The following article is reprinted with permission from the author.
The ECWd clarify discrepancies in the Northwest Herald article printed yesterday http://www.nwherald.com/2018/01/23/algonquin-township-highway-commissioner-andrew-gasser-wins-round-in-labor-dispute/ab2gl2v/
Algonquin Township – State Labor Relations Board rejects Administrative Law Judge recommendations
McHenry Co. (ECWd) –
When it comes to legal terminology and rules of civil procedure, the language used has distinct meaning and procedures are in place for well-established reasons.
Many legal cases in our history are won or lost on a technicality.
After reading some of the local reporting, we would like to first start by pointing out some red flags we see which may lead readers to an understanding not supported by the recent ruling.
It has been claimed the order was reversed. That is not correct. The order stated, “we reject the ALJ’s recommendations and remand the matter for further proceedings.”
A rejection of recommendations is not a reversal, especially when it points to remanding the matter for further proceedings, which is where the real meat and potatoes of this case will be argued.
A reversal would be that the three employees in question do not get their jobs back.
It has been reported: “On Sept. 28, Administrative Law Judge Deena Sanceda granted that request. By not responding, the highway department waived its right to a hearing and admitted to the unfair labor allegations, Sanceda said.”
That reporting raised red flags because we know the highway department did not admit to the unfair labor allegations.
We believe proper reporting should have clarified the ALJ’s response to better inform the public.
From the Decision and Order:
“Noting that the Board and courts have consistently applied Section 1220.40(b) to hold that a failure to answer a complaint for hearing results in the admission of all allegations in the complaint, ALJ Sanceda granted Local 150’s motion and deemed the factual and legal allegations as stated in the Complaint admitted, providing the basis for finding the Highway Department violated the Act.”
What happened in this case, from the actual Decision and Order: “ALJ Sanceda granted Local 150’s motion and deemed the factual and legal allegations as stated in the Complaint admitted”.
We agree, a failure to answer a complaint results in the Board and Court’s ability to hold (deem) such failure as an admission of allegations.
However, holding a legal position because of a procedural failure (answering the complaint) is much different than the party actually admitting to the unfair practice as was reported.
One can lose a case because of a procedure failure and the courts may hold that failure as an admission, but that is not the same as claiming the party actually admitted to the allegations in the complaint.
Andrew Gasser has never admitted to the allegations in the complaint.
The technicality applied, in this case, was that of proper service.
All lawyers know without proper service a case can be scuddled fairly quickly.
It would appear the Union understood this argument as they filed a Motion to Amend by properly naming the party to be served, which could be “deemed” an admission of improper service.
While many are attempting to minimize the difference between a Road District and a Highway Department, a procedural technicality applied, in this case to the Road District’s advantage, we want people to know what the law says.
Over time the co-mingling of terms by Highway Commissioners is what has created this legal technicality that so many want to downplay.
Although the common citizen knows what unit of government is being tied up in litigation, how many know the legal names that should be applied?
A Highway Commissioner is an officer of the Township. They are the Highway Commissioner of a Road District.
A Road District is the Township.
“Each township of the several counties under township organization, for the purposes of this Code, shall be considered and is called a road district for all purposes relating to the construction, repair, maintenance, financing and supervision of township roads unless under prior law it has been or pursuant to this Code is consolidated into a consolidated township road district or into a county unit road district.”
What is a Highway Department?
So if there is no legal reference to a Highway Department, why on earth would the Lawyer for the Union name the Highway Department?
The Administrative code for labor disputes clearly spells out who should be served.
“The charging party shall serve a copy of the charge upon the respondent. Service may be made personally, or by registered mail, certified mail, regular mail, or private delivery service.”
Who is the respondent? The Highway Commissioner, an elected Officer of the Township.
Over the years Township Highway Commissioners have referred to their office and employees as the Highway “Department”, even though technically there is no legal office of Highway Department. It is simply an administrative reference to the public office of Highway Commissioner of a Road District.
The co-mingling of terms appears to be what created this “technical” victory in Algonquin.
I suspect this issue will become part of the Township Officials of Illinois future training sessions.
The copy of the actual decision and order can be downloaded here or viewed below.
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