IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CHANCERY DIVISION

Transcription

1 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CHANCERY DIVISION American Federation of State, County and Municipal ) Employees, Council 31, AFL-CIO, for and on behalf ) of AFSCME Locals 1767, 3315, and 3696, ) ) Plaintiff, ) ) Injunction / Temporary v. ) Restraining Order ` ) Board of Commissioners of Cook County, Illinois, ) ) Defendant. ) VERIFIED COMPLAINT FOR INJUNCTIVE RELIEF NOW COMES the Plaintiff, American Federation of State, County and Municipal Employees, Council 31, AFL-CIO, for and on behalf of AFSCME Locals 1767, 3315 and 3696, and complains against the Defendant, Board of Commissioners of Cook County, Illinois, Defendant, as follows: 1. The Court has jurisdiction of this action pursuant to the Illinois Uniform Arbitration Act, 710 ILCS 5/1, et seq.; Section 8 of the Illinois Public Labor Relations Act, 5 ILCS 315/8; and Section 6 of the Cook County Assistant Public Defender Collective Bargaining Ordinance, Cook County Ordinance No. 06-O Plaintiff, American Federation of State, County and Municipal Employees, Council 31, AFL-CIO ( AFSCME ), is a labor organization within the meaning of Section 3(i) of the Illinois Public Labor Relations Act, 5 ILCS 315/3(i).

2 3. Defendant Board of Commissioners of Cook County ( County ) is a public employer within the meaning of Section 3(o) of the Illinois Public Labor Relations Act, 5 ILCS 315/3(o). 4. Plaintiff and Defendant are parties to three collective bargaining agreements covering employees of the Office of the Public Defender of Cook County represented by Plaintiff. 5. Plaintiff, for and on behalf of AFSCME Local 3315, and Defendant are parties to a collective bargaining agreement covering Assistant Public Defenders employed in Defendant s Office of the Public Defender. A true and accurate copy of the agreement effective December 1, 2001, through November 30, 2004, is attached hereto as Exhibit 1 and made a part hereof. 6. Plaintiff, for and on behalf of AFSCME Local 3696, and Defendant are parties to a collective bargaining agreement covering support staff employees employed in Defendant s Office of the Public Defender. A true and accurate copy of the agreement effective December 1, 2001, through November 30, 2004, is attached hereto as Exhibit 2 and made a part hereof. 7. Plaintiff, for and on behalf of AFSCME Local 1767, and Defendant are parties to a collective bargaining agreement covering Investigators employed in Defendant s Office of the Public Defender. A true and accurate copy of the agreement effective December 1, 2001, through November 30, 2004, is attached hereto as Exhibit 3 and made a part hereof. 8. On June 21, 2006, Plaintiff and Defendant reached agreement on the terms of successor agreements to the aforesaid three collective bargaining agreements. The successor agreements, which are effective from December 1, 2004, through November 30, 2008, have not yet been printed. 9. On July 11, 2006, Plaintiff notified Defendant that the agreements had been ratified. 2

3 10. On July 12, 2006, Defendant adopted Resolution No. 06-R-294, approving the general increases and salary adjustments negotiated by Plaintiff and Defendant for the agreements. A true and accurate copy of said Resolution is attached hereto as Exhibit 4 and made a part hereof. 11. The collective bargaining agreements contain grievance procedures culminating in final and binding arbitration. (Ex. 1, Art. XII, pp ; Ex. 2, Art. XI, pp ; Ex. 3, Art. XI, pp ) follows: 12. The Local 3315 agreement, covering Assistant Public Defenders, provides in part as (Ex. 1, pp. 4-5.) ARTICLE III Hours of Work Section 1. Hours of Work: Hours of work for Assistant Public Defenders shall be commensurate with their professional responsibilities. The position is full-time and each Assistant Public Defender shall be available during regular operational hours. The parties recognize that the County has the authority, consistent with this Agreement, to ensure that employees fulfill the above responsibilities. Section 2. Secondary Employment Assistant Public Defenders are full-time employees and shall fulfill their responsibilities as are described in Section 1 above and Article II, Section 3 of this Agreement. Except in their capacity as Assistant Public Defenders, assistants shall not practice criminal law at any time, nor shall they represent clients in courts or administrative hearings. 3

4 ARTICLE IV Seniority Section 3. Reduction in Work Force, Layoff and Recall: Should the County determine that it is necessary to decrease the number of Assistant Public Defenders, the employees to be laid off shall be removed from it in inverse order of seniority with the Public Defender s Office.... (Ex. 1, p. 6.) follows: 13. The Local 3696 agreement, covering support staff employees, provides in part as (Ex. 2, pp. 4-6.) ARTICLE III HOURS OF WORK Section 1. Regular Work Periods: The regular work day for a full-time employee shall be 8 hours each day, to equal 40 hours in a work week. The work week will generally run Monday through Friday. Section 7. Docking Provision: All regular, full time employees must account for the requirednumber of hours in each workweek in order to receive the full salary and commensurate benefits. The accounting of the regular hours may be in the form of actual time worked and approved leave time, i.e., holidays and use of accrued vacation, personal, sick and compensatory time. 4

5 ARTICLE XIII FILLING OF VACANCIES Section 7. Reduction in Work Force: (Applies to Locals 1111, 1178, 1276, 3368, 3696 and Public Guardian Clericals). Should it become necessary to decrease the number of employees within a job classification, the employees in the classification shall be removed from it in inverse order of seniority. The affected employees and the Union shall be given notice thereof at least thirty (30) days prior to the effective date. In the event there is an elimination of positions within any classification, the positions eliminated will be identified. An employee subject to layoff due to the elimination of his/her position shall be placed in the position of the least senior employee in that classification within the work location (Department- Locals 1111, 1276, 3696, Division-Local 1178, Unit-Local 3368, 1Public Guardian Clerical). The least senior employee displaced in the work location shall be placed in the position of the least senior employee in the classification in the bargaining unit. An employee may, in lieu of bumping to a position outside of the employee s work site, choose to be placed in vacant position in the next lower classification at his/her work site. The least senior employee displaced in the classification in the bargaining unit shall be offered the position of the least senior employee in the next lower classification in the classification series, first by work location, then by bargaining unit, in accordance with the seniority provisions of this Agreement. Employees who have previously served in another classification outside their classification series shall also be offered the right to displace the least senior employee in that classification, first within the work location, then the bargaining unit. (Ex. 2, p.27.) 14. The Local 1767 agreement, covering Investigators, provides in part as follows: 5

6 (Ex. 3, pp. 4-5.) ARTICLE III HOURS OF WORK Section 1. Regular Work Periods: The workday shall commence from the employee s scheduled starting time. The normal workday shall be eight consecutive hours, including a lunch period. If an employee cannot report to work as scheduled, the employee must notify the supervisor/designee prior to scheduled reporting time. The time for notification shall be determined by management, but in no case shall exceed two (2) hours. A. For the Office of the Public Defender, the workweek shall begin at 12:00 midnight Sunday and end at 11:59 p.m. the following Saturday. The normal workweek consists of five consecutive workdays, Monday through Friday except those investigators assigned to Holiday Court and in other situations dictated by courts or clients needs. An employee will be docked for all time not worked during his/her regularly scheduled work day, subject to Section 7 of this Article. Section 7. Docking Provisions: All regular, full time employees must account for the required number of hours in each workweek in order to receive the full salary and commensurate benefits. The accounting of the regular hours may be in the form of actual time worked and approved leave time, i.e., holidays and use of accrued vacation, personal, sick and compensatory time. ARTICLE XIII FILLING OF VACANCIES Section 4. Reduction in Work Force: Should it become necessary to decrease the number of employees within a job classification, the employees in the classification shall be removed from it in inverse order of seniority. The affected employees 6

7 and the union shall be given notice thereof at least thirty (30) days prior to the effective date. In the event there is an elimination of positions within any classification, the position eliminated will be identified. An employee subject to layoff due to the elimination of his/her position shall be placed in the position of the least senior employee in that classification with the work location. The least senior employee displaced in the work location shall be placed in the position of at least senior employee in the classification in the bargaining unit. However, a Local 1767 member in the Public Defender s Office, the Medical Examiner s Office or the Juvenile Temporary Detention Center may only bump a less senior employee in his or her respective office. An employee may, in lieu of bumping to a position outside of the employee s work site, choose to be placed in vacant position in the next lower classification at his/her work site. The least senior employee displaced in the classification in the bargaining unit shall be offered the position of the least senior employee in the next lower classification in the classification series, first by work location, then by bargaining unit, in accordance with the seniority provisions of this Agreement. Employees who have previously served in another classification outside their classification series shall also be offered the right to displace the least senior employee in that classification, first within the work location, then the bargaining unit. (Ex. 3, p. 27.) 15. The collective bargaining agreements contain the same grievancearbitration, hours-of-work and layoff provisions as are contained in the agreements. 16. Defendant currently employs approximately 480 Assistant Public Defenders, 125 support staff employees, and 70 Investigators in the Office of the Public Defender who are represented by Plaintiff and covered by the aforesaid collective bargaining agreements. 7

8 17. In a letter dated February 1, 2007, from Jonathan Rothstein, Special Assistant to the President of the Cook County Board of Commissioners, to Michael Newman, Associate Director of AFSCME, the Defendant notified Plaintiff that because Cook County is facing a severe budget crisis the Defendant, effective March 5, 2007, will implement a reduced-work-schedule plan for all Assistant Public Defenders as follows: 1. Effective March 5, 2007, no workweek of any assistant public defender will exceed four (4) days, and ten (10) of the workweeks during the period between March 5, 2007 and the end of 2007 will not exceed three (3) days. 2. Effective March 5, 2007, the salary of each assistant public defender will be reduced proportionately to reflect the reduced workweeks. A true and accurate copy of said letter is attached hereto as Exhibit 5 and made a part hereof. 18. In a letter dated February 1, 2007, from Jonathan Rothstein to Monique Hodges, President of AFSCME Local 3696, Defendant notified Plaintiff that because Cook County is facing a severe budget crisis Defendant, effective March 5, 2007, will implement a reduced-work-schedule plan for all support staff employees employed in the Office of the Public Defender as follows: 1. Effective March 5, 2007, no workweek of any clerical employee represented by A.F.S.C.M.E. Local 3696 will exceed four (4) days, and ten (10) of the workweeks during the period between March 5, 2007 and the end of 2007 will not exceed three (3) days. 2. Effective March 5, 2007, the salary of each clerical employee represented by A.F.S.C.M.E. Local 3696 will be reduced proportionately to reflect the reduced workweeks. A true and accurate copy of said letter is attached hereto as Exhibit 6 and made a part hereof. 8

9 19. In a letter dated February 5, 2007, from Jonathan Rothstein to Noel Zupancic, President of AFSCME Local 1767, Defendant notified Plaintiff that because Cook County is facing a severe budget crisis Defendant, effective March 5, 2007, will implement a reduced-work-schedule plan for all Investigators employed in the Office of the Public Defender as follows: 1. Effective March 5, 2007, no workweek of any investigator working for the Office of the Public Defender will exceed four (4) days, and ten (10) of the workweeks during the period between March 5, 2007 and the end of 2007 will not exceed three (3) days. 2. Effective March 5, 2007, the salary of each investigator working for the Office of the Public Defender will be reduced proportionately to reflect the reduced work weeks. A true and accurate copy of said letter is attached hereto as Exhibit 7 and made a part hereof. 20. On February 2, 2007, Plaintiff filed grievances protesting Defendant s unilateral implementation of a reduced-work-schedule plan with respect to the Assistant Public Defenders and the support staff employees in the Office of the Public Defender as violative of the applicable collective bargaining agreements. In a cover letter from Michael Newman to Jonathan Rothstein sent with the grievances, Plaintiff requested that the parties meet on February 5, 2007, in an attempt to resolve the grievances and that if they were not resolved at such meeting the grievances be scheduled for immediate arbitration in order that a decision on the grievances could be rendered prior to March 5, Specifically, Plaintiff stated that: Given the immediacy of the situation, the high degree of potential County liability, and the County s severe fiscal crisis, the Union is requesting that the parties meet no later than Monday, February 5. Should the parties be unable to resolve the grievances at that meeting, the Union requests that the grievances be scheduled for immediate arbitration. 9

10 For purposes of expediency and efficiency, we are proposing that the grievances be combined for the purpose of hearing before an arbitrator. Our staff will work with you to clear our calendars to find an appropriate date so that the grievances can be heard and decisions rendered prior to March 5, True and accurate copies of said letter and grievances are attached hereto as Exhibit 8 and made a part hereof. 21. On February 6, 2007, Plaintiff filed a grievance protesting Defendant s unilateral implementation of a reduced-work-schedule plan with respect to the Investigators in the Office of the Public Defender as violative of the applicable collective bargaining agreement. In a cover letter from Michael Newman to Jonathan Rothstein sent with the grievance, Plaintiff requested that the parties attempt to resolve the grievance at a meeting scheduled for that day and that if it was not resolved at such meeting the grievance, together with the two previously filed grievances, be scheduled for immediate arbitration in order that a decision on the grievances could be rendered prior to March 5, Specifically, Plaintiff stated that: Given the immediacy of the situation, the high degree of potential County liability, and the County s severe fiscal crisis, the Union is requesting that the parties attempt to resolve this grievance, along with those previously filed on behalf of Locals 3315 and 3696, at the meeting scheduled for this afternoon. Should the parties be unable to resolve the grievances at that meeting, the Union requests that the grievances be scheduled for immediate arbitration. For purposes of expediency and efficiency, we are proposing that the grievances be combined for the purpose of hearing before an arbitrator. Our staff will work with you to clear our calendars to find an appropriate date so that the grievances can be heard and decisions rendered prior to March 5, True and accurate copies of said letter and grievance are attached hereto as Exhibit 9 and made a part hereof. 10

11 22. Plaintiff and Defendant met on February 6, 2007, to discuss the aforesaid three grievances. In that meeting, Defendant stated that it would agree to join Plaintiff in scheduling an arbitration in connection with the reduced-work-schedule grievances. However, Defendant refused to agree to cooperate with Plaintiff in expediting the arbitration proceedings so that a decision could be rendered prior to March 5, In the February 6, 2007, meeting, Michael Newman on behalf of Plaintiff requested that if Defendant was not willing to expedite arbitration proceedings so that a decision could be rendered prior to March 5, 2007, then, in the alternative, Defendant delay implementation of the reduced-work-schedule plan until an arbitration could be completed and a decision rendered. 24. In a letter dated February 9, 2007, from Jonathan Rothstein to Michael Newman, Defendant notified Plaintiff that it was denying the three reduced-work-schedule grievances and that Defendant would join Plaintiff in selecting an arbitrator to hear and decide this case in the shortest time reasonably achievable. However, Mr. Rothstein failed to agree to expediting arbitration proceedings so that a decision could be rendered prior to March 5, 2007, and stated, We are not willing to delay the implementation of this decision pending the outcome of the arbitration. As you are aware, the County is facing serious financial difficulties and part of the balancing of the budget for the Public Defender s Office currently depends on implementation of the work schedule changes on the dates set. A true and accurate copy of said letter is attached hereto as Exhibit 10 and made a part hereof. 25. Plaintiff in its grievances seeks a determination from an arbitrator as to whether Defendant violated the collective bargaining agreements by unilaterally implementing reduced work schedules effective March 5, 2007, and continuing through the remainder of

12 26. Plaintiff in its grievances seeks a determination from an arbitrator as to whether Defendant s action in requiring employees to take from one to two unpaid days off per week over a ten-month period violates the contractual hours-of-work provisions that establish the Assistant Public Defender positions as full-time positions and that establish the regular work weeks of support staff employees and Investigators as 40-hour work weeks. 27. Plaintiff in its grievances seeks a determination from an arbitrator as to whether Defendant s action in requiring employees to take from one to two unpaid days off per week over a ten-month period constitutes a series of temporary layoffs in violation of the contractual provisions requiring that layoffs shall be in inverse order of seniority, that layoffs shall be by position classification, and that employees subject to layoff have bumping rights to move to other positions in lieu of layoff. 28. Plaintiff in its grievances seeks a determination from an arbitrator as to whether Defendant s action in requiring employees to take from one to two unpaid days off per week over a ten-month period violates other provisions of the agreements, including the recognition provisions and the salary schedules. 29. In order for the arbitration in connection with such grievances to be meaningful, said arbitration must occur so that a decision may be rendered by the arbitrator prior to the implementation of the reduced-work-schedule plan. 30. Plaintiff s grievances are arbitrable under the collective bargaining agreements, and Plaintiff is likely to succeed on the merits of its grievances. 31. Plaintiff will suffer irreparable harm if Defendant is not restrained from implementing its reduced-work-schedule plan pending submission of the reduced-work-schedule grievances to 12

13 arbitration and the receipt of an arbitrator s award, and Plaintiff has no adequate remedy at law. Defendant has informed Plaintiff that the reduced work schedules are being implemented because Defendant is experiencing a severe budget crisis. Thus, if arbitration is not held until after the reduced-work-schedule plan is implemented, and Plaintiff succeeds on the merits of the grievances, it would be difficult for Plaintiff to win a make-whole order, which would involve paying each of 675 County employees for 53 days on which they did not work for the period from March 5, 2007 through the end of The approximate total monetary loss to employees represented by Plaintiff in the Office of the Public Defender from March 5, 2007, through December 31, 2007, as a result of the implementation of Defendant s reduced-work-schedule plan will be $9,016, Requiring Defendant to delay implementing the reduced-work-schedule plan pending receipt of an arbitrator s decision would not cause any undue burden on Defendant, since Plaintiff has offered to expedite the arbitration proceedings. WHEREFORE, Plaintiff seeks an order from this Court: A. Restraining Defendant from implementing its plan to require all Assistant Public Defenders, support staff employees and Investigators employed in Defendant s Office of the Public Defender and represented by AFSCME to work reduced schedules pending a decision by an arbitrator in connection with Plaintiff s grievances protesting the implementation of Defendant s reduced-work-schedule plan; and 13

14 B. Any other relief the Court deems just and proper. Respectfully submitted, CORNFIELD AND FELDMAN By: Melissa J. Auerbach Gilbert Feldman Attorneys for the Plaintiff Dated: February 13, 2007 CORNFIELD AND FELDMAN Suite East Washington Street Chicago, Illinois (312) (312) (fax) Atty No \ 14

15 STATE OF ILLINOIS ) ) SS. COUNTY OF C O O K ) VERIFICATION Under penalties as provided by law pursuant to Section of the Code of Civil Procedure, the undersigned, Michael Newman, certifies that he is Associate Director of the American Federation of State, County and Municipal Employees, Council 31, AFL-CIO, Plaintiff; that he has read the foregoing Verified Complaint for Injunctive Relief, and attached exhibits; that he has knowledge of the matters stated therein; and that the statements set forth therein are true and correct, except as to matters therein stated to be on information and belief, and as to such matters, the undersigned certifies as aforesaid that he verily believes the same to be true. Michael Newman

16 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CHANCERY DIVISION American Federation of State, County and Municipal ) Employees, Council 31, AFL-CIO, for and on behalf ) of AFSCME Locals 1767, 3315, and 3696, ) ) Case No. Plaintiff, ) ) Injunction / Temporary v. ) Restraining Order ` ) Board of Commissioners of Cook County, Illinois, ) ) Defendant. ) MOTION FOR TEMPORARY RESTRAINING ORDER OR, IN THE ALTERNATIVE, PRELIMINARY INJUNCTION NOW COMES the Plaintiff, American Federation of State, County and Municipal Employees, Council 31, AFL-CIO, for and on behalf of AFSCME Locals 1767, 3315 and 3696, by its attorneys, and moves that the Court enter a Temporary Restraining Order or, in the alternative, a Preliminary Injunction against Defendant, Board of Commissioners of Cook County, Illinois. In support of said Motion, Plaintiff states as follows: 1. Plaintiff and Defendant are parties to three collective bargaining agreements covering employees of the Office of the Public Defender of Cook County represented by Plaintiff. 2. Plaintiff, for and on behalf of AFSCME Local 3315, and Defendant are parties to a collective bargaining agreement covering Assistant Public Defenders employed in Defendant s

17 Office of the Public Defender. A true and accurate copy of the agreement effective December 1, 2001, through November 30, 2004, is attached to the Verified Complaint as Exhibit Plaintiff, for and on behalf of AFSCME Local 3696, and Defendant are parties to a collective bargaining agreement covering support staff employees employed in Defendant s Office of the Public Defender. A true and accurate copy of the agreement effective December 1, 2001, through November 30, 2004, is attached to the Verified Complaint as Exhibit Plaintiff, for and on behalf of AFSCME Local 1767, and Defendant are parties to a collective bargaining agreement covering Investigators employed in Defendant s Office of the Public Defender. A true and accurate copy of the agreement effective December 1, 2001, through November 30, 2004, is attached to the Verified Complaint as Exhibit On June 21, 2006, Plaintiff and Defendant reached agreement on the terms of successor agreements to the aforesaid three collective bargaining agreements. The successor agreements, which are effective from December 1, 2004, through November 30, 2008, have not yet been printed. 6. On July 11, 2006, Plaintiff notified Defendant that the agreements had been ratified. 7. On July 12, 2006, Defendant adopted Resolution No. 06-R-294, approving the general increases and salary adjustments negotiated by Plaintiff and Defendant for the agreements. A true and accurate copy of said Resolution is attached to the Verified Complaint as Exhibit 4.

18 8. The collective bargaining agreements contain grievance procedures culminating in final and binding arbitration. (Verified Complaint, Ex. 1, Art. XII, pp ; Ex. 2, Art. XI, pp ; Ex. 3, Art. XI, pp ) follows: 9. The Local 3315 agreement, covering Assistant Public Defenders, provides in part as ARTICLE III Hours of Work Section 1. Hours of Work: Hours of work for Assistant Public Defenders shall be commensurate with their professional responsibilities. The position is full-time and each Assistant Public Defender shall be available during regular operational hours. The parties recognize that the County has the authority, consistent with this Agreement, to ensure that employees fulfill the above responsibilities. Section 2. Secondary Employment Assistant Public Defenders are full-time employees and shall fulfill their responsibilities as are described in Section 1 above and Article II, Section 3 of this Agreement. Except in their capacity as Assistant Public Defenders, assistants shall not practice criminal law at any time, nor shall they represent clients in courts or administrative hearings. (Verified Complaint, Ex. 1, pp. 4-5.) ARTICLE IV Seniority Section 3. Reduction in Work Force, Layoff and Recall: Should the County determine that it is necessary to decrease the number of Assistant Public Defenders, the employees to be laid off shall be removed from it in inverse order of seniority with the Public Defender s Office

19 (Verified Complaint, Ex. 1, p. 6.) follows: 10. The Local 3696 agreement, covering support staff employees, provides in part as ARTICLE III HOURS OF WORK Section 1. Regular Work Periods: The regular work day for a full-time employee shall be 8 hours each day, to equal 40 hours in a work week. The work week will generally run Monday through Friday. Section 7. Docking Provision: All regular, full time employees must account for the requirednumber of hours in each workweek in order to receive the full salary and commensurate benefits. The accounting of the regular hours may be in the form of actual time worked and approved leave time, i.e., holidays and use of accrued vacation, personal, sick and compensatory time. (Verified Complaint, Ex. 2, pp. 4-6.) ARTICLE XIII FILLING OF VACANCIES Section 7. Reduction in Work Force: (Applies to Locals 1111, 1178, 1276, 3368, 3696 and Public Guardian Clericals). 19

20 Should it become necessary to decrease the number of employees within a job classification, the employees in the classification shall be removed from it in inverse order of seniority. The affected employees and the Union shall be given notice thereof at least thirty (30) days prior to the effective date. In the event there is an elimination of positions within any classification, the positions eliminated will be identified. An employee subject to layoff due to the elimination of his/her position shall be placed in the position of the least senior employee in that classification within the work location (Department- Locals 1111, 1276, 3696, Division-Local 1178, Unit-Local 3368, 1Public Guardian Clerical). The least senior employee displaced in the work location shall be placed in the position of the least senior employee in the classification in the bargaining unit. An employee may, in lieu of bumping to a position outside of the employee s work site, choose to be placed in vacant position in the next lower classification at his/her work site. The least senior employee displaced in the classification in the bargaining unit shall be offered the position of the least senior employee in the next lower classification in the classification series, first by work location, then by bargaining unit, in accordance with the seniority provisions of this Agreement. Employees who have previously served in another classification outside their classification series shall also be offered the right to displace the least senior employee in that classification, first within the work location, then the bargaining unit. (Verified Complaint, Ex. 2, p.27.) 11. The Local 1767 agreement, covering Investigators, provides in part as follows: 20

21 ARTICLE III HOURS OF WORK Section 1. Regular Work Periods: The workday shall commence from the employee s scheduled starting time. The normal workday shall be eight consecutive hours, including a lunch period. If an employee cannot report to work as scheduled, the employee must notify the supervisor/designee prior to scheduled reporting time. The time for notification shall be determined by management, but in no case shall exceed two (2) hours. A. For the Office of the Public Defender, the workweek shall begin at 12:00 midnight Sunday and end at 11:59 p.m. the following Saturday. The normal workweek consists of five consecutive workdays, Monday through Friday except those investigators assigned to Holiday Court and in other situations dictated by courts or clients needs. An employee will be docked for all time not worked during his/her regularly scheduled work day, subject to Section 7 of this Article. Section 7. Docking Provisions: All regular, full time employees must account for the required number of hours in each workweek in order to receive the full salary and commensurate benefits. The accounting of the regular hours may be in the form of actual time worked and approved leave time, i.e., holidays and use of accrued vacation, personal, sick and compensatory time. (Verified Complaint, Ex. 3, pp. 4-5.) ARTICLE XIII FILLING OF VACANCIES Section 4. Reduction in Work Force: Should it become necessary to decrease the number of employees within a job classification, the employees in the classification shall be removed from it in inverse order of seniority. The affected employees and the union shall be given notice thereof at least thirty (30) days 21

22 prior to the effective date. In the event there is an elimination of positions within any classification, the position eliminated will be identified. An employee subject to layoff due to the elimination of his/her position shall be placed in the position of the least senior employee in that classification with the work location. The least senior employee displaced in the work location shall be placed in the position of at least senior employee in the classification in the bargaining unit. However, a Local 1767 member in the Public Defender s Office, the Medical Examiner s Office or the Juvenile Temporary Detention Center may only bump a less senior employee in his or her respective office. An employee may, in lieu of bumping to a position outside of the employee s work site, choose to be placed in vacant position in the next lower classification at his/her work site. The least senior employee displaced in the classification in the bargaining unit shall be offered the position of the least senior employee in the next lower classification in the classification series, first by work location, then by bargaining unit, in accordance with the seniority provisions of this Agreement. Employees who have previously served in another classification outside their classification series shall also be offered the right to displace the least senior employee in that classification, first within the work location, then the bargaining unit. (Verified Complaint, Ex. 3, p. 27.) 12. The collective bargaining agreements contain the same grievancearbitration, hours-of-work and layoff provisions as are contained in the agreements. 13. Defendant currently employs approximately 480 Assistant Public Defenders, 125 support staff employees, and 70 Investigators in the Office of the Public Defender who are represented by Plaintiff and covered by the aforesaid collective bargaining agreements. 14. In a letter dated February 1, 2007, from Jonathan Rothstein, Special Assistant to the President of the Cook County Board of Commissioners, to Michael Newman, Associate Director of 22

23 AFSCME, the Defendant notified Plaintiff that because Cook County is facing a severe budget crisis the Defendant, effective March 5, 2007, will implement a reduced-work-schedule plan for all Assistant Public Defenders as follows: 1. Effective March 5, 2007, no workweek of any assistant public defender will exceed four (4) days, and ten (10) of the workweeks during the period between March 5, 2007 and the end of 2007 will not exceed three (3) days. 2. Effective March 5, 2007, the salary of each assistant public defender will be reduced proportionately to reflect the reduced workweeks. A true and accurate copy of said letter is attached to the Verified Complaint as Exhibit In a letter dated February 1, 2007, from Jonathan Rothstein to Monique Hodges, President of AFSCME Local 3696, Defendant notified Plaintiff that because Cook County is facing a severe budget crisis Defendant, effective March 5, 2007, will implement a reduced-work-schedule plan for all support staff employees employed in the Office of the Public Defender as follows: 1. Effective March 5, 2007, no workweek of any clerical employee represented by A.F.S.C.M.E. Local 3696 will exceed four (4) days, and ten (10) of the workweeks during the period between March 5, 2007 and the end of 2007 will not exceed three (3) days. 2. Effective March 5, 2007, the salary of each clerical employee represented by A.F.S.C.M.E. Local 3696 will be reduced proportionately to reflect the reduced workweeks. A true and accurate copy of said letter is attached to the Verified Complaint as Exhibit In a letter dated February 5, 2007, from Jonathan Rothstein to Noel Zupancic, President of AFSCME Local 1767, Defendant notified Plaintiff that because Cook County is facing 23

24 a severe budget crisis Defendant, effective March 5, 2007, will implement a reduced-work-schedule plan for all Investigators employed in the Office of the Public Defender as follows: 1. Effective March 5, 2007, no workweek of any investigator working for the Office of the Public Defender will exceed four (4) days, and ten (10) of the workweeks during the period between March 5, 2007 and the end of 2007 will not exceed three (3) days. 2. Effective March 5, 2007, the salary of each investigator working for the Office of the Public Defender will be reduced proportionately to reflect the reduced work weeks. A true and accurate copy of said letter is attached to the Verified Complaint as Exhibit On February 2, 2007, Plaintiff filed grievances protesting Defendant s unilateral implementation of a reduced-work-schedule plan with respect to the Assistant Public Defenders and the support staff employees in the Office of the Public Defender as violative of the applicable collective bargaining agreements. In a cover letter from Michael Newman to Jonathan Rothstein sent with the grievances, Plaintiff requested that the parties meet on February 5, 2007, in an attempt to resolve the grievances and that if they were not resolved at such meeting the grievances be scheduled for immediate arbitration in order that a decision on the grievances could be rendered prior to March 5, Specifically, Plaintiff stated that: Given the immediacy of the situation, the high degree of potential County liability, and the County s severe fiscal crisis, the Union is requesting that the parties meet no later than Monday, February 5. Should the parties be unable to resolve the grievances at that meeting, the Union requests that the grievances be scheduled for immediate arbitration. For purposes of expediency and efficiency, we are proposing that the grievances be combined for the purpose of hearing before an arbitrator. Our staff will work with you to clear our calendars to find 24

25 an appropriate date so that the grievances can be heard and decisions rendered prior to March 5, True and accurate copies of said letter and grievances are attached to the Verified Complaint as Exhibit On February 6, 2007, Plaintiff filed a grievance protesting Defendant s unilateral implementation of a reduced-work-schedule plan with respect to the Investigators in the Office of the Public Defender as violative of the applicable collective bargaining agreement. In a cover letter from Michael Newman to Jonathan Rothstein sent with the grievance, Plaintiff requested that the parties attempt to resolve the grievance at a meeting scheduled for that day and that if it was not resolved at such meeting the grievance, together with the two previously filed grievances, be scheduled for immediate arbitration in order that a decision on the grievances could be rendered prior to March 5, Specifically, Plaintiff stated that: Given the immediacy of the situation, the high degree of potential County liability, and the County s severe fiscal crisis, the Union is requesting that the parties attempt to resolve this grievance, along with those previously filed on behalf of Locals 3315 and 3696, at the meeting scheduled for this afternoon. Should the parties be unable to resolve the grievances at that meeting, the Union requests that the grievances be scheduled for immediate arbitration. For purposes of expediency and efficiency, we are proposing that the grievances be combined for the purpose of hearing before an arbitrator. Our staff will work with you to clear our calendars to find an appropriate date so that the grievances can be heard and decisions rendered prior to March 5, True and accurate copies of said letter and grievance are attached to the Verified Complaint as Exhibit 9. 25

26 19. Plaintiff and Defendant met on February 6, 2007, to discuss the aforesaid three grievances. In that meeting, Defendant stated that it would agree to join Plaintiff in scheduling an arbitration in connection with the reduced-work-schedule grievances. However, Defendant refused to agree to cooperate with Plaintiff in expediting the arbitration proceedings so that a decision could be rendered prior to March 5, In the February 6, 2007, meeting, Michael Newman on behalf of Plaintiff requested that if Defendant was not willing to expedite arbitration proceedings so that a decision could be rendered prior to March 5, 2007, then, in the alternative, Defendant delay implementation of the reduced-work-schedule plan until an arbitration could be completed and a decision rendered. 21. In a letter dated February 9, 2007, from Jonathan Rothstein to Michael Newman, Defendant notified Plaintiff that it was denying the three reduced-work-schedule grievances and that Defendant would join Plaintiff in selecting an arbitrator to hear and decide this case in the shortest time reasonably achievable. However, Mr. Rothstein failed to agree to expediting arbitration proceedings so that a decision could be rendered prior to March 5, 2007, and stated, We are not willing to delay the implementation of this decision pending the outcome of the arbitration. As you are aware, the County is facing serious financial difficulties and part of the balancing of the budget for the Public Defender s Office currently depends on implementation of the work schedule changes on the dates set. A true and accurate copy of said letter is attached to the Verified Complaint as Exhibit Plaintiff in its grievances seeks a determination from an arbitrator as to whether Defendant violated the collective bargaining agreements by unilaterally implementing reduced work schedules effective March 5, 2007, and continuing through the remainder of

27 23. Plaintiff in its grievances seeks a determination from an arbitrator as to whether Defendant s action in requiring employees to take from one to two unpaid days off per week over a ten-month period violates the contractual hours-of-work provisions that establish the Assistant Public Defender positions as full-time positions and that establish the regular work weeks of support staff employees and Investigators as 40-hour work weeks. 24. Plaintiff in its grievances seeks a determination from an arbitrator as to whether Defendant s action in requiring employees to take from one to two unpaid days off per week over a ten-month period constitutes a series of temporary layoffs in violation of the contractual provisions requiring that layoffs shall be in inverse order of seniority, that layoffs shall be by position classification, and that employees subject to layoff have bumping rights to move to other positions in lieu of layoff. 25. Plaintiff in its grievances seeks a determination from an arbitrator as to whether Defendant s action in requiring employees to take from one to two unpaid days off per week over a ten-month period violates other provisions of the agreements, including the recognition provisions and the salary schedules. 26. The reduced-work-schedule plan would require each of 675 employees represented by Plaintiff in Defendant s Office of the Public Defender to take 53 unpaid days off of work from March 5, 2007 through the end of The approximate total monetary loss to employees represented by Plaintiff in the Office of the Public Defender from March 5, 2007 through December 31, 2007 as a result of the implementation of Defendant s reduced-work-schedule plan will be $9,016,

28 27. The Court has jurisdiction to issue an injunction in aid of arbitration. AFSCME v. Schwartz, 343 Ill. App. 3d 553, 560 (5 th Dist. 2003). In AFSCME v. Schwartz, the Appellate Court found that an injunction against an employer is permitted when the injunction is necessary to maintain the status quo in order to protect the integrity of the arbitral process. 343 Ill. App. 3d at 561. An injunction in aid of arbitration is appropriate when: (1) the underlying grievance is one that the parties are contractually bound to arbitrate and (2) one of the traditional bases for equitable injunctive relief exists: (a) the employer s breach of the collective bargaining agreement is of an ongoing nature, (b) the union will suffer irreparable harm from the employer s breach, or (c) the union will suffer more from the denial of the injunction than the employer will from its issuance. AFSCME v. Schwartz, 343 Ill. App. 3d at 561, citing Aluminum Workers International Union v. Consolidated Aluminum Corp., 696 F. 2d 437, 442 (6 th Cir. 1982). 28. In the context of a temporary restraining order or preliminary injunction in aid of arbitration, a plaintiff, in order to establish a likelihood of success on the merits, need only establish that the position he will espouse in arbitration is sufficiently sound to prevent the arbitration from being a futile endeavor. AFSCME v. Schwartz, 343 Ill. App. 3d at 564, quoting International Ass n of Machinists & Aerospace Workers v. Panoramic Corp., 668 F. 2d 276, (7 th Cir. 1981) and Lever Brothers Co. v. International Chemical Workers Union, Local 217, 554 F. 2d 115, 120 (4 th Cir. 1976) and citing Nursing Home & Hospital Union No. 434, AFL-CIO-LDIU v. Sky Vue Terrace, Inc., 759 F. 2d 1094, 1098, n. 3 (3d Cir. 1985). The union is not required to establish that it will necessarily succeed on the merits of its grievance before the arbitrator, as holding the union to such a strict standard of proof would intrude significantly on the arbitrator s function and result in [a] type of judicial preemption of the arbitral process. AFSCME v. 28

29 Schwartz, 343 Ill. App. 3d at 564, quoting Nursing Home & Hospital Union No. 434, 759 F. 2d at 1098, n. 3 and citing Panoramic Corp., 668 F. 2d at 284. Thus, if there is a genuine dispute with respect to an arbitrable issue and if the union s position is not frivolous, then the union has established that there is a likelihood of success on the merits for purposes of the issuance of an injunction. AFSCME v. Schwartz, 343 Ill. App. 3d at 564, quoting Panoramic Corp. 668 F. 2d at 285 and citing Oil, Chemical & Atomic Workers International Union v. Amoco Oil Co., 885 F. 2d 697, (10 th Cir. 1989). 29. In AFSCME v. Schwartz, the Appellate Court affirmed a circuit court order entering a preliminary injunction in aid of arbitration enjoining the State of Illinois from implementing a oneday furlough plan that would require 44,000 bargaining unit employees statewide to take a day off without pay and also enjoining a permanent layoff plan in seven State agencies pending a decision by an arbitrator in connection with the union s grievance challenging the furlough and layoff plans as violative of the collective bargaining agreement between the union and the State. 343 Ill. App. 3d at In this case, the grievances are arbitrable under the collective bargaining agreements between Plaintiff and Defendant. 31. In this case, Defendant s breach of the collective bargaining agreements will be of an ongoing nature. Defendant has informed Plaintiff that the reduced-work-schedule plan it intends to implement effective March 5, 2007 will continue through the end of In this case, Plaintiff would suffer irreparable harm without an injunction. Defendant has informed Plaintiff that the reduced work schedules are being implemented because Defendant is experiencing a severe budget crisis. Thus, if arbitration is not held until after the reduced work 29

30 schedule plan is implemented, and Plaintiff succeeds on the merits of the grievances, it would be difficult for Plaintiff to win a make-whole order, which would involve paying each of 675 County employees for 53 days on which they did not work for the period from March 5, 2007 through the end of The approximate total monetary loss to employees represented by Plaintiff in the Office of the Public Defender from March 5, 2007 through December 31, 2007 as a result of the implementation of Defendant s reduced work schedule plan will be $9,016, In this case, Plaintiff would suffer more harm from the denial of the injunction than Defendant would suffer from its issuance. Indeed, prior to filing this action, Plaintiff requested Defendant to proceed to immediate arbitration and offered to cooperate with Defendant in connection with scheduling such arbitration so that an arbitrator s decision could be received by the parties prior to the March 5, 2007 date set by Defendant for the implementation of its reduced-workschedule plan. Defendant refused to attempt to expedite the arbitration proceedings so that a decision could be received prior to March 5, Requiring Defendant to delay implementation of the reduced work-schedule-plan pending an arbitrator s decision would serve the public interest by relieving the Defendant, which in its own words is experiencing a severe budget crisis, from being liable to pay each of 675 County employees for 53 days on which they did not work and, therefore, performed no public services. Requiring Defendant to delay implementation of the reduced-work-schedule plan pending an arbitrator s decision would also serve the public interest by preventing unnecessary interference with the management by the court system of criminal cases that might result from employees of the Office of the Public Defender being unable to work on all days that the courts are in session. 30

31 WHEREFORE, Plaintiff prays that the Court enter a temporary restraining order or, in the alternative, a preliminary injunction restraining Defendant from implementing its reduced-workschedule plan that would require all of Plaintiff s bargaining unit employees in Defendant s Office of the Public Defender to take two unpaid days off of work for ten weeks and to take one unpaid day off from work for the remaining weeks from March 5, 2007 through the end of 2007 pending a decision by an arbitrator in connection with Plaintiff s reduced-work-schedule grievances. Respectfully submitted, Dated: February 13, 2007 CORNFIELD AND FELDMAN Atty No CORNFIELD AND FELDMAN Suite 1400 By: 25 East Washington Street Melissa J. Auerbach Chicago, Illinois Gilbert Feldman (312) (312) (fax) Attorneys for the Plaintiff 31