{ "id": 4267194, "name": "NILES TOWNSHIP HIGH SCHOOL DISTRICT 219, Cook County, Illinois, Petitioner-Appellant, v. ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD et al., Respondents-Appellees", "name_abbreviation": "Niles Township High School District 219 v. Illinois Educational Labor Relations Board", "decision_date": "2006-11-13", "docket_number": "No. 1\u201405\u20142323", "first_page": "128", "last_page": "143", "citations": [ { "type": "official", "cite": "369 Ill. App. 3d 128" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "518 N.E.2d 713", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "pin_cites": [ { "parenthetical": "\"[T]he section 2(n" } ], "opinion_index": 0 }, { "cite": "165 Ill. App. 3d 41", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3614210 ], "year": 1987, "pin_cites": [ { "page": "60", "parenthetical": "\"[T]he section 2(n" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/165/0041-01" ] }, { "cite": "153 Ill. 2d 508", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4738696 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "523" }, { "page": "523" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/153/0508-01" ] }, { "cite": "848 N.E.2d 118", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2006, "pin_cites": [ { "parenthetical": "CMS" } ], "opinion_index": 0 }, { "cite": "364 Ill. App. 3d 1028", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4263252 ], "weight": 8, "year": 2006, "pin_cites": [ { "parenthetical": "CMS" }, { "page": "1033" }, { "page": "1033-34" }, { "page": "1034" }, { "page": "1035-36" }, { "page": "1036" }, { "page": "1036" }, { "page": "1036" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/364/1028-01" ] }, { "cite": "625 N.E.2d 733", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "252 Ill. App. 3d 932", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2965400 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/ill-app-3d/252/0932-01" ] }, { "cite": "730 N.E.2d 102", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "313 Ill. App. 3d 619", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 186462 ], "year": 2000, "pin_cites": [ { "page": "626" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/313/0619-01" ] }, { "cite": "729 N.E.2d 75", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "parenthetical": "\"By its very nature, a sua sponte ruling deprives a party of notice and an opportunity to raise objections because the court acts on its own and without any warning\"" } ], "opinion_index": 0 }, { "cite": "313 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 186551 ], "year": 2000, "pin_cites": [ { "page": "13", "parenthetical": "\"By its very nature, a sua sponte ruling deprives a party of notice and an opportunity to raise objections because the court acts on its own and without any warning\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/313/0001-01" ] }, { "cite": "366 Ill. App. 3d 830", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4264060 ], "year": 2006, "pin_cites": [ { "page": "833" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/366/0830-01" ] }, { "cite": "28 Ill. Reg. 7938", "category": "laws:admin_register", "reporter": "Ill. Reg.", "pin_cites": [ { "parenthetical": "eff. May 28, 2004" } ], "opinion_index": 0 }, { "cite": "803 N.E.2d 541", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "346 Ill. App. 3d 51", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3832785 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "62" }, { "page": "63", "parenthetical": "trial court's dismissal of the plaintiffs complaint violated procedural due process where the plaintiff also asserted the discovery rule tolled the statute of limitations, and the court did not address the applicability of the discovery rule" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/346/0051-01" ] }, { "cite": "673 N.E.2d 1084", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "285 Ill. App. 3d 507", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1295610 ], "weight": 6, "year": 1996, "pin_cites": [ { "page": "515" }, { "page": "517", "parenthetical": "the union was \"deprived of the opportunity to put forth evidence supporting a section 14(a)(3" }, { "page": "515" }, { "page": "515" }, { "page": "515" }, { "page": "515-16" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/285/0507-01" ] }, { "cite": "758 N.E.2d 382", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "325 Ill. App. 3d 780", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 570735 ], "year": 2001, "pin_cites": [ { "page": "786" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/325/0780-01" ] }, { "cite": "777 N.E.2d 648", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "333 Ill. App. 3d 1036", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 486833 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "1041" }, { "page": "1041" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/333/1036-01" ] }, { "cite": "254 NLRB 168", "category": "reporters:federal", "reporter": "N.L.R.B.", "weight": 2, "year": 1981, "pin_cites": [ { "page": "169" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1148, "char_count": 40483, "ocr_confidence": 0.765, "pagerank": { "raw": 1.0813924085515712e-07, "percentile": 0.5625862743349129 }, "sha256": "199828a69ac209a28324c9f9a8a6843b7bd724c54d5189d8511d1d323455ddd9", "simhash": "1:9272f510672c438c", "word_count": 6345 }, "last_updated": "2023-07-14T20:04:07.948493+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "NILES TOWNSHIP HIGH SCHOOL DISTRICT 219, Cook County, Illinois, Petitioner-Appellant, v. ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD et al., Respondents-Appellees." ], "opinions": [ { "text": "JUSTICE ROBERT E. GORDON\ndelivered the opinion of the court:\nIn May 2003, petitioner Niles Township High School District 219 (District) filed a unit clarification petition with respondent Illinois Educational Labor Relations Board (IELRB) seeking clarification of a bargaining unit represented by respondent Niles Township Support Staff, Local 1274, IFT-AFT, AFL-CIO (Union.) This bargaining unit of the District\u2019s employees included all secretaries and clerical workers, custodial and maintenance employees and pupil security employees whose positions required 600 hours or more of work during the fiscal school year. Among the classifications of employees excluded from this bargaining unit, and from all bargaining units under the Illinois Educational Labor Relations Act (Act) (115 ILCS 5/2(b) (West 2004)), were \u201cconfidential employees\u201d as defined in section 2(n) of the Act (115 ILCS 5/2(n) (West 2004)). In its petition and accompanying position statement, the District sought the removal of three technology positions (Systems and Networking Coordinator, Programmer Analyst, and WWW Communications Technician) from the bargaining unit because, in the District\u2019s view, the employees filling these positions were confidential employees. In October 2004, an administrative law judge (ALJ) issued a decision and order (without an evidentiary hearing) recommending that the District\u2019s petition be dismissed. According to the ALJ, the District\u2019s petition was untimely filed and the employees in question were not confidential employees. In the ALJ\u2019s view, \u201cthe unit clarification procedure was not the appropriate vehicle to remove the petitioned-for titles from the existing bargaining unit.\u201d In June 2005, the IELRB issued an opinion and order (also without an evidentiary hearing) affirming the ALJ\u2019s recommended decision and order. The IELRB agreed with the ALJ that the District\u2019s petition was untimely and that the unit clarification procedure was not appropriately employed in this instance. The District appeals directly to this court (115 ILCS 5/16(a) (West 2004)) from the IELRB\u2019s opinion and order.\nBACKGROUND\nThe District filed its unit clarification petition and supporting documents on May 30, 2003. According to the District\u2019s position statement, the employees who filled the three positions in question, together with certain supervisors and managers who were already excluded from the bargaining unit, had responsibility for maintaining and operating the District\u2019s computer network. These Information Systems (IS) employees were the administrators of the computer network and, as such, had unlimited access to employees\u2019 workstations and files stored on the network. The District further alleged that its top-level administrators, including the District\u2019s superintendent, business manager, and assistant superintendent for human resources, all stored collective bargaining information on the computer network. This information included District bargaining positions and proposals that had not previously been disclosed to the Union. The District argued that, if the IS employees in question were allowed to remain in the bargaining unit, this would create \u201can unreasonable risk that the [District\u2019s] collective bargaining policies and positions will be prematurely disclosed to the [Union].\u201d The District contended that these employees were confidential employees within the meaning of the Act and should therefore be removed from the Union\u2019s bargaining unit.\nIn support of this position, the District pointed to Woodland Community Unit School District 5, 16 Pub. Employee Rep. (Ill.) par. 1026, No. 992\u2014UC\u20140005\u20142 (IELRB February 1, 2000) (hereinafter 16 Pub. Employee Rep. (Ill.) par. 1026). In Woodland, an ALJ concluded that the school district\u2019s technology coordinator position was confidential within the meaning of the Act \u201cbecause the employee has access to confidential information relating to the District\u2019s collective bargaining policies.\u201d Woodland, 16 Pub. Employee Rep. (Ill.) par. 1026. The IELRB in Woodland affirmed the ALJ\u2019s decision.\nEleven months after the District\u2019s petition was filed in the case at bar, the ALJ issued an order requiring the District to show cause why its petition should not be dismissed. According to the ALJ, the District\u2019s unit clarification petition was \u201cnot the appropriate vehicle\u201d by which to remove the job classifications at issue from the bargaining unit. The ALJ\u2019s order, which was issued on April 30, 2004, stated that unit clarification petitions are appropriate only in three narrow circumstances: (1) there is a newly created job classification entailing job functions that are similar to those of classifications covered by the existing bargaining unit; (2) the job functions of an existing classification have been altered substantially since the unit was certified, creating genuine doubt as to whether the classification should remain in, or be excluded from, the existing unit; or (3) there has been a change in statutory or case law that affects the bargaining rights of employees. In the ALJ\u2019s view, the job classifications at issue were not newly created, nor had the functions of these classifications been substantially altered since the unit was certified \u201csome time prior to 1999.\u201d With regard to the third circumstance, the ALJ stated: \u201cThe statutory and case law governing the bargaining rights of the petitioned-for employees has not changed insofar as is relevant herein.\u201d\nIn its response to this order, the District argued that, contrary to the ALJ\u2019s conclusions, both the second and third circumstances applied in this case. According to the District, the job functions of the classifications in question were changed in May 2001 when the District adopted a new computer-use policy that allowed IS employees \u201cto monitor and investigate the use of the District\u2019s computers and electronic network by its employees.\u201d The District noted that the Union had challenged the enforcement of some of the policy\u2019s new provisions, but the parties had settled the matter, and the District continued (through the IS employees) to routinely monitor network and workstation use and to investigate employees when necessary. In the District\u2019s view, these changes in the computer-use policy \u201csubstantially altered\u201d the job classifications in question. The District also argued that the IELRB\u2019s 2000 decision in Woodland constituted a change in relevant case law that occurred after the bargaining unit was certified.\nOn October 15, 2004, the ALJ issued a recommended decision and order concluding, sua sponte, that the District\u2019s petition was untimely filed. This order also asserted, as had the show-cause order, that the District\u2019s unit clarification petition \u201cwas not the appropriate vehicle to remove the petitioned-for titles from the existing bargaining unit.\u201d The ALJ recommended that the District\u2019s petition be dismissed \u201cin its entirety.\u201d In support of the untimeliness finding, the ALJ noted that the alleged substantial alteration in the IS employees\u2019 job functions took place in May 2001, when the District adopted a new computer-use policy, but the District did not file its unit clarification petition until May 30, 2003, \u201cover 24 months later.\u201d The ALJ stated: \u201cIt is axiomatic that a party waives its right to use of the unit clarification petition when it fails to do so in a timely fashion.\u201d The ALJ came to a similar conclusion with regard to the alleged change in relevant case law. The ALJ noted that Woodland, on which the District relied, was decided in February 2000, more than three years before the District\u2019s petition was filed. Accordingly, the District\u2019s petition was \u201cuntimely under the change in law exception as well.\u201d\nIn its response to the recommended decision and order, the District took exception to the ALJ\u2019s assertion that the relevant changes in the IS employees\u2019 duties took place in May 2001, when the District adopted its new computer-use policy. The District also disagreed with the ALJ\u2019s finding that the petition was untimely. In the District\u2019s view, this untimeliness issue was raised by the ALJ sua sponte.\nThe District noted that, as was stated in its response to the ALJ\u2019s show-cause order, the Union challenged the enforcement of some of the computer-use policy\u2019s new provisions, and the parties subsequently bargained and settled their issues. An agreement allegedly was reached on or around December 2002, and ratification by the District\u2019s board of education took place on January 6, 2003. According to the District, the IS employees\u2019 duties changed after January 6, 2003. The District alleged that, prior to this point, it had agreed \u201cnot to hold any employee liable for damages related to use of the [District\u2019s] computers and/or computer network.\u201d However, after January 6, 2003, the \u201cIS employees began to actively enforce the [computer-use policy] with disciplinary consequences, and the role of the IS employees changed from occasionally being directed by management to look into certain problems already identified by management, to actively and independently searching for and investigating infractions and aiding and assisting the school administration in disciplining employees.\u201d In the District\u2019s view, the IS employees\u2019 duties changed after January 6, 2003. The District noted that its petition was filed on May 30, 2003, less than five months later. The District argued that its petition was not untimely filed.\nOn June 16, 2005, the IELRB issued its opinion and order affirming the recommended decision and order of the ALJ. No evidentiary hearing was conducted. The District\u2019s petition was dismissed. The IELRB initially noted that the District, in its response to the ALJ\u2019s recommended decision and order, had included additional facts that were not available to the ALJ. These facts formed the support for the District\u2019s assertion that the IS employees\u2019 duties had changed after January 6, 2003. The IELRB refused to consider these facts because they were not presented during the investigation of the case or to the ALJ.\nThe IELRB agreed with the ALJ that the District\u2019s petition was untimely filed. With regard to the alleged substantial alteration in the IS employees\u2019 duties, the IELRB noted, as did the ALJ, that this change occurred in May 2001, two years prior to the filing of the District\u2019s unit clarification petition. The IELRB also noted that the only arguably relevant change in statutory or case law came in Woodland, which was decided more than three years before the District filed its petition. The IELRB then identified an additional circumstance in which a unit clarification petition is appropriate, over and above the three circumstances identified by the ALJ. These three former circumstances all involved change of one type or another, but the additional circumstance identified by the IELRB dealt with the removal from a bargaining unit of a statutorily excluded employee whose job duties had not changed. In the IELRB\u2019s view, this is what the District was attempting to do in the case at bar. However, the IELRB concluded that, in this instance as well, the District\u2019s petition was untimely filed. In reaching this conclusion, the IELRB announced a new rule: \u201c[Ujnit clarification petitions seeking to exclude allegedly statutorily excluded employees from a bargaining unit must be filed within a reasonable period of time after the unit begins to include allegedly statutorily excluded employees.\u201d\nThe establishment of this new rule required the IELRB to overrule one of its previous decisions, Community High School District No. 218, 2 Pub. Employee Rep. (Ill.) par. 1087 No. 84\u2014UC\u201400011\u2014C (IELRB June 24, 1986) (hereinafter 2 Pub. Employee Rep. (Ill.) par. 1087). In District No. 218, as the IELRB noted in its opinion in the case at bar, the unit clarification procedure was used to remove certain individuals from a bargaining unit in which they had long been included. The IELRB in District No. 218 stated: \u201cThe Act requires the exclusion of confidential employees regardless of their prior inclusion in a bargaining unit.\u201d District No. 218, 2 Pub. Employee Rep. (Ill.) par. 1087. District No. 218 also quoted from Washington Post Co., 254 NLRB 168 (1981), which stated:\n\u201c 1 While it may be that certain of the positions sought to be excluded by a unit clarification petition have long been included under previous contracts, and the job duties of those positions have remained unchanged, nonetheless, if it can be shown that the persons in such positions meet the test for establishing supervisory, managerial or confidential status, we are compelled to exclude them.\u2019 \u201d District No. 218, 2 Pub. Employee Rep. (Ill.) par. 1087, quoting Washington Post Co., 254 NLRB at 169.\nThe IELRB in the case at bar decided to \u201crevisit\u201d District No. 218 based on \u201cpolicy considerations.\u201d The IELRB noted the Act\u2019s statutory policy of promoting stability in collective bargaining relationships and concluded that, if District No. 218 were followed and petitions seeking to remove allegedly statutorily excluded employees from a bargaining unit were allowed to be filed at any time, this would be inconsistent with this policy. According to the IELRB, such a permissive practice would allow relationships between educational employees and their employers to be disrupted at any time and would undermine the collective bargaining process. The IELRB concluded, on the other hand, that if a time limit were set on the filing of such petitions, this would promote \u201c \u2018orderly and constructive relationships\u2019 between educational employees and their employers and [would] effectively resolve disputes over the unit placement of the allegedly statutorily excluded employees.\u201d\nApplying its newly established time limit in the case at bar, the IELRB asserted that the bargaining unit began to include allegedly statutorily excluded employees in May 2001, \u201cwhen the District adopted provisions in its computer use policy that allowed the employees at issue to monitor and investigate the use of the District\u2019s computers and computer network by its employees.\u201d However, the District did not file its unit clarification petition until two years later. According to the IELRB, \u201c[t]his was not within a reasonable period of time after the unit began to include allegedly statutorily excluded employees.\u201d\nThe IELRB concluded its opinion and order by stating:\n\u201cAnalyzed under any of the circumstances in which the unit clarification process is appropriate, the District\u2019s unit clarification petition was not timely filed. We conclude that the unit clarification procedure was not appropriately employed.\u201d\nThis appeal followed.\nANALYSIS\n\u201cAn administrative agency\u2019s findings on questions of fact are deemed to be prima facie true and correct and will not be reversed unless they are against the manifest weight of the evidence.\u201d One Equal Voice v. Illinois Educational Labor Relations Board, 333 Ill. App. 3d 1036, 1041, 777 N.E.2d 648 (2002). \u201c[A] reviewing court may not interfere with the discretionary authority vested in an administrative body unless that authority is exercised in an arbitrary or capricious manner or the administrative decision is against the manifest weight of the evidence.\u201d La Salle National Bank v. City Suites, Inc., 325 Ill. App. 3d 780, 786, 758 N.E.2d 382 (2001). \u201cThe agency\u2019s determination on purely legal questions is reviewed de novo and is not binding on a reviewing court.\u201d One Equal Voice, 333 Ill. App. 3d at 1041.\nI. ALJ\u2019s Untimeliness Ruling\nBefore this court, the District first argues that the IELRB\u2019s refusal to consider the additional evidence it submitted in its exceptions in response to the ALJ\u2019s sua sponte arguments in his recommended decision was contrary to law. Our review of this issue is de novo.\nThe District argues that it was not given notice of, nor an opportunity to defend and argue the issue of, the timeliness of its petition, since the ALJ did not pose this issue in its rule to show cause order, but instead raised only the question whether its petition was an \u201cappropriate vehicle\u201d to exclude the IS employees. The District further argues that it was prejudiced by the IELRB\u2019s refusal to consider the additional facts, and the ALJ\u2019s sua sponte untimeliness ruling resulted in \u201ca miscarriage of justice.\u201d\nNeither the Union nor the IELRB responds to the District\u2019s argument that the ALT sua sponte ruled that its petition was untimely and failed to give it notice and an opportunity to be heard. Instead, they take the position, pursuant to the \u201cwaiver rule,\u201d that the ALJ properly refused to consider the District\u2019s additional facts submitted in its exceptions.\n\u201cAdministrative proceedings are governed by fundamental principles and requirements of due process of law. [Citation.] \u2018An Illinois court has a duty, under the Administrative Review Act, to ensure that due process was afforded in the administrative hearing.\u2019 [Citation.]\u201d General Service Employees Union, Local 73 v. Illinois Educational Labor Relations Board, 285 Ill. App. 3d 507, 515, 673 N.E.2d 1084 (1996). \u201cDue process of law requires that a party be accorded procedural fairness, i.e., given notice and an opportunity to be heard.\u201d Gredell v. Wyeth Laboratories, Inc., 346 Ill. App. 3d 51, 62, 803 N.E.2d 541 (2004).\nIn the case at bar, we first note that, pursuant to section 1110.160(c) of the IELRB\u2019s rules and regulations, where a unit clarification petition \u201cpresents unresolved questions of material fact, the Executive Director shall set it for a hearing.\u201d 80 Ill. Adm. Code \u00a71110.160(c), as amended by 28 Ill. Reg. 7938 (eff. May 28, 2004); Support Council of District 39, Wilmette Local 1274 v. Educational Labor Relations Board, 366 Ill. App. 3d 830, 833 (2006). Apparently, the ALJ issued his rule to show cause order because he found there was a question of material fact regarding the timeliness of the District\u2019s petition, i.e., the date when the IS employees\u2019 job duties changed. Unfortunately, the ALJ failed to communicate this \u201cquestion\u201d in his order and, rather, only communicated the question of whether the petition was an \u201cappropriate vehicle.\u201d Instead of issuing a rule to show cause order, the ALJ should have set an evidentiary hearing date on the petition pursuant to section 1110.160(c), since an unresolved question of material fact existed. We find that the ALJ\u2019s failure to do so ultimately resulted in a violation of the District\u2019s procedural due process rights.\nMore specifically, in his rule to show cause order, the ALJ directed the District to show cause why its petition should not be dismissed, based solely on the issue of whether the petition was an \u201cappropriate vehicle\u201d to remove the positions in question from the existing unit. According to the ALJ\u2019s order, a unit clarification petition is an appropriate vehicle if it pertains to a newly created job classification, an existing classification in which an employee\u2019s job functions have been substantially altered since certification, or a change in statutory or case law. The District responded that it was an appropriate vehicle. Without a hearing, the ALJ subsequently issued its recommended decision, ruling, inter alia, that \u201cthe cited alteration as the basis for the [District\u2019s] petition renders it untimely,\u201d using May 2001 as the date of change in the IS employees\u2019 job duties.\nClearly, the District had no notice that the ALJ was contemplating dismissal of its petition on an untimeliness basis and the District had no opportunity to be heard or make arguments as to the issue. That this untimeliness was in fact a separate issue, not identified in the ALJ\u2019s rule to show cause order, is readily apparent from the IELRB\u2019s later recognition of the timeliness of the petition as a \u201cseparate\u201d issue from the issue of whether the petition was an \u201cappropriate vehicle,\u201d which was the sole question identified by the ALJ in its rule to show cause order. See Gredell, 346 Ill. App. 3d at 63 (trial court\u2019s dismissal of the plaintiffs complaint violated procedural due process where the plaintiff also asserted the discovery rule tolled the statute of limitations, and the court did not address the applicability of the discovery rule); Peterson v. Randhava, 313 Ill. App. 3d 1, 13, 729 N.E.2d 75 (2000) (\u201cBy its very nature, a sua sponte ruling deprives a party of notice and an opportunity to raise objections because the court acts on its own and without any warning\u201d).\nThereafter, the IELRB refused to consider the additional facts the District submitted in its exceptions regarding the date the IS employees\u2019 job duties were substantially altered, based on the IELRB\u2019s determination that these facts had not been presented in the investigation or to the ALJ and, therefore, in effect, were waived. As a result, we find that the IELRB\u2019s determination, that these additional facts were waived, was a continuation of the deprivation of the District\u2019s procedural due process rights, since the additional facts submitted by the District were in response to the ALJ\u2019s improper sua sponte untimeliness ruling and clearly could have been presented at an evidentiary hearing on the petition, had the ALJ properly conducted one. Cf General Service Employees Union, 285 Ill. App. 3d at 517 (the union was \u201cdeprived of the opportunity to put forth evidence supporting a section 14(a)(3) violation [discriminatory discharge claim] because the executive director precluded the Union from alleging such a violation,\u201d and the IELRB then \u201cproceeded to evaluate the Union\u2019s case based upon a section 14(a)(3) analysis\u201d).\nIn light of our disposition on this issue, we reject the Union\u2019s and the IELRB\u2019s waiver arguments. Moreover, \u201cthe waiver doctrine operates as a limitation on the parties, not on the courts.\u201d Mellon v. Coffelt, 313 Ill. App. 3d 619, 626, 730 N.E.2d 102 (2000).\nWe reverse and remand this cause for an evidentiary hearing, with directions that the IELRB consider the additional facts submitted in the District\u2019s exceptions. Since we are reversing and remanding, it is unnecessary to address (1) the issue of whether the IELRB\u2019s decision regarding whether the IS employees should be excluded as confidential employees within the meaning of sections 2(n)(i) and 2(n)(ii) of the Act was correct, and (2) the District\u2019s argument that the IELRB\u2019s ruling that the IS employees\u2019 job duties had not been substantially changed based on the May 2001 date was erroneous. Both of these rulings must be reexamined by the IELRB on remand based upon a consideration of the additional facts submitted by the District in its exceptions.\nII. IELRB\u2019s Overruling of District No. 218 \u2014 Untimeliness Ruling\nThe District also argues that this court should reverse the IELRB\u2019s decision overruling District No. 218 because to let it stand would, in fact, contravene the very \u201cimportant policy considerations\u201d upon which the IELRB relied in stating that its decision was \u201crational\u201d and \u201cnot unprecedented.\u201d More specifically, the District argues that setting a reasonable time limit in which a unit clarification petition must be filed to exclude statutorily excluded employees would not achieve unit stability, would not \u201cprevent employees from having divided loyalties between Union and management,\u201d and would not maintain an equal playing field for bargaining negotiations. The District maintains that the IELRB\u2019s overruling of District No. 218 will mean that union members who are confidential employees within the meaning of section 2(n) of the Act will have advance knowledge of management\u2019s confidential labor relations strategies, documentation and other information during the collective bargaining process. In the District\u2019s view, this would not promote bargaining unit stability.\nThe Union does not respond to the District\u2019s argument in its brief. The IELRB argues that it was correct in setting a reasonable time limit for filing a unit clarification petition regarding statutorily excluded employees. The IELRB maintains that if this court concludes that there should be no deadline for such petitions, it would be overruling both the IELRB and this court\u2019s decision in Water Pipe Extension, Bureau of Engineering v. Illinois Local Labor Relations Board, 252 Ill. App. 3d 932, 625 N.E.2d 733 (1993), in which the court held that a unit clarification petition was untimely filed. In the IELRB\u2019s view, allowing the petitions to be filed at any time would be inconsistent with the Act\u2019s stated purpose of promoting \u201corderly and constructive relationships between all educational employees and their employers\u201d and would allow such relationships to be disrupted at any time. The IELRB contends, on the other hand, that requiring the petitions to be filed within a reasonable time, after the relevant change in circumstances, \u201cmerely requires the petitioner to act in an expeditious manner and does not prevent the removal of statutorily excluded employees.\u201d The District counters that \u201c[i]t is completely unreasonable, and against legislative intent, to find that an employer who fails to expeditiously file a unit clarification petition to exclude specific employment positions [is] to be banned forever from excluding them short of further negotiation with the Union.\u201d\n\u201cTo ensure a party receives due process, 1 \u201c[a]n agency changing its course must apply a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored.\u201d \u2019 [Citation.]\u201d General Services Employees Union, 285 Ill. App. 3d at 515.\nWhile a court\u2019s review of an agency\u2019s statutory interpretation is de novo, the agency\u2019s interpretation should receive deference because it stems from the agency\u2019s expertise and experience. General Services Employees Union, 285 Ill. App. 3d at 515. \u201c[C]ourts may not interfere with the discretionary authority of an agency unless it is exercised in an arbitrary and capricious manner or is against the manifest weight of the evidence.\u201d General Services Employees Union, 285 Ill. App. 3d at 515. As stated by the General Services Employees Union court:\n\u201cAgency action is arbitrary and capricious if the agency contravenes the legislature\u2019s intent, fails to consider a crucial aspect of the problem, or offers an explanation which is so implausible that it runs contrary to agency expertise. [Citation.] \u2018While an agency is not required to adhere to a certain policy or practice forever, sudden and unexplained changes have often been considered arbitrary. [Citation.] The standard is one of rationality.\u2019 [Citation.]\u201d General Services Employees Union, 285 Ill. App. 3d at 515-16.\nPrior to the IELRB\u2019s decision in the instant case, no time limit existed for the filing of a unit clarification petition to exclude statutorily excluded employees from a bargaining unit. Community High School District No. 218, 2 Pub. Employee Rep. (Ill.) par. 1087. More specifically, in District No. 218, the union had sought, inter alia, to include in a secretarial bargaining unit four secretaries\u2019 positions which the district had excluded from the unit as confidential employees under the Act. The secretaries at issue had long been included in the unit prior to that time. The hearing officer granted the union\u2019s petition, holding that the Act forbade the district from changing the composition of a bargaining unit recognized by it prior to the Act\u2019s January 1, 1984, effective date, and concluding that the secretaries in question were \u201cgrandfathered\u201d along with the rest of the historical unit. The hearing officer further concluded that whether or not these individuals might fall within one of the statutory exclusions was immaterial.\nIn construing the meaning of section 7(a) of the Act, the IELRB in District No. 218 stated that to accept the hearing officer\u2019s interpretation of the section \u201cwould negate the express legislative policy to exclude confidential employees from coverage under the Act. The legislature clearly intended to exclude such individuals\u201d and \u201cdid so for sound policy reasons,\u201d i.e., \u201c[i]n terms of \u2018confidential employees,\u2019 it was felt that an employer should not be compelled to bargain with individuals who receive advance information concerning its collective bargaining strategy or labor relations policies.\u201d District No. 218, 2 Pub. Employee Rep. (Ill.) par. 1087. The IELRB also stated that a unit that includes confidential employees is repugnant to the Act and \u201crequires the exclusion of confidential employees regardless of their prior inclusion in a bargaining unit.\u201d District No. 218, 2 Pub. Employee Rep. (Ill.) par. 1087.\nRecently, in Department of Central Management Services v. Illinois Labor Relations Board, 364 Ill. App. 3d 1028, 848 N.E.2d 118 (2006) (CMS), this court addressed the issue of when a unit clarification petition, seeking to exclude confidential employees, may be filed. In CMS, the Illinois State Labor Relations Board (Board) dismissed stipulated unit clarification petitions, involved in two separate cases, filed by the Department of Central Management Services (Department) and the American Federation of State, County, and Municipal Employees (AFSCME), which sought to exclude four employees from their bargaining units. The Board determined that, in both cases, the unit clarification petitions did not fall under any of four situations permitting the filing of the petitions, i.e., a substantial change in the duties and functions of an existing job title, the inadvertent overlooking of employees by the parties when the unit was created, changes in statutory or case law, and a newly created job classification.\nOn appeal, this court, while noting that CMS\u2019s petition did not fall within any of the four limited circumstances under which a party may file such a petition, concluded that \u201cunder the unique circumstances that exist in these cases \u2014 that is, where allegedly confidential employees were improperly included in a bargaining unit \u2014 the filing of a unit-clarification petition is appropriate.\u201d CMS, 364 Ill. App. 3d at 1033. This court in CMS pointed to section 3(n) of the Illinois Public Labor Relations Act (Public Labor Relations Act) (5 ILCS 315/3(n) (West 2004)), which excludes confidential employees from the definition of employees to which the Public Labor Relations Act applies. The reason for this exclusion, the court noted, was explained in Chief Judge of the Circuit Court v. American Federation of State, County & Municipal Employees, Council 31, 153 Ill. 2d 508 (1992), which stated:\n\u201c \u2018The purpose of excluding confidential employees is to keep employees from \u201chaving their loyalties divided\u201d between their employer and the bargaining unit which represents them. The employer expects confidentiality in labor[-]relations matters but the union may seek access to the confidential materials to gain a bargaining advantage.\u2019 \u201d CMS, 364 Ill. App. 3d at 1033-34, quoting Chief Judge of the Circuit Court, 153 Ill. 2d at 523.\nThis court in CMS stated: \u201cGiven the importance of confidentiality in labor-relations matters, to protect both the employers and the confidential employees (who could find themselves torn between loyalty to their employer and their bargaining unit), we hold that a unit-clarification petition may appropriately be used to sever confidential employees from a bargaining unit.\u201d CMS, 364 Ill. App. 3d at 1034.\nIn addressing the Board\u2019s additional argument that one of the petitions was untimely filed, this court in CMS stated:\n\u201cAs our supreme court recognized in Chief Judge of the Circuit Court, [citation], the State has an interest in keeping confidential employees out of bargaining units. If, at any point, the State determines that a confidential employee is a member of a bargaining unit, the State must be allowed to file a unit-clarification petition to remove that confidential employee. The fact that a confidential employee was improperly placed in a bargaining unit and the issue of his placement was not raised for several years should not dictate that he forever be allowed to stay in the bargaining unit. We thus conclude that the State can file a unit-clarification petition to remove a confidential employee from a bargaining unit at any time.\u201d (Emphasis added.) CMS, 364 Ill. App. 3d at 1035-36.\nIn so concluding, this court stated that its decision in Water Pipe Extension did not require a different result because that case involved neither confidential employees nor the \u201cunique circumstances\u201d in the case before the CMS court. CMS, 364 Ill. App. 3d at 1036. Accordingly, the court reversed and remanded the consolidated cases to the Board for an evidentiary hearing to determine if any of the employees named in the unit clarification petitions were confidential employees under section 3(c) of the Public Labor Relations Act. CMS, 364 Ill. App. 3d at 1036.\nIn the instant case, the IELRB overruled its former decision in District No. 218, stating, inter alia, that allowing unit clarification petitions to remove statutorily excluded employees at any time is inconsistent with the statutory policy of promoting stability in collective bargaining relationships, and permits the relationships between educational employers and employees to be disrupted at any time, thereby undermining the collective bargaining process. On the other hand, according to the IELRB, setting a reasonable time limit for the filing of petitions seeking to remove allegedly statutorily excluded employees from a bargaining unit promotes orderly and constructive relationships between employers and employees and effectively resolves disputes over the unit placement of the allegedly statutorily excluded employees. The IELRB also stated: \u201cOur decision to set a time limit on the filing of unit clarification petitions seeking to remove allegedly statutorily excluded employees from a bargaining unit agrees with a ruling of the Illinois State Labor Relations Board (\u2018ISLRB\u2019). In County of Fulton, et al., 6 PERI 2024 (ISLRB 1990), the ISLRB indicated, in response to an employer\u2019s argument that a unit clarification petition was always appropriate to exclude a confidential employee from a stipulated unit, that unit clarification was only appropriate where its standards were met.\u201d\nWith respect to the IELRB\u2019s reliance on County of Fulton, we note that the \u201crule\u201d relied on by it, that unit clarification petitions to exclude confidential employees were only appropriate if the ISLRB\u2019s standards were met, was only mentioned in a footnote. Furthermore, the two cases cited by the ISLRB in County of Fulton in support of this statement, City of Burbank, 2 Pub. Employee Rep. (Ill.) par. 2036, Nos. S\u2014UC\u201415, S\u2014UC\u201419 (ISLRB July 30, 1986) and State of Illinois, Department of Central Management Services, 1 Pub. Employee Rep. (Ill.) par. 2014, Nos. S\u2014UC\u20146, S\u2014UC\u20148 (ISLRB July 17, 1985), while discussing standards for the appropriateness of a unit clarification petition, did not involve a timeliness issue as to when the petitions should be filed.\nWe find the rationale in CMS, in allowing a unit clarification petition seeking to remove statutorily excluded employees at any time, persuasive. In the case at bar, notwithstanding all of the stated reasons by the IELRB to set a reasonable time limit in filing a unit clarification petition to remove statutorily excluded confidential employees, the fact remains that, if the petition is found to be untimely filed, keeping the employees in a position where they have access to confidential collective bargaining information gives a union an unfair advantage over an employer. Clearly, a time limit for the filing of a petition to remove allegedly confidential employees, which results in the inability to remove them until a future time, if at all, contravenes the legislature\u2019s express policy to exclude them. Moreover, we fail to see how keeping an otherwise statutorily confidential employee in a bargaining unit conforms with the Act\u2019s purposes and policies to promote stability, orderly and constructive relationships between employees and employers, and effectively resolve disputes.\nWe disagree with the Union, as argued in its subsequently filed motion to this court to cite additional authority, that CMS is inapplicable to the instant case because CMS involved stipulated petitions, whereas here a \u201cunilateral\u201d petition is involved. While this is so, the CMS case clearly indicates that \u201cthe State can file a unit-clarification petition to remove a confidential employee from a bargaining unit at any time.\u201d CMS, 364 Ill. App. 3d at 1036. Thus, the State would not need the assent of a union to file such a petition and, moreover, clearly there is no timeliness consideration connected to such a filing. We further find CMS persuasive, given that section 2(n) of the Act and section 3(c) of the Public Labor Relations Act, defining \u201cconfidential employee,\u201d are virtually identical (115 ILCS 5/2(n) (West 2004); 5 ILCS 315/3(c) (West 2004)); and section 2(b) of the Act and section 3(n) of the Public Labor Relations Act both exclude \u201cconfidential employees\u201d from bargaining units (115 ILCS 5/2(b) (West 2004); 5 ILCS 315/3(n) (West 2004)). In addition, the purposes for these exclusions are essentially the same. Board of Education of Community Consolidated High School District No. 230 v. Illinois Educational Labor Relations Board, 165 Ill. App. 3d 41, 60, 518 N.E.2d 713 (1987) (\u201c[T]he section 2(n) exclusion [of the Act] goes to maintaining the status quo in educational labor negotiations by removing from a unit otherwise-covered employees who have the potential for obtaining advance knowledge of confidential labor relations information, thereby upsetting the normal balance of negotiations\u201d (emphasis in original)); Chief Judge of the Circuit Court, 153 Ill. 2d at 523 (\u201cThe purpose of [the Public Labor Relations Act in] excluding confidential employees is to keep employees from \u2018having their loyalties divided\u2019 between their employer and the bargaining unit which represents them. The employer expects confidentiality in labor relations matters but the union may seek access to the confidential materials to gain a bargaining advantage\u201d).\nIn conclusion, although deference is due to the IELRB in interpreting its policies, rules, and regulations, we find that the IELRB\u2019s determination of untimeliness, setting a reasonable time limit for filing a unit clarification petition seeking to remove statutorily excluded confidential employees, and overruling District No. 218 were arbitrary and capricious, and we reverse.\nFor the reasons stated, we reverse and remand this cause for an evidentiary hearing, with directions.\nReversed and remanded, with directions.\nMcBRIDE, EJ., and CAHILL, J., concur.\nSection 2(n) provides:\n\u201c \u2018Confidential employee\u2019 means an employee, who (i) in the regular course of his or her duties, assists and acts in a confidential capacity to persons who formulate, determine and effectuate management policies with regard to labor relations or who (ii) in the regular course of his or her duties has access to information relating to the effectuation or review of the employer\u2019s collective bargaining policies.\u201d 115 ILCS 5/2(n) (West 2004).\nFor similar reasons, Water Pipe Extension is inapposite to the case at bar. The dispute in Water Pipe Extension was over which of two unions, Local 1092 or the AFSCME, had the right to represent the employees in question. The court affirmed the dismissal of Local 1092\u2019s unit clarification petition for untimeliness. The result was that the employees were represented by the AFSCME. In the case at bar, as in CMS, the situation is different. In both of these cases, the dismissal of the petitions for untimeliness could result in statutorily excluded employees (confidential employees) remaining in a bargaining unit, in contravention of the Act\u2019s express prohibition (115 ILCS 5/2(b) (West 2004)).", "type": "majority", "author": "JUSTICE ROBERT E. GORDON" } ], "attorneys": [ "Seariano, Himes & Petrarca, Chtrd., of Chicago (Anthony G. Scariano and Kimberly Payne, of counsel), for appellant.", "Lisa Madigan, Attorney General, of Chicago (John E Schmidt, Assistant Attorney General, of counsel), for appellee Illinois Educational Labor Relations Board.", "Cornfield & Feldman, of Chicago (Gilbert Feldman, of counsel), for appellee Niles Township Support Staff, Local 1274." ], "corrections": "", "head_matter": "NILES TOWNSHIP HIGH SCHOOL DISTRICT 219, Cook County, Illinois, Petitioner-Appellant, v. ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD et al., Respondents-Appellees.\nFirst District (5th Division)\nNo. 1\u201405\u20142323\nOpinion filed November 13, 2006.\nSeariano, Himes & Petrarca, Chtrd., of Chicago (Anthony G. Scariano and Kimberly Payne, of counsel), for appellant.\nLisa Madigan, Attorney General, of Chicago (John E Schmidt, Assistant Attorney General, of counsel), for appellee Illinois Educational Labor Relations Board.\nCornfield & Feldman, of Chicago (Gilbert Feldman, of counsel), for appellee Niles Township Support Staff, Local 1274." }, "file_name": "0128-01", "first_page_order": 144, "last_page_order": 159 }