washington, DC 20510-1304

June 30, 2006

Mr. Fred Nance

Dear Mr. Nance:

I received your correspondence at my Chicago office and have taken the liberty of forwarding your letter to the Illinois Department of Corrections for further investigation and assistance because this matter is not handled through our offices. I trust they will respond directly to you about your concerns.

If my office can be of assistance with any matter of federal concern, please do not hesitate to contact me again.

Very truly yours,

Richard J. Durbin
United States Senator

230 South Dearborn St., Suite 3892
Chicago, Illinois 60604
312-353-4952

RJD/cd

Update: July 2, 2006

I want to briefly respond to the anonymous Gateway striker about her issues, which she sent as a comment to this website. You state “…Gateway needs to come to the table and explain to its employees who do all the work….” What do you mean by this statement? You were hired to do the work. You are supposed to do the work. Who do you think should do the work?

On another note: What has a counselor been doing who has a B.A. and working in the field for 8 years? A counselor should continuously update their academic standing, especially working in the field for 8 years. This is how a counselor can market themselves to social service agencies requesting a salary worthy of their academic standing along with experience. I know a lot of counselors who are left in the cold because they decided to sit on their butts, thinking they had a free ride coming when it was time for promotion or pay raises because of their “seniority.”

Let’s talk about salaries. The salaries of a counselor will vary position to position. The rate of pay may be determined by many factors. A factor may be what is the going rate across the private social service world? The pay rate will not be what the State of Illinois’ pays their counselors. You have to be thoughtful of who is paying the bills. The State of Illinois is paying the contractor, within a budget constructed by the legislature. The State of Illinois is paying their counselors from their budget, which may be from a different set of figures. The counselors working for Gateway will have salaries determined for Gateway counselors throughout their agency. They are not determined by salaries paid to State counselors.

I am not sure why Gateway has techs. I have not been working with Gateway at Sheridan long, but from what I have seen the counselors can do what the techs are doing. It should be the responsibility of the counselor to set their agenda, acquire the necessary paperwork for attendance, curricula, etc. A tech’s job could not possibly pay more than what you quote. Since you have been working there for some time, tell us what the responsibilities of a tech are.

As far as healthcare, pension, etc. let’s explore why the State of Illinois contracts out for a service, specifically, let’s talk about healthcare briefly. I will try to make this real simple. Healthcare, in general, is going through the roof. The Governor’s office selects a program such as the Sheridan Project. The legislature may vote and decide what the budget may be for that program. To be cost effective, it may be determined the best way to have the program implemented is to contract it out so the State of Illinois will not have to pick up the cost of healthcare, etc. As far as healthcare is concerned, the contractor has to pick up the healthcare cost instead of the Illinois Government. This saves the government money.

When you guys compare your jobs as counselors for a contractor, you cannot compare your salaries and benefits with IDOC counselors because the government picks up the tab. You have to compare your salaries and benefits with other private social service agencies with counselors on their payroll.

Those legislators walking the picket lines with you guys should have explained this to you. They could have explained it better than I do here. The reason they did not explain it to you is because they love to see people “jump out the window without a parachute.” The legislators had their agenda for walking the line with you, trust me. You gave them some needed publicity and it appeared as if they were union oriented. Your union should have researched this area and explain it to you. Your union is just trying to break ground in another sector of business. Your union has set you up for failure in this area.

Update: July 1, 2006

There were other motivating factor why I got into writing about this issue, which I had no concern for in the beginning. The motivating factors were intimidation and someone messing with my family’s livelihood. AFSCME, IDOC, CMS and the striking employees could have done anything they wanted to do without my involvement. They stepped over the line messing with my financial situation and the well-being of my family. My involvement in this issue has nothing to do with the Gateway Foundation and its structure. I am merely giving a comparative analysis of the social policy implications and social change atmosphere created by AFSCME, IDOC, CMS and others.

Now, lets get back to business. I finally received a comment(s) from an “intelligent communicator”, who would not identify themselves, of the striking employees at Sheridan. First, I want to say management decisions on hiring and salary may be based on a set of criteria throughout the “entire” agency, which the strategies are solely left with them. There is nothing violated here by Gateway pursuant to Title VII and its amendments, which may govern the concerns of the strikers. Second, as for posting the comment(s) of this communicator, I will not do so until the media people you have been talking to post my correspondence I have sent to them. This is a two-way street. I have no problem communicating with you by email, if I knew who I was talking too.

On another note: Ms. Brenda Russell of the Illinois Department of Employment Security contacted me on June 30, 2006 by telephone stating they had a letter for me. I went to her downtown Chicago office to pick it up. The letter basically “outlines” the policies and procedures of the Illinois Unemployment Insurance Act, which through my personal research I acquired when I did not get an initial response from her office. Ms. Russell reports who is eligible and ineligible for unemployment benefits. The disturbing part of the letter to me is her statement, “…The investigation and adjudication may take a few weeks since the issues presented in your case are complicated and part of a current labor dispute.” There is nothing complicated about my issues. Section 604 of the Act clearly allows benefits for individuals locked out from their employment. This statement, in context, avoids responsibility and keeps with the oppressive and tyrannical nature of the strike and its allies. It does not take weeks to settle this issue. Its takes a day. If IDES’s attorneys need more time than that, I wonder how did they pass the bar.

Update: June 30, 2006 – Lt. Governor Pat Quinn

On June 28, 2006 the Peoria Journal Star reports Lt. Governor Pat Quinn breaks ranks with Governor over labor dispute. On or about June 28, 2006 at approximately 12:01 am I faxed Mr. Quinn 37 documents on the strike at Sheridan Correctional Center. I faxed this document to Mr. Quinn after reading the statements he made to the Peorial Journal Star. In the fax of June 30, 2006 I requested Mr. Quinn break ranks with the “union” and tell the other side to the story. He has the details. His choice may be to stay with the union. Mr. Quinn appears to sacrifice his other constituents. Mr. Quinn had sufficient information to make a more appropriate statement than the one given after he received my fax. The position Mr. Quinn takes is clear to the voters. He is not for employees rights. He is not for employees having a choice whether they want to cross a picket line to feed their families. It appears Mr. Quinn is going for the “union” vote. Go to the Illinois Capitol Fax Blog for more details. Further updates coming.

June 30, 2006

Honorable Rod R. Blagojevich
Governor of Illinois, Office of the Governor
207 State House
Springfield, Illinois 62706
Sheridan Correctional Center Strike

Governor:

I, Fred L Nance Jr., wrote a letter to you on June 6, 2006 regarding my employment with Gateway Foundation (Gateway) at Sheridan Correctional Center (Sheridan). You have not responded, in writing or verbally, to my letter of June 6, 2006. In the letter of June 6, 2006 I report AFSCME union members working for Gateway decided to go on strike on June 6, 2006. AFSCME union members working for Gateway have developed a bargaining unit. The bargaining unit is in the negotiating processes with Gateway. I am not a union member. I did not sign a membership with AFSCME. I am not striking against Gateway at Sheridan. I am not participating in the strike in anyway.

The Illinois Department of Corrections (IDOC) and/or Illinois Central Management Services (CMS) has locked me out of Sheridan because I am not a union member and participating in the strike. I have written and fax letters regarding this issue to Mr. Roger E. Walker Jr., Director of IDOC and to Mr. Paul Campbell, Director of CMS. They have not responded, in writing or verbally, to my issues.

I have written Ms. Brenda Russell, Director of the Illinois Department of Employment Security (IDES) regarding my unemployment benefit claim pursuant to §604 of the Illinois Unemployment Insurance Act stating I am not a union member, I am not participating in the strike and I was locked out of my employment by IDOC and/or CMS. She has not responded, in writing or verbally, to my letter.

I researched IDES contacting the Labor Dispute Unit. I called Manager Cheryl Howard leaving a voice mail requesting she call me on this issue. Ms. Howard responded expeditiously, calling me attending to my concerns regarding unemployment benefits. Ms. Howard reports she had to pass my case to the Labor Dispute Unit attorneys for review. The attorneys have not responded, in writing or verbally, to my concerns.

Sir, it seems to be a pattern here by you and the decision makers of your administration. First, you and your administration are not responding to the concerns of your constituents. Second, it seems they are catering to the goals of AFSCME creating an unfair bargaining practice between AFSCME and Gateway. It seems IDOC, CMS and IDES are purposely hindering the fair bargaining processes of this labor dispute. It seems IDOC, CMS and IDES are favorably treating AFSCME concerns by targeting and locking out specific employees of Gateway who want to cross the picket lines. At the end of the day, all employees of Gateway are your constituents.

All employees of the State of Illinois expect you and your administration to respond in a professional manner to their concerns, especially when there appears to be corruption and tyranny afoot. There is no legal basis or foundation for this lockout of targeted Gateway employees. This assumption is made because there is no response from you or your administration. It is not the responsibility of Gateway, participating in fair bargaining practices, to inform the targeted employees of reasons for their lockout status. Gateway did not lock their employees out of Sheridan. Gateway is welcoming any employees who want to cross the picket lines, which is a legal right. Is your administration engaged in illegal activities targeting and locking out specific employees of Gateway? Are you and your administration engaged in unfair bargaining practices with AFSCME?

Sir, I and many of my colleagues, who I am in contact with, want to work. We have a right as citizens of the United States of America to work without hindrance from our government and your administration. We have a right to cross the picket lines created by AFSCME. Your administration is denying citizens of the United States the opportunity to work to support of their families. Is this the legacy you want to leave? Where are our human rights? Where is our right to seek, gain and retain employment without illegal hindrances from our government?

Someone from your administration must respond to the need of your constituents. How can you or your administration justify denying citizens of Illinois the right to work because they do not belong to a union or condone specific union activities. I am not anti-union. I, along with many others, do not like oppression and tyranny. If a person does not want to strike against their employer, they should not be forced to participate in a strike, especially in the bargaining stages of the formation of a contract. AFSCME does not even have a contract with Gateway. My position would be completely different if the union was in place upon my hire. I am a team player. I did not come to Gateway/Sheridan to cause harm. I came to provide a needed service to the consumer. Sir, its time for us to go back to work if that is our choice. Your administration has taken choice away from us. What does Independence Day stand for in the United States of America? Sir, how do I feed my family?

Respectfully submitted,

Fred L Nance Jr., ABD, MA, CADC, NCRS

cc: Mr. Gregg Dockins, Director Gateway/Sheridan
Mr. Jim Young, Right to Work Foundation
Ms. Brenda Russell, Director IDES
Mr. Paul Campbell, Director CMS
Mr. Roger E. Walker Jr., Director IDOC
Ms. Judith M. Boone, Field Examiner National Labor Relations Board
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