Collective Bargaining: A PRIMER FOR NEGOTIATIONS
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Collective Bargaining: A PRIMER FOR NEGOTIATIONS Thomas M. Melody Klein, Thorpe Jenkins, Ltd. Jason A. Guisinger 20 N. Wacker Drive, Suite1660, Chicago IL, 60606 Erin K. Lavery 312-984-6400 INTRODUCTION Illinois Public Labor Relations Act
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01
Collective Bargaining: A PRIMER FOR NEGOTIATIONS Thomas M. Melody Klein, Thorpe & Jenkins, Ltd.
Jason A. Guisinger 20 N. Wacker Drive, Suite1660, Chicago IL, 60606
Erin K. Lavery 312-984-6400<br>
Jason A. Guisinger 20 N. Wacker Drive, Suite1660, Chicago IL, 60606
Erin K. Lavery 312-984-6400<br>
02
INTRODUCTION Illinois Public Labor Relations Act
Unfair Labor Practices
Collective Bargaining
Arbitrations
Practical Considerations during Negotiations<br>
Unfair Labor Practices
Collective Bargaining
Arbitrations
Practical Considerations during Negotiations<br>
03
UNDERSTANDING THE LAW SOURCE OF LAW
Illinois Statutes
Illinois Public Labor Relations Act
5 ILCS 315/1 et seq.
Agency Rules and Decisions
Illinois Labor Relations Rules and Regulations
Decisions of the Illinois Labor Relations Board (ILRB)
Court Decisions<br>
Illinois Statutes
Illinois Public Labor Relations Act
5 ILCS 315/1 et seq.
Agency Rules and Decisions
Illinois Labor Relations Rules and Regulations
Decisions of the Illinois Labor Relations Board (ILRB)
Court Decisions<br>
04
IL PUBLIC LABOR RELATIONS ACT Purpose:
The purpose of the IPLRA is, “to prescribe the legitimate rights of both public employees and public employers, to protect the public health and safety of the citizens of Illinois, and to provide peaceful and orderly procedures for protection of the rights of all.”<br>
The purpose of the IPLRA is, “to prescribe the legitimate rights of both public employees and public employers, to protect the public health and safety of the citizens of Illinois, and to provide peaceful and orderly procedures for protection of the rights of all.”<br>
05
Who is covered? The Act applies only to public employers, public employees, and the labor organizations which represent those public employees.
Public employers include any unit of local government
Public employees are individuals employed by a public employer
Essential services employees are those public employees performing functions so essential that the interruption or termination of the function will constitute a clear and present danger to the health and safety of the persons affected in the affected community
Police officers, firefighters & paramedics<br>
Public employers include any unit of local government
Public employees are individuals employed by a public employer
Essential services employees are those public employees performing functions so essential that the interruption or termination of the function will constitute a clear and present danger to the health and safety of the persons affected in the affected community
Police officers, firefighters & paramedics<br>
06
Managerial Employees The Act does not cover “managerial employees”
Managerial employee means an individual who is engaged predominantly in executive and management functions and is charged with the responsibility of directing the effectuation of management policies and practices. 5 ILCS 315/3(j)<br>
Managerial employee means an individual who is engaged predominantly in executive and management functions and is charged with the responsibility of directing the effectuation of management policies and practices. 5 ILCS 315/3(j)<br>
07
Supervisors in Police Bargaining Units Sec. 3(r): “Supervisor” is an employee whose principal work is substantially different than that of his or her subordinates and who has the authority, in the interest of the employer, to hire, transfer, suspend, lay off, promote, discharge, direct, reward, or discipline employees, to adjust their grievances, or to effectively recommend any of those actions, if the exercise of that authority is not of a merely routine or clerical nature, but requires the consistent use of independent judgment.
In determining supervisory status in police employment, rank shall not be determinative.
The Board shall consider, as evidence of bargaining unit inclusion or exclusion, the common law enforcement policies and relationships between police officer ranks and certification under applicable civil service law, ordinances, personnel codes, or Division 2.1 of Article 10 of the Illinois Municipal Code, but these factors shall not be the sole or predominant factors considered by the Board in determining police supervisory status.<br>
In determining supervisory status in police employment, rank shall not be determinative.
The Board shall consider, as evidence of bargaining unit inclusion or exclusion, the common law enforcement policies and relationships between police officer ranks and certification under applicable civil service law, ordinances, personnel codes, or Division 2.1 of Article 10 of the Illinois Municipal Code, but these factors shall not be the sole or predominant factors considered by the Board in determining police supervisory status.<br>
08
What the Act Protects It protects the following rights:
the right to form, join or assist labor organizations without fear of discrimination, penalty or retaliation:
the right to bargain collectively with their employer through representatives of their own choosing;
the right to engage in other lawful, concerted activities for the purpose of collective bargaining; and
the right to refrain from participating in any and all of these activities.<br>
the right to form, join or assist labor organizations without fear of discrimination, penalty or retaliation:
the right to bargain collectively with their employer through representatives of their own choosing;
the right to engage in other lawful, concerted activities for the purpose of collective bargaining; and
the right to refrain from participating in any and all of these activities.<br>
09
Unfair Labor Practices A public employer commits an unfair labor practice whenever it engages in any of the following acts:
Interfering with, restraining or coercing employees in the exercise of their rights granted in the Act; or dominating or interfering with a labor organization;
Discriminating against employees in order to encourage or discourage membership in/or support for a labor organization;
Discriminating against an employee who has signed or filed an affidavit, petition or charge with the Board, or who has provided any information or testimony pursuant to the Act;
Refusing to bargain in good faith with the exclusive bargaining representative;
Violating any rule or regulation of the Board concerning the conduct of representation elections;
Spending public funds to an external agent, individual, agency or association in an attempt to influence the outcome of a representational election; and
Refusing to reduce a collective bargaining agreement to writing or to sign such an agreement. (Section 10(a) of the Act).<br>
Interfering with, restraining or coercing employees in the exercise of their rights granted in the Act; or dominating or interfering with a labor organization;
Discriminating against employees in order to encourage or discourage membership in/or support for a labor organization;
Discriminating against an employee who has signed or filed an affidavit, petition or charge with the Board, or who has provided any information or testimony pursuant to the Act;
Refusing to bargain in good faith with the exclusive bargaining representative;
Violating any rule or regulation of the Board concerning the conduct of representation elections;
Spending public funds to an external agent, individual, agency or association in an attempt to influence the outcome of a representational election; and
Refusing to reduce a collective bargaining agreement to writing or to sign such an agreement. (Section 10(a) of the Act).<br>
10
Unfair Labor Practices Cont. A labor organization commits an unfair labor practice whenever it engages in any one of the following:
Restraining or coercing public employees in the exercise of rights granted in the Act or violating its duty to fairly represent employees by acting with intentional misconduct;
Restraining or coercing a public employer in the selection of its representative for collective bargaining or grievance settlement purposes;
Attempting to cause an employer to discriminate against an employee, thereby causing the employer to commit an unfair labor practice;
Refusing to bargain in good faith, if it is the exclusive bargaining representative;
Violating any rule or regulation of the Board concerning the conduct of representation elections;
Discriminating against an employee who has signed or filed an affidavit, petition or charge with the Board, or has provided any information for or testified at a Board hearing;
Unlawfully picketing a public employer; and
Refusing to reduce a collective bargaining agreement to writing or to sign such an agreement. (Section 10(b) of the Act).<br>
Restraining or coercing public employees in the exercise of rights granted in the Act or violating its duty to fairly represent employees by acting with intentional misconduct;
Restraining or coercing a public employer in the selection of its representative for collective bargaining or grievance settlement purposes;
Attempting to cause an employer to discriminate against an employee, thereby causing the employer to commit an unfair labor practice;
Refusing to bargain in good faith, if it is the exclusive bargaining representative;
Violating any rule or regulation of the Board concerning the conduct of representation elections;
Discriminating against an employee who has signed or filed an affidavit, petition or charge with the Board, or has provided any information for or testified at a Board hearing;
Unlawfully picketing a public employer; and
Refusing to reduce a collective bargaining agreement to writing or to sign such an agreement. (Section 10(b) of the Act).<br>
11
Who may file an unfair labor practice charge? A public employee, labor organization or a public employer may file unfair labor practice charges with the Illinois Labor Relations Board.
An individual cannot file a charge alleging a violation of either the Employer's or Union’s duty to bargain in good faith
The Union represents an individual when it files a charge on behalf of the individual
When against the Union or otherwise without union assistance, the individual represents himself or hires an attorney to represent him/her<br>
An individual cannot file a charge alleging a violation of either the Employer's or Union’s duty to bargain in good faith
The Union represents an individual when it files a charge on behalf of the individual
When against the Union or otherwise without union assistance, the individual represents himself or hires an attorney to represent him/her<br>
12
Procedures for Unfair Labor Charges A charge must be filed with the Illinois Labor Relations Board (“Board”) within six (6) months of the date the alleged violation occurred, or within six (6) months of the date the charging party should have reasonably become aware of the alleged violation (Section 11(a) of the Act)
The person or entity filing the charge has the burden of proof<br>
The person or entity filing the charge has the burden of proof<br>
13
Procedures for Unfair Labor Charges Once filed with the Board, the charge is assigned to a Board investigator
The investigator talks with the parties and obtains information surrounding the charge
If there is an issue of law or fact, the Executive Director will issue a Complaint for Hearing and set the matter for hearing before an Administrative Law Judge (“ALJ”)
A Complaint sets forth the dispositive facts and allegations; names the ALJ and requires the Respondent to answer each of the allegations in the Complaint prior to a hearing
If the investigation reveals there are no issues of law or fact to support a Complaint, the Executive Director will dismiss the unfair labor practice charge
The charging party may appeal the dismissal to the appropriate Panel of the Board within 10 days after service of the notice of dismissal<br>
The investigator talks with the parties and obtains information surrounding the charge
If there is an issue of law or fact, the Executive Director will issue a Complaint for Hearing and set the matter for hearing before an Administrative Law Judge (“ALJ”)
A Complaint sets forth the dispositive facts and allegations; names the ALJ and requires the Respondent to answer each of the allegations in the Complaint prior to a hearing
If the investigation reveals there are no issues of law or fact to support a Complaint, the Executive Director will dismiss the unfair labor practice charge
The charging party may appeal the dismissal to the appropriate Panel of the Board within 10 days after service of the notice of dismissal<br>
14
Procedures for Unfair Labor Charges At a hearing, the parties have an opportunity to question witnesses under oath, present relevant evidence, argue orally and present written briefs.
The ALJ will issue a written Recommended Decision and Order
Parties may appeal a Recommended Decision and Order by filing “exceptions” with the Board within 30 days of receiving the Recommended Decision.
Exceptions must include a detailed written brief in support of the exceptions
The Board will review the records and the exceptions and issue a ruling either affirming or reversing the ALJ’s recommended decision
Decisions of the Board can be appealed directly to the Appellate Court<br>
The ALJ will issue a written Recommended Decision and Order
Parties may appeal a Recommended Decision and Order by filing “exceptions” with the Board within 30 days of receiving the Recommended Decision.
Exceptions must include a detailed written brief in support of the exceptions
The Board will review the records and the exceptions and issue a ruling either affirming or reversing the ALJ’s recommended decision
Decisions of the Board can be appealed directly to the Appellate Court<br>
15
COLLECTIVE BARGAINING Section 3(b) of the Act defines collective bargaining as “bargaining over terms and conditions of employment, including hours, wages, and other conditions of employment, as detailed in Section 7 and which are not excluded by Section 4”<br>
16
IPLRA- Collective Bargaining Sec. 4. Management Rights.
Employers shall not be required to bargain over matters of inherent managerial policy:
Functions of the employer
Standards of services
Overall budget
Organizational structure and selection of new employees
Examination techniques and direction of employees
Employers shall be required to bargain over:
Policy matters directly affecting wages
Hours and terms and conditions of employment
Impact thereon upon request by employee representatives<br>
Employers shall not be required to bargain over matters of inherent managerial policy:
Functions of the employer
Standards of services
Overall budget
Organizational structure and selection of new employees
Examination techniques and direction of employees
Employers shall be required to bargain over:
Policy matters directly affecting wages
Hours and terms and conditions of employment
Impact thereon upon request by employee representatives<br>
17
Mandatory Subjects of Bargaining The U.S. Supreme Court held that overtime pay, shift differential pay, severance pay, pension and profit sharing are considered mandatory subjects of bargaining
Not an exclusive list
Test to determine if it is a management right or a subject of bargaining:
Does the subject involve wages, hours, or other terms of employment
Does the subject involve inherent managerial authority
If the answer to both above is “yes” then weigh the benefits bargaining has on the decision-making process with the burdens that bargaining imposes on the employer’s authority
If benefits outweigh burden, then it is a mandatory subject of bargaining<br>
Not an exclusive list
Test to determine if it is a management right or a subject of bargaining:
Does the subject involve wages, hours, or other terms of employment
Does the subject involve inherent managerial authority
If the answer to both above is “yes” then weigh the benefits bargaining has on the decision-making process with the burdens that bargaining imposes on the employer’s authority
If benefits outweigh burden, then it is a mandatory subject of bargaining<br>
18
Mandatory Subjects of Bargaining: Guidelines for Employee Conduct FACTS: The Transit Authority made changes to its code of conduct, used by supervisors as a guideline for disciplining employees. The guidelines set out the procedures for discipline including verbal warnings, written warnings, interviewing employees, and so on. The Transit Authority never negotiated the changes to the guidelines with any of the unions representing its employees. One of the changes to the guidelines was the removal of the written warning step in the discipline process.<br>
19
Mandatory Subjects of Bargaining: Guidelines for Employee Conduct ANSWER: Changes to the code of employee conduct is a subject of mandatory bargaining in this case because the Transit Authority’s decision to change the guidelines affects the wages, hours and working conditions of union members. The unilateral elimination of a step in the disciplinary process means that an employee would be subject to suspension at the second, instead of the third step in the process. CTA Trade Coalition, 22 PERI 120 (2006).<br>
20
Mandatory Subjects of Bargaining: Layoffs of Employees ISSUE: The Forest Preserve District decided to hire a private contractor to take over the operations of a golf course it owned and operated, and to layoff 97 employees as a result.<br>
21
Mandatory Subjects of Bargaining: Layoffs of Employees ANSWER: An employer’s decision to layoff employees is inextricably connected with the terms and conditions of employment and is therefore a mandatory subject of bargaining. Conducting layoffs necessarily implicates the terms and conditions of employment and under Central City such layoffs must be bargained. Forest Preserve District of Cook County v. ILRB, 21 PERI 42 (2006) (Illinois Appellate Court, 1st Dist.).<br>
22
IPLRA: Collective Bargaining Sec. 6. Right to organize and bargain collectively; exclusive representation; and fair share arrangements.
(a) Employees of the State and any political subdivision of the State are protected in the exercise of:
The right of self-organization,
The right to form, join or assist any labor organization,
To bargain collectively through representatives of their own choosing on questions of wages, hours and other conditions of employment
The right to engage in collective bargaining activities or other mutual aid or protection, free from interference, restraint or coercion
The right to refrain from such activities<br>
(a) Employees of the State and any political subdivision of the State are protected in the exercise of:
The right of self-organization,
The right to form, join or assist any labor organization,
To bargain collectively through representatives of their own choosing on questions of wages, hours and other conditions of employment
The right to engage in collective bargaining activities or other mutual aid or protection, free from interference, restraint or coercion
The right to refrain from such activities<br>
23
IPLRA: Collective Bargaining Section 7: Duty to bargain. A public employer and the exclusive representative have the authority and the duty to bargain collectively as set forth in this Section.
“Collective bargaining” means mutual obligation to:
Meet at reasonable times – in advance of the budget making process
Negotiate in good faith – wages, hours, conditions of employment
Execute a written contract incorporating any agreement reached
The employer and the exclusive representative are not compelled to agree to a proposal nor to make concessions<br>
“Collective bargaining” means mutual obligation to:
Meet at reasonable times – in advance of the budget making process
Negotiate in good faith – wages, hours, conditions of employment
Execute a written contract incorporating any agreement reached
The employer and the exclusive representative are not compelled to agree to a proposal nor to make concessions<br>
24
IPLRA: Grievance Procedures Section 8: States that a grievance procedure must be established between employer and Union to resolve disputes
The procedure will apply to all employees in the bargaining unit
Will provide for final and binding arbitration of disputes concerning the administration or interpretation of the agreement unless parties mutually agree otherwise
All grievances are subject to the Illinois Uniform Arbitration Act<br>
The procedure will apply to all employees in the bargaining unit
Will provide for final and binding arbitration of disputes concerning the administration or interpretation of the agreement unless parties mutually agree otherwise
All grievances are subject to the Illinois Uniform Arbitration Act<br>
25
Grievance Arbitration The parties have the authority to decide whether grievances will be subject to arbitration.
Can expressly state which portions of the CBA or other rights are entitled to arbitration
Arbitration clause in Croom mandated arbitration only for grievances over express provisions of the collective bargaining agreement. Because the question of additional pay was not expressly addressed in the agreement, it was therefore not subject to arbitration. See Croom v. City of Dekalb, 71 Ill. App. 3d, 370, 375–76 (2d Dist. 1979)
“Arise under CBA” is much broader language<br>
Can expressly state which portions of the CBA or other rights are entitled to arbitration
Arbitration clause in Croom mandated arbitration only for grievances over express provisions of the collective bargaining agreement. Because the question of additional pay was not expressly addressed in the agreement, it was therefore not subject to arbitration. See Croom v. City of Dekalb, 71 Ill. App. 3d, 370, 375–76 (2d Dist. 1979)
“Arise under CBA” is much broader language<br>
26
Grievance Arbitration & Strike Grievance arbitration focuses on resolving disputes regarding the interpretation and application of an existing agreement
When a collective bargaining agreement includes a no-strike provision, it must allow for grievance arbitration
A no-strike provision voluntarily entered into does not entitle employees to interest arbitration<br>
When a collective bargaining agreement includes a no-strike provision, it must allow for grievance arbitration
A no-strike provision voluntarily entered into does not entitle employees to interest arbitration<br>
27
Scope of Grievance Arbitration Grievances generally include any claim that the collective bargaining agreement has been violated or any claim that the collective bargaining agreement is not being interpreted, applied or enforced in a manner contemplated by the agreement.
Arbitrator's authority is generally limited to his interpretation, application or enforcement of the existing labor agreement
Authority does not extent beyond four corners of labor agreement
Arbitrator typically does not have power to add to, subtract from, modify or delete any provision of the labor agreement.<br>
Arbitrator's authority is generally limited to his interpretation, application or enforcement of the existing labor agreement
Authority does not extent beyond four corners of labor agreement
Arbitrator typically does not have power to add to, subtract from, modify or delete any provision of the labor agreement.<br>
28
Selecting an Arbitrator The contract should specify that the arbitrator will be selected either from
A selected panel of arbitrators;
American Arbitration Association; or
Federal Mediation and Conciliation Service<br>
A selected panel of arbitrators;
American Arbitration Association; or
Federal Mediation and Conciliation Service<br>
29
The Hearing Process The Issue
The Burden of Proof
Opening Statement
Examination and Cross Examination
Evidence
Close of the Hearing and the Arbitrator's Decision<br>
The Burden of Proof
Opening Statement
Examination and Cross Examination
Evidence
Close of the Hearing and the Arbitrator's Decision<br>
30
Key Considerations Past Practice:
Where the application of a contract provision is ambiguous and subject to interpretation, Arbitrator will heavily lean on how the parties have previously applied the particular provision.
Negotiating History:
Withdrawn proposals can provide clarity into the understood meaning of a provision.
Stare Decisis:
Though not binding, a previous arbitration decision may be persuasive authority.<br>
Where the application of a contract provision is ambiguous and subject to interpretation, Arbitrator will heavily lean on how the parties have previously applied the particular provision.
Negotiating History:
Withdrawn proposals can provide clarity into the understood meaning of a provision.
Stare Decisis:
Though not binding, a previous arbitration decision may be persuasive authority.<br>
31
Principles of Construction A party cannot obtain in arbitration what he sought but failed to obtain in negotiations.
Specific language takes precedent over general language.
To express one thing is to exclude another.
Avoidance of harsh result.<br>
Specific language takes precedent over general language.
To express one thing is to exclude another.
Avoidance of harsh result.<br>
32
Vacating an Award CBA may specifically provide that an arbitrator's decision shall be “final and binding.”
The Uniform Arbitration Act provides authority to challenge the ruling of the arbitrator if the arbitrator did not (1) follow the applicable “rules of law,” (2) decide in accordance with terms of the contract, or (3) “take into account the uses of trade applicable to the transaction.” 710 ILCS 5/8 (2010).
Grounds for vacating an award:
(1) the award was procured by corruption or fraud,
(2) the arbitrator was partial,
(3) the arbitrator exceeded his or her powers,
(4) the arbitrator unreasonably refused to postpone the hearing or hear evidence, or
(5) there was no agreement to arbitrate,
(6)where a “gross error of law or fact appears on the award’s face.”<br>
The Uniform Arbitration Act provides authority to challenge the ruling of the arbitrator if the arbitrator did not (1) follow the applicable “rules of law,” (2) decide in accordance with terms of the contract, or (3) “take into account the uses of trade applicable to the transaction.” 710 ILCS 5/8 (2010).
Grounds for vacating an award:
(1) the award was procured by corruption or fraud,
(2) the arbitrator was partial,
(3) the arbitrator exceeded his or her powers,
(4) the arbitrator unreasonably refused to postpone the hearing or hear evidence, or
(5) there was no agreement to arbitrate,
(6)where a “gross error of law or fact appears on the award’s face.”<br>
33
IPLRA: Interest Arbitration Section 17 of the Act prohibits security employees, as defined in Section 3(p) of the Act, Peace Officers, Fire Fighters, and paramedics employed by fire departments and fire protection districts from striking.
As a result of being prohibited by law (in contrast to agreement) from striking, those employees are entitled to interest arbitration.<br>
As a result of being prohibited by law (in contrast to agreement) from striking, those employees are entitled to interest arbitration.<br>
34
Interest Arbitration Interest Arbitration focuses on resolving disputes regarding the “new” or “next” labor agreement.
Parties present evidence, data and arguments in support of their position that a particular provision should be included in the next contract, which arbitrators will propose or award.
Binding on both parties.<br>
Parties present evidence, data and arguments in support of their position that a particular provision should be included in the next contract, which arbitrators will propose or award.
Binding on both parties.<br>
35
Impasse/Interest Arbitration Under the IPLRA Section 14: Security Employee, Peace Officer and Fire Fighter Disputes.
Prior to engaging in interest arbitration, parties must reach impasse
Upon impasse, mediation shall begin 30 days prior to the expiration date of a collective bargaining agreement, (or upon 15 days notice for an initial collective bargaining agreement) unless the parties mutually agree on some other time limit
Either party may request arbitration if any dispute has not been resolved within 15 days of the last meeting of the parties and the mediator<br>
Prior to engaging in interest arbitration, parties must reach impasse
Upon impasse, mediation shall begin 30 days prior to the expiration date of a collective bargaining agreement, (or upon 15 days notice for an initial collective bargaining agreement) unless the parties mutually agree on some other time limit
Either party may request arbitration if any dispute has not been resolved within 15 days of the last meeting of the parties and the mediator<br>
36
No Strike Under the IPLRA – Clear and Present Danger Section 18: (a) If a strike, which may constitute a clear and present danger to the health and safety of the public, is about to occur or is in progress, the public employer concerned may petition the board to make an investigation and conduct a hearing.
If the board finds that within 72 hours there is a clear and present danger to the health and safety of the public, the employer shall petition the circuit court where the strike is about to occur or is in progress for appropriate judicial relief to stop the strike or to set conditions and requirements which must be complied with by the exclusive representative, to avoid or remove any such clear and present danger.
The Court may allow the strike to occur or order essential employees back to work if it finds it necessary to protect public health and safety from clear and present danger.<br>
If the board finds that within 72 hours there is a clear and present danger to the health and safety of the public, the employer shall petition the circuit court where the strike is about to occur or is in progress for appropriate judicial relief to stop the strike or to set conditions and requirements which must be complied with by the exclusive representative, to avoid or remove any such clear and present danger.
The Court may allow the strike to occur or order essential employees back to work if it finds it necessary to protect public health and safety from clear and present danger.<br>
37
Contractual Issues The Act Takes Precedence.
Any collective bargaining contract between a public employer and a labor organization executed pursuant to 5 ILCS 315 shall supersede any contrary statutes, charters, ordinances, rules or regulations relating to wages, hours and conditions of employment and employment relations adopted by the public employer or its agents. Any collective bargaining agreement entered into prior to the effective date of this Act shall remain in full force during its duration.<br>
Any collective bargaining contract between a public employer and a labor organization executed pursuant to 5 ILCS 315 shall supersede any contrary statutes, charters, ordinances, rules or regulations relating to wages, hours and conditions of employment and employment relations adopted by the public employer or its agents. Any collective bargaining agreement entered into prior to the effective date of this Act shall remain in full force during its duration.<br>
38
PRACTICAL CONSIDERATIONS<br>
39
Bargaining Teams Neither side can dictate who to include or exclude from their respective teams. The parties may agree to limit the number of bargaining team members.
The bargaining teams are expected to have authority to enter into tentative agreements on contract proposals.
The employer’s team should not include a majority of the members of the Board so that a Board commitment to an issue cannot be immediately made at the table. If a majority of the Board is present, the union will put intense pressure on the members who are present to commit to a position.
The employer's team should include an administrator who is familiar with the day-to-day operation of the public body so that the employer’s team can have reliable information available if the union asserts that there are operational problems.
It may be advantageous to not have the chief administrator at the table. The employer’s team can rely on taking issues back to the administrator for review. Additionally, unions sometimes portray the chief administrator as the “bad guy,” so that there is a rallying point for the membership and having the chief administrator at the table may cause issues.
The team should select a spokesperson so that statements made at the table are clear and consistent.<br>
The bargaining teams are expected to have authority to enter into tentative agreements on contract proposals.
The employer’s team should not include a majority of the members of the Board so that a Board commitment to an issue cannot be immediately made at the table. If a majority of the Board is present, the union will put intense pressure on the members who are present to commit to a position.
The employer's team should include an administrator who is familiar with the day-to-day operation of the public body so that the employer’s team can have reliable information available if the union asserts that there are operational problems.
It may be advantageous to not have the chief administrator at the table. The employer’s team can rely on taking issues back to the administrator for review. Additionally, unions sometimes portray the chief administrator as the “bad guy,” so that there is a rallying point for the membership and having the chief administrator at the table may cause issues.
The team should select a spokesperson so that statements made at the table are clear and consistent.<br>
40
Ground Rules Guidelines to govern bargaining
May mutually agree to dispense with or relax them
Can include things like:
No discussion with media
Time limit on meetings
Structure of proposals<br>
May mutually agree to dispense with or relax them
Can include things like:
No discussion with media
Time limit on meetings
Structure of proposals<br>
41
The First Proposal First proposal should come from the union.
Employer may base its response on the union’s proposal.
Do not bargain in a piecemeal fashion.<br>
Employer may base its response on the union’s proposal.
Do not bargain in a piecemeal fashion.<br>
42
Employer Responses Employer response may not be “Take it or Leave it.”
Employer is not required to accept union’s proposal.<br>
Employer is not required to accept union’s proposal.<br>
43
Strategic Considerations The bargaining table is a place to solve problems – both sides should explain their proposals
Make new language proposals appear to be as similar to existing language as possible
Agree on the scattergram composition as soon as possible
Scattergram composition should not be changed form year to year
Be wary of regressive bargaining
Use of “package proposals”
Use of the “supposal”<br>
Make new language proposals appear to be as similar to existing language as possible
Agree on the scattergram composition as soon as possible
Scattergram composition should not be changed form year to year
Be wary of regressive bargaining
Use of “package proposals”
Use of the “supposal”<br>
44
Strategic Considerations Use of the “sidebar”
Understand the theory of “diminished expectations”
Know how each proposal affects each member of the union’s team
Cost the union’s financial proposal on your own
Statements made at and away from the table send messages
“Sleeping dogs”
“Sacred cows”<br>
Understand the theory of “diminished expectations”
Know how each proposal affects each member of the union’s team
Cost the union’s financial proposal on your own
Statements made at and away from the table send messages
“Sleeping dogs”
“Sacred cows”<br>
45
Interest Based (“Win-Win”) Format Negotiating<br>
46
Foundations of Interest Based Bargaining Interest Based Bargaining (“IBB”), known as “win-win” and “mutual gains” abandons the formal spokesperson and exchange of written proposals and allows participation by many individuals and focuses on interest based problem solving techniques
Extensive training of the teams in problem solving and listening techniques
Commitment of all or most of the members of the Employer in the training and bargaining sessions
Willingness of all participants to follow the IBB format and principles<br>
Extensive training of the teams in problem solving and listening techniques
Commitment of all or most of the members of the Employer in the training and bargaining sessions
Willingness of all participants to follow the IBB format and principles<br>
47
Benefits of IBB Open exploration and discussion of issues
Union may develop greater appreciation of the board’s limitations and interests
Process may dissipate acrimony built up as the result of previous negotiations
Expedited process with a deadline<br>
Union may develop greater appreciation of the board’s limitations and interests
Process may dissipate acrimony built up as the result of previous negotiations
Expedited process with a deadline<br>
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Disadvantages of IBB Unrealistic expectations
Multiple participants raise possible contract language problems and grievances
Bargaining history is more difficult to discern and verify
Individuals may become subject to personal attacks
Significant time commitment from all participants<br>
Multiple participants raise possible contract language problems and grievances
Bargaining history is more difficult to discern and verify
Individuals may become subject to personal attacks
Significant time commitment from all participants<br>
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Training IBB Process requires training
Training
Providers
Time Commitment
Focus of Training
Preview of the Process
Identify issues of mutual concern
Identify various interests the parties share
Develop standards for evaluating possible solutions<br>
Training
Providers
Time Commitment
Focus of Training
Preview of the Process
Identify issues of mutual concern
Identify various interests the parties share
Develop standards for evaluating possible solutions<br>
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The Process Extended time periods for sessions
Establish subcommittees to address certain issues
Compressed time period with specific deadlines for completion
Participation by all bargaining team members
Options and solutions are freely expressed
Participants use active listening techniques<br>
Establish subcommittees to address certain issues
Compressed time period with specific deadlines for completion
Participation by all bargaining team members
Options and solutions are freely expressed
Participants use active listening techniques<br>
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IBB Negotiation Completion Set a final meeting date by which negotiations will be concluded and a final agreement reached
Committees must report on resolved and unresolved issues
Unresolved issues must be treated and resolved by the full teams at time of completion
Parties agree to convert “agreements in principle” to written tentative agreements<br>
Committees must report on resolved and unresolved issues
Unresolved issues must be treated and resolved by the full teams at time of completion
Parties agree to convert “agreements in principle” to written tentative agreements<br>
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Specific Considerations Mid-term negotiations
Subcontracting
Fair Share
Right of Representation
Vacancies<br>
Subcontracting
Fair Share
Right of Representation
Vacancies<br>
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Mid-Term Negotiations<br>
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Duty to Mid-Term Bargain Appellate Court held that security employees under Section 14 are allowed midterm interest arbitration - Department of Central Management Services v. State Labor Relations Board –
Zipper Clauses<br>
Zipper Clauses<br>
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Subcontracting<br>
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Is Subcontracting a Mandatory Subject of Bargaining? An employer's unilateral subcontracting decision is a mandatory subject of bargaining when the subcontracting (1) involved a departure from previously established operating practices, (2) effected a change in the conditions of employment, or (3) resulted in a significant impairment of job tenure, employment security, or reasonably anticipated work opportunities for those in the bargaining unit. Westinghouse Electric Corp. 150 N.L.R.B 1574 (1965)<br>
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Subcontracting - Practical Tips Prepare a detailed analysis of the Municipality’s current costs of the services performed by bargaining unit employees
Discuss the necessity for cost savings with the Board and obtain the Board’s consent and direction to prepare bid specifications
Obtain Board authorization to request and accept competitive bids, then request bids from contractors to determine the Municipality’s costs for services if the services were provided by a contractor<br>
Discuss the necessity for cost savings with the Board and obtain the Board’s consent and direction to prepare bid specifications
Obtain Board authorization to request and accept competitive bids, then request bids from contractors to determine the Municipality’s costs for services if the services were provided by a contractor<br>
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Subcontracting – Practical Tips (cont.) If bids demonstrate potential cost savings, provide the union with written notification that the Municipality is considering contracting-out services
Give consideration to the union’s counter-proposals.
If the parties reach an agreement, they should bargain the impact of the decision. However, if the parties fail to reach an agreement, the municipality must declare an impasse to impose its proposals<br>
Give consideration to the union’s counter-proposals.
If the parties reach an agreement, they should bargain the impact of the decision. However, if the parties fail to reach an agreement, the municipality must declare an impasse to impose its proposals<br>
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Subcontracting – Practical Tips (cont.) If negotiations fail to result in a union proposal that is more favorable to the Board than the lowest received bid, submit the lowest bid to the Board for approval and awarding of the contract
Municipality must bargain the impact of the Municipality’s decision to contract-out services<br>
Municipality must bargain the impact of the Municipality’s decision to contract-out services<br>
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Subcontracting – Bargaining Obligations Duty to bargain subcontract decisions if bargaining unit employee had a reasonable expectation of performing the subcontracted work<br>
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How to determine whether subcontracting is a mandatory subject of bargaining: Is subcontracted work currently or previously performed by bargaining unit employees?
Did bargaining unit employees suffer layoff or reduction in hours as a result of the subcontracted work?
If not, could the employer have increased bargaining unit employees’ work hours or workload by not subcontracting work?
Did the employer subcontract work to reduce labor costs?
If not, did the employer contract out services to avoid obligations arising under a CBA?<br>
Did bargaining unit employees suffer layoff or reduction in hours as a result of the subcontracted work?
If not, could the employer have increased bargaining unit employees’ work hours or workload by not subcontracting work?
Did the employer subcontract work to reduce labor costs?
If not, did the employer contract out services to avoid obligations arising under a CBA?<br>
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Satisfying Good Faith Bargaining Requirements Notify the union district is considering contracting out services
Meet with the union and discuss proposed decision
Provide the union with necessary information to allow it to prepare alternatives
Give appropriate consideration to union’s counter-proposals<br>
Meet with the union and discuss proposed decision
Provide the union with necessary information to allow it to prepare alternatives
Give appropriate consideration to union’s counter-proposals<br>
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Significant Contract Language Issues<br>
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Fair Share Requirement that non-union employees pay their “fair share” of union dues based upon an agreement between the municipality and the union<br>
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Employer Objections to Fair Share An Employer's opposition to fair share is generally based upon several philosophical objections to fair share, including:
Employees should be allowed the freedom to choose whether or not to pay union dues or fees to support the union's activities.
If non-union employees are obligated to pay fair share fees, such an obligation is tantamount to requiring the employees to pay union dues. Employees who are obligated to pay fair share fees may be more inclined to join the union in order to be allowed to participate in union meetings, elections and activities. An Employer who agrees to a fair share provision may believe that such an agreement will be perceived as a "sellout" of the rights of its non-union employees.<br>
Employees should be allowed the freedom to choose whether or not to pay union dues or fees to support the union's activities.
If non-union employees are obligated to pay fair share fees, such an obligation is tantamount to requiring the employees to pay union dues. Employees who are obligated to pay fair share fees may be more inclined to join the union in order to be allowed to participate in union meetings, elections and activities. An Employer who agrees to a fair share provision may believe that such an agreement will be perceived as a "sellout" of the rights of its non-union employees.<br>
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Fair Share - Contractual Issues and Tactical Considerations<br>
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Sample Fair Share Language A. Each Employee, as a condition of his/her employment, on or before thirty (30) days from the date of commencement of duties or the effective date of this Agreement, whichever is later, shall join the Association or pay a fair share fee to the Association equivalent to the amount of dues uniformly required of members of the Association, including local, state and national dues.
B. In the event that the Employee does not pay his/her fair share fee directly to the Association by a certain date as established by the Association, the Board shall deduct the fair share fee from the wages of the non-member.
C. Such fee shall be paid to the Association by the Board no later than ten (10) days following deduction.<br>
B. In the event that the Employee does not pay his/her fair share fee directly to the Association by a certain date as established by the Association, the Board shall deduct the fair share fee from the wages of the non-member.
C. Such fee shall be paid to the Association by the Board no later than ten (10) days following deduction.<br>
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Sample Fair Share Language (cont.) D. In the event of any legal action against the Board brought in a court or administrative agency because of its compliance with this Article, the Association agrees to defend such action, at its own expense and through its own counsel, provided:
The Board gives immediate notice of such action in writing to the Association, and permits the Association intervention as a party if it so desires; and
The Board gives full and complete cooperation to the Association and its counsel in securing and giving evidence, obtaining witnesses and making relevant information available at both trial and all appellate levels.<br>
The Board gives immediate notice of such action in writing to the Association, and permits the Association intervention as a party if it so desires; and
The Board gives full and complete cooperation to the Association and its counsel in securing and giving evidence, obtaining witnesses and making relevant information available at both trial and all appellate levels.<br>
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Sample Fair Share Language (cont.) E. The Association agrees that in any action so defended, it will indemnify and hold harmless the Board from any liability for damages and costs imposed by a final judgment of a court or administrative agency as a direct consequence of the Board's non-negligent compliance with this Article.
It is expressly understood that this save harmless provision will not apply to any claim, demand, suit or other form of liability which may arise as a result of any type of willful misconduct by the Board or the Board's imperfect execution of the obligations imposed upon it by this Article.<br>
It is expressly understood that this save harmless provision will not apply to any claim, demand, suit or other form of liability which may arise as a result of any type of willful misconduct by the Board or the Board's imperfect execution of the obligations imposed upon it by this Article.<br>
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Sample Fair Share Language (cont.) F. The obligation to pay a fair share fee will not apply to any Employee who, on the basis of a bona fide religious tenet or teaching of a church or religious body of which such Employee is a member or a belief sincerely held with the strength of traditional religious views, objects to the payment of a fair share fee to the Association. Upon proper substantiation and collection of the entire fee, the Association will make payment on behalf of the Employee to a mutually agreeable non-religious charitable organization as per Association policy and the Rules and Regulations of the Illinois Educational Labor Relations Board.<br>
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Right of Representation Good Language:
An employee shall have the right to request an Association representative at an investigative interview that the employee reasonably fears may result in his/her discipline. The employee shall also have the right to request an Association representative at any follow-up meetings related to the investigation.
Bad Language:
When an employee is required to meet with a supervisor, administrator, or the Board on a disciplinary matter, and the results of this interview are to become a matter of official record, the employee shall be allowed to have a representative present. A representative shall also be permitted to attend any follow-up meetings relative to an investigation or examination of the disciplinary matter. The supervisor, administrator, or Board shall notify the employee one day in advance, giving reasons for the appearance, of any and all meetings to be held, except in cases which they feel are emergencies.<br>
An employee shall have the right to request an Association representative at an investigative interview that the employee reasonably fears may result in his/her discipline. The employee shall also have the right to request an Association representative at any follow-up meetings related to the investigation.
Bad Language:
When an employee is required to meet with a supervisor, administrator, or the Board on a disciplinary matter, and the results of this interview are to become a matter of official record, the employee shall be allowed to have a representative present. A representative shall also be permitted to attend any follow-up meetings relative to an investigation or examination of the disciplinary matter. The supervisor, administrator, or Board shall notify the employee one day in advance, giving reasons for the appearance, of any and all meetings to be held, except in cases which they feel are emergencies.<br>
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Vacancies – Good Sample Language A vacancy shall be defined as any opening in a newly created position or any opening in a bargaining unit position which occurs as a result of the employee’s resignation, retirement, promotion, reassignment, transfer or termination which the Board decides to fill and is not filled by the reassignment of current bargaining unit personnel. Such application for a vacancy shall be in writing and submitted to the Chief Administrator or his/her designee within the seven (7) calendar day posting period. The request for the transfer will be considered and if denied the employee will be given reasons for the denial. It is agreed that a “vacancy” shall not include positions filled by reassignment of current personnel and positions that the Board decides it will not fill.
Current employees may apply for vacancies and will be considered along with all other applicants, internal and external, for the position.<br>
Current employees may apply for vacancies and will be considered along with all other applicants, internal and external, for the position.<br>
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Vacancies – Bad Sample Language It is agreed by both parties that vacancies shall be filled from among the most qualified applicants available in the following manner
If the final applicants are current bargaining unit members and are equally qualified, the most senior bargaining unit member will be offered the position.
If the final applicants are a current bargaining unit member and one or more applicants from outside the bargaining unit, and all are equally qualified, the current bargaining unit member will be offered the position.
Current employees shall be fully considered for all vacancies for which they apply.<br>
If the final applicants are current bargaining unit members and are equally qualified, the most senior bargaining unit member will be offered the position.
If the final applicants are a current bargaining unit member and one or more applicants from outside the bargaining unit, and all are equally qualified, the current bargaining unit member will be offered the position.
Current employees shall be fully considered for all vacancies for which they apply.<br>
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Collective Bargaining: A PRIMER FOR NEGOTIATIONS Thomas M. Melody Klein, Thorpe & Jenkins, Ltd.
Jason A. Guisinger 20 N. Wacker Drive, Suite1660, Chicago IL, 60606
Erin K. Lavery 312-984-6400<br>
Jason A. Guisinger 20 N. Wacker Drive, Suite1660, Chicago IL, 60606
Erin K. Lavery 312-984-6400<br>