Social Policy and Change

Friday, May 16, 2008

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

Update: October 3, 2006

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

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

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

APPEAL OF DETERMINATION

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

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

FINDINGS OF FACT by IDES

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

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

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

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

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

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

NANCE’S ARGUMENT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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

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

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

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

Respectfully submitted,

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

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

18 Supporting documents attached

Wednesday, May 14, 2008

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

Tuesday, May 13, 2008

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

Update: January 5, 2006

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

Update: December 30, 2006

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

Update: December 23, 2006

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

Update: December 14, 2006

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

Update: December 13, 2006

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

Update: November 30, 2006

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

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

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

Update: November 11, 2006

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

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

Update: October 30, 2006

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

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

Update: October 3, 2006

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

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

October 2, 2006

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

Re: Docket #DL 59719:

Ms. Goosby:

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

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

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

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

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

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

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

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

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

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

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

Fred L Nance Jr.

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

Opinion filed October 6, 2005.

JUSTICE FREEMAN delivered the opinion of the court:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CONCLUSION

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

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

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Ms. Hilda Whittington, Supervisor

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Moss v. Illinois Department of Employment Security - College Students: Is your student status your principal occupation?

First Division
May 31, 2005

No. 1-04-1826

TAMARA MOSS,

Plaintiff-Appellant,

v.

THE DEPARTMENT OF EMPLOYMENT SECURITY; DIRECTOR OF THE DEPARTMENT OF EMPLOYMENT SECURITY; BOARD OF REVIEW; TITAN SECURITY SERVICE; and LYLE HEADLEY, HUMAN RESOURCES DIRECTOR,

Defendants-Appellees.

Appeal from
the Circuit Court
of Cook County

03 L 51544

Honorable
Sheldon Gardner
Judge Presiding
JUSTICE McBRIDE delivered the opinion of the court:

In May 2003, plaintiff, Tamara Moss, applied for unemployment insurance benefits from defendant Illinois Department of Employment Security (Department), pursuant to the Unemployment Insurance Act (Act) (820 ILCS 405/100 et seq. (West 2002)). The Department found that plaintiff’s “principal occupation” was that of a student, and therefore, plaintiff was ineligible for unemployment insurance benefits under section 500(C)(4) of the Act. 820 ILCS 405/500(C)(4) (West 2002). On administrative review, the circuit court affirmed the Department’s decision to deny plaintiff’s claim.

Plaintiff appeals, arguing that (1) a claimant’s overall availability to work should be considered before being denied benefits on the ground that her “principal occupation” is that of a student, and (2) part-time workers are eligible for benefits under section 500(C) of the Act.
From September 2001 to March 2003, plaintiff worked full-time as a security officer with defendant Titan Security Services (Titan). Between March and May 2003, plaintiff received sporadic assignments on an “on call, as needed” basis. On May 4, 2003, plaintiff applied for unemployment benefits.

In May 2003, a claims adjudicator with the Department interviewed plaintiff. Plaintiff stated that she was attending classes to become a medical assistant at Olympia College from 7 a.m. until noon Wednesday to Saturday. Her program began April 30, 2003, and would end on December 17, 2003. Plaintiff obtained student loans to pay for the program. Plaintiff stated that she would not be seeking full-time employment until the completion of her program. Plaintiff’s claim for unemployment benefits was denied on May 29, 2003, because the adjudicator found that plaintiff’s “principal occupation” was that of a student and she failed to meet the eligibility requirements under the Act.

Plaintiff appealed this decision. In July 2003, plaintiff testified at a telephone hearing before a referee. Plaintiff stated that her last employer was Titan. While working for Titan, plaintiff began working “different sites” and was no longer working 40 hours a week. Plaintiff was told that she could file for unemployment because she was not working a full-time. Plaintiff received a letter in the mail terminating her employment a couple weeks after she filed for unemployment. Plaintiff confirmed that as of May 4, 2003, she was still employed with Titan when she filed for unemployment, but did not work any hours that week.

Plaintiff said that she was currently taking classes. She chose the morning classes so she would be available for an afternoon or evening shift with Titan. Plaintiff stated that she is “looking for whatever [work] [she] can get.” She indicated that she was willing to work full-time if offered as well as part-time if necessary.

Plaintiff asked the referee why she was ineligible for unemployment benefits, and the referee answered that, “It’s because you are a student. When someone’s principal occupation is student, that is, they look for work around the hours they go to school, they’re not eligible for unemployment.” Plaintiff responded that she only goes to school for five hours and she still has time to work. The referee stated that, “Most jobs are Monday to Friday, X number of hours or what have you. So when you go to school, you try to work your hours around the school, and that makes your principle [sic] occupation school. That’s why you have not received benefits.” The referee continued and asked plaintiff, “If somebody offered you a full-time job, would you drop school?” Plaintiff answered that she would not be able to leave school because she would still need to pay back the student loan regardless of if she finishes the program or not.

The referee issued her decision in July 2003 and affirmed the decision of the local office finding plaintiff ineligible because her principal occupation is that of a student. In her conclusion, the referee held: “The claimant’s principal occupation is that of a student. Although she has worked and continues to look for part-time work or work that will fit around her schedule, the realities of her present position are school is primary and work is secondary. That conclusion is drawn since she will not leave school to take a job. No matter how harsh the latter may seem, it dictates that her primary interest is that of a student. The claimant is not being penalized for going to school. The unemployment statute was established for workers who found themselves unemployed through no fault of their own and who put no restrictions on securing a new job. Consequently, the claimant is not eligible to receive unemployment benefits under Section 500C4 of the Act.”

In July 2003, plaintiff appealed the referee’s decision to the Board of Review (Board). In her letter of appeal, plaintiff characterized herself as a “part-time student” and argued that “business is not only conducted around the regular 9-5 hours.” She noted that a person very seldom gets a 9 a.m. to 5 p.m. shift in the security field. She said that while she will not leave school, she was willing to change her course schedule to fit her work schedule. Plaintiff wrote another letter to the Board in August 2003 because she had not received a decision.

In November 2003, the Board affirmed the referee’s decision. The Board determined that further evidence was unnecessary and the referee’s decision was supported by the record and the law. The Board specifically highlighted plaintiff’s statement that she would not “drop” school if offered a full-time job. The Board found that plaintiff “has voluntarily withdrawn herself from the active labor force. In addition she places such unreasonable restorations on her search for work as to render obtaining new employment which meets all her conditions, realistically doubtful.”

In December 2003, plaintiff sought administrative review in the circuit court. In March 2004, plaintiff filed a memorandum of law in support of her complaint. In May 2004, the court entered an order affirming the decision of the Board.

This appeal followed.

The primary issue before this court is whether plaintiff’s principal occupation is that of a student pursuant to section 500(C)(4) of the Act. Plaintiff argues that the Department has created a per se rule to exclude a claimant from unemployment benefits if that claimant refuses to quit school to take a job. Plaintiff asserts that this issue should be reviewed de novo because it is question of statutory construction. Defendants disagree and argue the standard of review is clearly erroneous because this issue presents a mixed question of fact and law since the determination of whether plaintiff’s principal occupation is that of a student involves a factual as well as legal determination.

We agree with defendants. A mixed question of law and fact is one involving an examination of the legal effect of a given set of facts. AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 391 (2001). Stated another way, a mixed question is one in which the historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the statutory standard, or whether the rule of law as applied to the established facts is or is not violated. AFM Messenger, 198 Ill. 2d at 391. Here, the question of whether plaintiff’s principal occupation is that of a student under the Act presents a mixed question of law and fact. A mixed question of law and fact is reviewed under the clearly erroneous standard. Knorst v. State Universities Civil Service System, 325 Ill. App. 3d 858, 861 (2001).

The clearly erroneous standard of review lies between the manifest weight of the evidence standard and the de novo standard, and as such, it grants some deference to the agency’s decision. AFM Messenger, 198 Ill. 2d at 392. “When the decision of an administrative agency presents a mixed question of law and fact, the agency decision will be deemed ‘clearly erroneous’ only where the reviewing court, on the entire record, is ‘left with the definite and firm conviction that a mistake has been committed.’ ” AFM Messenger, 198 Ill. 2d at 395, quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 92 L. Ed. 746, 766, 68 S. Ct. 525, 542 (1948). Nonetheless, that the clearly erroneous standard is largely deferential does not mean, however, that a reviewing court must blindly defer to the agency’s decision. AFM Messenger, 198 Ill. 2d at 395.

The primary purpose of the Act is to provide compensation benefits to unemployed individuals to alleviate their economic distress caused by involuntary unemployment, not to benefit those who are unemployed because of their own misdeeds. Miller v. Department of Employment Security, 245 Ill. App. 3d 520, 522 (1993). Receiving unemployment insurance benefits in this state is a conditional right, and the claimant bears the burden of proving his eligibility for those benefits. Miller, 245 Ill. App. 3d at 522.

Section 500 of the Act outlines the eligibility for benefits. An unemployed individual is eligible for benefits if he: (1) has registered for work and has continued to report to an unemployment office; (2) has made a claim for benefits with respect to each week; and (3) is able and available for work, and was actively seeking work for the period in question. 820 ILCS 405/500 (West 2002). “Available for work” means that the claimant stands ready and willing to accept suitable work. Miller, 245 Ill. App. 3d at 522. However, section 500(C)(4) provides that “[a]n individual shall be deemed unavailable for work with respect to any week which occurs in a period when his principal occupation is that of a student in attendance at, or on vacation from, a public or private school.” 820 ILCS 405/500(C)(4) (West 2002).

Here, the Board interpreted plaintiff’s statement that she would not quit school if offered a full-time job to mean that plaintiff was not looking for full-time work. In its decision, the Board relied on this statement to find that plaintiff’s principal occupation was that of a student, and therefore, plaintiff was ineligible for unemployment benefits. We disagree with the Board’s characterization of plaintiff’s response to the question posed by the referee. When asked, “If somebody offered you a full-time job, would you drop school?”, plaintiff said she would not leave school, but she did not say that she would turn down the job. Plaintiff did not state that she was not available and not willing to work a full-time job. In fact, plaintiff told the referee that she was “looking for whatever I can get. If they can get me full-time, I’ll work full-time. If they can get me part-time, I’ll work part time because I need money.”

Moreover, we conclude that asking a claimant whether she would leave school for a full-time job is not the correct focus under section 500(C)(4). The plain language of the statute does not render all students ineligible, just those whose principal occupation is that of a student. Whether a claimant is willing to end her education for a full-time job is not relevant to the issue of eligibility for unemployment benefits because a claimant can be available for work and remain a student. The statute does not set forth any such requirement in order to avoid being classified with a principal occupation of a student. Nor do any Illinois decisions suggest such a requirement.

Instead, the correct focus in determining if a claimant’s principal occupation is that of a student is whether the claimant has placed restrictions on her job search because of her status as a student. The analysis should focus on whether work is subordinate to and geared around an educational program as well as the claimant’s availability to work a full-time job with her school commitments. See Miller, 245 Ill. App. 3d at 523; James v. Department of Labor, 119 Ill. App. 3d 524, 528 (1983).

In Miller and James, the reviewing courts found that the plaintiffs had made work subservient to school and were only seeking part-time work that did not interfere with their courses. Miller, 245 Ill. App. 3d at 523-24; James, 119 Ill. App. 3d at 528. In Miller, the plaintiff took classes at varying times Monday through Friday at Lincoln Land Community College and wanted to work an afternoon or evening shift. Miller, 245 Ill. App. 3d at 522-23. The plaintiff indicated on a form that he did not want to work a ‘ graveyard shift, ’ but later showed a possible willingness to work the late hours if “the pay was right.” Miller, 245 Ill. App. 3d at 523. In his forms, the plaintiff also stated that he could not work Mondays, Tuesdays, Wednesdays or Thursdays because of school. Miller, 245 Ill. App. 3d at 523. Based on this evidence, the Miller court concluded that “the Department could appropriately find plaintiff’s employment was geared around and subservient to his classes.” Miller, 245 Ill. App. 3d at 523.

In James, the plaintiff was enrolled in a doctoral program which required three hours of classes on two evenings a week, clinical training from 9 a.m. to 4 p.m. on Mondays and Wednesdays, six to eight hours a week of studying, and extended studying on Saturday and Sunday at the end of semesters. James, 119 Ill. App. 3d at 527. The plaintiff had worked approximately 16 to 20 hours each week at her former employer. James, 119 Ill. App. 3d at 526. The Second District held that the evidence demonstrated that the plaintiff was employed on a part-time basis while enrolled in “an almost full-time educational program.” James, 119 Ill. App. 3d at 528. The James court went on to find that the time requirements of the plaintiff’s studies were greater than those of her employment. James, 119 Ill. App. 3d at 528.

In the present case, the Board and the referee did not properly consider the circumstances of plaintiff’s case. Plaintiff had worked for Titan for a year and a half, but when her hours were reduced, she decided to enroll in a medical assistant program to change careers. Plaintiff was not a student who worked, but was a worker who opted to become a student to find a better job. Plaintiff stated that she chose the morning classes because she worked in the afternoons for Titan. Plaintiff wanted to remain available for work. Plaintiff scheduled school around work, not the other way around, and she indicated that she would be willing to change her school schedule to accommodate a full-time job. Additionally, we note that unlike in Miller and James, the record does not indicate whether plaintiff was considered a full-time student at Olympia College. The referee also did not inquire about time spent studying outside of the classroom. We will not speculate whether plaintiff’s medical assistant program required study time apart from her time in class.

Also, at the hearing, the referee told plaintiff that “[m]ost jobs are Monday to Friday, X number of hours,” and did not discuss plaintiff’s prior employment and the hours she worked. In the record, plaintiff stated that 9 a.m. to 5 p.m. work is not often available in the security field. We disagree with the referee’s focus on a Monday through Friday, 9 to 5 workweek. Plaintiff’s work history at Titan did not support this conclusion. The reality of today’s world does not support a belief that full-time jobs are only available Monday to Friday, 9 to 5. In some career fields, such as plaintiff’s security officer position, jobs are primarily available for the second shift from 3 to 11 or the third shift from 11 to 7. A claimant who is going to school can be available for a full-time job at the same time, but the circumstances of each case must be considered by the Department before finding that someone’s principal occupation is that of a student.

Our decision, however, is not meant to open the door for all students to seek unemployment benefits when they find themselves out of work. “It should not be assumed that this decision will set a precedent for large numbers of college students to finance their college education by way of unemployment compensation benefits. The factual situations in this case *** are clear, and they permit the courts to draw a line between claimants who are basically students and claimants who are basically committed to the work‑force but in addition are attempting to better themselves by continuing their education.” Patronas v. Unemployment Compensation Board of Review, 291 A.2d 118, 120 (Pa. Cmmw. 1972).

Based on the record in this case, we find that the Board’s decision was clearly erroneous because it failed to consider whether plaintiff’s work was subordinate to school so as to render her unavailable to work full-time. We do not need to reach plaintiff’s remaining issue regarding the eligibility of part-time workers under the statute. We remand for a full hearing on plaintiff’s application for further proceedings consistent with this decision.

Reversed and remanded.

CAHILL, P.J. and GORDON, J., concur.

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