1. Bargaining Strategies When Revenue Is Under Attack
Presented by Benjamin E. Gehrt Clark baird smith llp

2. Union Obstacles To Cost Saving Initiatives
File ULPs contesting every step you take
Demand bargaining, regardless of your contract language
Seek injunctive relief
Grieve under contract
PR Campaigns

3. Rescind management’s action Reinstate any laid off employees
Possible Remedies
Rescind management’s action
Reinstate any laid off employees
Full back pay, plus 7.0% interest!

4. Sample Remedies
St. Clair County, 2012 IL App (5th) U (County required to pay more than $600,000 in backpay because it used non-bargaining unit employees; backpay was ordered even though there was no evidence that any bargaining unit employee lost any compensation).
City of Marengo, 20 PERI ¶ 99 (ILRB 2004) (police department’s decision to address staffing shortage by hiring non-bargaining unit part-time police officers was a mandatory subject, even though no employee lost benefits or work hours; ordered to pay back pay plus interest)

5. Union Resistance To Wage Freezes
0% Interest Arbitration Awards
2015: 0 / 0
2014: 0 / 1
2013: 0 / 4
2012: 0 / 2

6. 2015 Interest Arbitration Decisions
8 Decisions Through August 2015
2013 Average = 2.17%
2014 Average = 2.44%
2015 Average = 2.19%
2016 Average = 2.72%

7. Things to Consider Regarding Wages
Wage and step freezes can still be negotiated
Consider proposals allowing “take backs” or reopeners if the legislature reduces or limits your ability to raise funds

8. Four KEY Considerations
Decisional Bargaining
Effects Bargaining
Contract Language
Statutory Restrictions
Decision bargaining: assignment of work to non-bargaining unit employees will usually result in decision bargaining obligations.
Will almost always have effects bargaining obligations – unless they are waived.
Employer will want to expedite, but Union will want to delay.
If Union intentionally delays, employer can unilaterally implement. Bellwood, 25 PERI 95. But this is very risky.
Effects examples:
Severance Pay
Cost of premiums
Outplacement assistance
Recall Rights
Preferential hiring rights
Contract language

9. What Is Your Starting Point?
Bargaining for an initial contract?
In the middle of a multi-year agreement?
Bargaining for a successor contract?
Interest arbitration or right-to-strike?
Initial contract
Duty to maintain status quo
Mid-year contract
Limited by what your predecessors already agreed to
Mid-term strikes are permitted under private sector case law. Hydrologics, 293 NLRB 1060.
Successor contract
Easier if it is a right-to-strike unit if you can withstand a strike
Interest arbitration
Breakthrough burden of proof
Right to mid-term interest arbitration.

10. What Is Your Starting Point?
Always check your existing CBA first
Key clauses to review:
Entire Agreement or “Zipper” Clause
Subcontracting
Layoffs
Furloughs
Management Rights Clause
Right to Use Non-Bargaining Unit Employees
Minimum Staffing
If you are going to claim the Union has waived its bargaining rights, the waiver must be “clear and unequivocal.”
E.g., a separate subcontracting clause is probably an effective waiver
A management rights clause that simply says the employer has the right to decide whether goods and services are made or purchased might be insufficient.

11. What Leverage Do You Have?
What unilateral actions can you take?
What do you have that the Union wants?
What benefits do you provide that are outside the norm?
What do you have that the Union wants?
Residency?
Local 150 insurance?
AFFI insurance?
Staffing?

12. What Decisions might you be allowed to make unilaterally?
Layoffs
Get “out of the business” (based on private sector precedent)
Contract or expand the types of services provided
Increase or decrease the level of service provided
Consolidation/outsourcing not based on labor costs. See, e.g., City of Chicago, 26 PERI ¶ 115 (ILRB 2010) (consolidation of field training officers held to be permissive subject of bargaining).
If CBA does not give you right to layoff, you need to try to argue that.

13. Important Statutory Restrictions for Police and Fire
House Bill 4418 / P.A
Municipalities and Districts that serve 500 or more residents must pass a referendum before closing any “fire department.”
Senate Bill 1681 / P.A
The “Anti-Consolidation Bill”
Includes important exceptions
House Bill 5485 / P.A
Minimum staffing
Municipal Code – Substitutes Acts for Police and Fire
65 ILCS 5/ ; 65 ILCS 5/

14. Consider offering to bargain effects along with decision.
Bargaining Tips
Consider offering to bargain effects along with decision.
BUT BE VERY CAREFUL – Carbondale Community High Sch. Dist. No. 165, 2 PERI ¶ (IELRB 1986) (union argued that mixing decision and effects raises inference of bad faith) ;
Establish tentative dates for implementation.

15. Bargaining TIPS Be “super available” to meet. Cut to the chase.
Consider ULP charges when union delays See Village of Bellwood, 25 PERI ¶ 95 (ILRB 2009) (AFSCME found guilty of bad faith bargaining by pursuing delay tactics).

16. Case Study: Subcontracting
Subcontracting of Inspection Services
Inspectional services conducted by both public works (AFSCME) and fire department (IAFF)
Subcontracted inspectional services to: 1) enhance service to the community; 2) avoid conflicts of interest; and 3) save costs
Results
Public response
Union response

17. Case Study: Consolidating Police Services
Consolidation of Police Services
2 West Suburban communities sought to consolidate police services to reduce operational expenses
Engaged in preliminary discussions
Outcome: No deal

18. Case Study: Consolidating FIRE Services
Consolidation of Fire Services
2 suburban communities are seeking to consolidate fire and EMS services
Unique factors:
Many firefighters in one community are close to retirement age
There is already a close mutual aid relationship
Add discussion re: Consolidation of Fire Services if client approves:
2 suburban communities are seeking to consolidate fire and EMS services
Preliminary indications are that both groups of firefighters are willing and interested
Unique factors:
Many firefighters in one community are close to retirement age already
Already have close mutual aid relationship

19. Consolidation
If consolidation is involved, how will new pay rates be established for combined jobs?
How will seniority be handled for layoff, recall and/or vacation selection preferences?
Which employees will be retained or let go?

20. Consolidation
If two different unions are involved, which will represent the consolidated job or entity?
How will accrued vacation and sick leave be handled?

21. Consolidation
NOTE:
If two unions are involved, the decisional and effects bargaining must be successfully completed with both, prior to implementation – absent waiver

22. Case Study: Village of Carpentersville
Historically a part-time department. Part-time employees represented by SEIU
Added full-time employees to add stability. Full-time employees represented by IAFF
In negotiations, Union claimed that the use of part-time employees was a violation of the Substitutes Act
The Employer argued that the part-time employees were not “substitutes.”
Copyright 2015 Clark Baird Smith LLP

23. Case Study: Village of Carpentersville
The Strategy:
The Village approached SEIU and cut a deal with the PT firefighters. Agreed to give any PT employee who was “qualified” by the BFPC extra compensation.
The Outcome:
IAFF appeared legitimately concerned that this might circumvent the requirements of the Substitutes Act.
Cut a deal with a “mutually assured destruction clause:” as long as Village maintains specific full-time staffing levels, Village has unfettered right to use part-time employees.
Copyright 2015 Clark Baird Smith LLP

25. Case Study: Village of Chicago Ridge
Small community: 14,305 residents in 2010
Daily staffing: 4 full-time firefighters per shift, represented by IAFF
Implemented strategy to increase service using part-time firefighters.
Successfully reduced ambulance response times by ~ 2 minutes per call.
Copyright 2015 Clark Baird Smith LLP

26. Case Study: 2-Tier Systems
More and more contracts are including 2-tier wage and benefit systems.
City of DeKalb, No. S-MA (2012 Meyers). Multi-tier retiree health insurance.
City of Bloomington, No. S-MA (2013 Greco). 2-tier sick leave buyback.
Copyright 2015 Clark Baird Smith LLP

27. Final Point For Consideration
The Labor Board might be more management-friendly for the next few years.
Governor Rauner has already appointed two members:
John Samolis
Previously served as Senior VP of Labor Relations for Exelon
Keith Snyder
Previously served as Mayor for City of Lincoln