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

Posted by C.L.I.C.K. for Social Change on May 14, 2008

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.


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    Sheridan Project: Illinois Department of Corrections 1st Lockout of Fred Nance on June 6, 2006 « Click for Justice and Equality

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