1. Mandatory Subjects of Bargaining
Illinois Municipal League
2017 Municipal Attorneys Seminar
Presented by Benjamin E. Gehrt
BEG
6133 N. River Road | Suite 1120 | Rosemont, IL 60018
(847) Main |
© CLARK BAIRD SMITH LLP 2016

2. Three Broad Categories of Bargaining Topics
Mandatory Subjects of Bargaining. Both parties must bargain upon demand, unless there has been a waiver of bargaining rights. Permissive Subjects of Bargaining. The parties can agree to bargain over the issue, but neither party can be forced to bargain or agree if it objects. Illegal Subjects of Bargaining. Parties cannot bargain over the topic, even if they want to voluntarily agree.
BEG

3. Legal Impact Of Whether A Topic Is Mandatory Or Permissive
First, a party cannot insist on including a permissive subject of bargaining in a collective bargaining agreement. Second, whether a given subject is mandatory or permissive has implications on whether an interest arbitrator has authority to issue a decision on the issue in question. Third, even though the parties have agreed to include the permissive subject of bargaining in a collective bargaining agreement, upon its expiration neither party is under any obligation to include such provision in a successor agreement.
BEG

4. Legal Impact Of Whether A Topic Is Mandatory Or Permissive
Fourth, if it is determined that a given subject is permissive rather than mandatory, an employer can act unilaterally without bargaining as to such permissive subject, but there still may be an obligation to negotiate over the impact. Fifth, if a given issue is deemed to be mandatory, absent a waiver by the union, an employer is prohibited from acting unilaterally on such issue.
BEG

5. Steps To Determine Whether A Proposal Is Mandatory Or Permissive
Historical Subjects Of Bargaining
Statutory Provisions
Waiver of Statutory Rights
Balancing Test
BEG

6. Historical Subjects Of Bargaining
BEG
5 ILCS 315/4

7. Statutory Exclusions - 5 ILCS 315/14(i)
Section 14(i) defines as permissive in police/fire:
For Chicago only, Residency
Residency outside of Illinois for everybody else
Staffing levels in police departments
Type of equipment used
Total number of employees
Mutual aid agreements
Use of force rules
BEG

8. Statutory Exclusions - 5 ILCS 315/14(i)
Section 14(i) defines as mandatory in police/fire:
Residency within Illinois for everybody except Chicago
Minimum staffing for fire departments only
If a subject is not explicitly set forward in Section 14(i), further analysis is required to determine whether it is mandatory or permissive.
Village of Oak Lawn, 2011 IL App (1st)
BEG

9. Waiver of Statutory Rights
E.g., Village of Wheeling, 17 PERI 2018 (ILRB 2001)(waiver of grievance arbitration in lieu of BFPC hearings was a permissive subject of bargaining)
BEG

10. The Central City Balancing Test
Central City Education Ass’n v. IELRB, 149 Ill. 2d 496 (1992) City of Belvidere v. ISLRB, 181 Ill. 2d 191 (1998)
BEG

11. Bargaining Waivers Contractual Waivers Waiver by Inaction
Village of Westchester, 5 PERI 2016 (ISLRB 1989) (adopting the “clear and unmistakable waiver” standard promulgated by the NLRB)
Waiver by Inaction
County of Vermilion, 3 PERI 2004 (ISLRB 1986) (“the duty to bargain arises upon request”)
Illinois Dept. of Central Mgmt. Services, 1 PERI 2016 (ILSRB 1986) (ULP charge dismissed because union failed to demand bargaining)
BEG

12. Impact and Effects Bargaining
BEG
AFSCME v. ISLRB, 190 Ill. App. 3d 259 (1st Dist. 1989) (even though employer had right to make decision unilaterally, employer was still obligated to bargain with the union on demand regarding effects of that decision prior to implementation)

13. Permissive Subjects In Interest Arbitration
Village of Bensenville, 14 PERI 2042 (ISLRB 1998)(mere submission of a permissive subject of bargaining in interest arbitration is not an unfair labor practice)
Wheaton Firefighters v. ISLRB, 2016 Il App (2nd) (affirming and applying Bensenville)
Village of Skokie, 2016 Il App (1st) (court declined to apply Bensenville and Wheaton where arbitrator addressed the allegedly permissive issue over both parties’ objections) (further appeals pending)
BEG

14. Permissive Subjects In Interest Arbitration
When one party objects in good faith, the Arbitrator “shall not” consider the issue.
Under Bensenville/Wheaton, the party who tendered the allegedly permissive subject could file a ULP against the objecting party.
Both parties could file a DR Petition with the General Counsel.
The Board/GC decision is binding on the interest arbitrator.
80 Ill. Admin. Code (k); City of Wheaton
BEG

15. Health Insurance
Wheaton Firefighters v. ISLRB, 2016 Il App (2nd)
City of Danville, 31 PERI 165 (ILRB GC 2013)
City of Danville, 26 PERI 32 (ILRB GC 2010)
BEG

16. Employee Sick Leave Act
BEG

17. Employee Sick Leave Act
BEG

18. Employee Sick Leave Act
Mid-term bargaining
Bargaining For A New Or Successor Agreement
The Union proposes adding language to expand sick leave as per the Sick Leave Act. Mandatory or Permissive?
The Employer refuse to expand sick leave benefits pursuant to the Act. Mandatory or Permissive?
Several arguments
Mandates Act
Collective Bargaining Exception in the Sick Leave Act
Section 15 Preemption
Definition of an Employer
BEG

19. Zipper Clause Broad Zipper Clauses Narrow Zipper Clauses
Mt. Vernon Educ. Assoc., 278 Ill. App. 3d 814, 816 (4th Dist )
BEG

20. Broad Zipper Clause
The parties acknowledge that during the negotiations which resulted in this Agreement, each had the unlimited right and opportunity to make demands and proposals with respect to any subject or matter not removed by law or ordinance from the area of collective bargaining, and that the understandings and agreements arrived at by the parties after the exercise of that right and opportunity are set forth in this Agreement. Therefore, the City and the Union, for the duration of this Agreement, each voluntarily and unqualifiedly waives the right, and each agrees that the other shall not be obligated, to bargain collectively with respect to any subject or matter, whether or not referred to or covered in this Agreement, even though such subjects or matters may not have been within the knowledge or contemplation of either or both of the parties at the time they negotiated or signed this Agreement. The Lodge specifically waives any right it might have to impact or effects bargaining for the life of this Agreement.
BEG

21. *Other General Counsel Decisions
APPOINTMENT TO NON-BARGAINING UNIT POSITION
Libertyville & IAFF, S-DR (2004)
Elk Grove Village & IAFF (In Binder under Village of Oakbrook) (1997)
AUXILIARY POLICE OFFICERS
Westchester & IL FOP Labor Council, S-DR-91-3 (1991)
CIVIL SERVICE PROCEDURE ADOPTION
Streamwood & AFSCME, S-DR-1 (1986)
COMMITTEE PARTICIPATION
Chicago & IL FOP Labor Council, L-DR & L-DR (2004)
Wilmette & SEIU, Local 73, S-DR (2002)
BEG
*GC Decisions are non-binding, advisory opinions

22. *Other General Counsel Decisions
COMPANY STRENGTH
Rockford & IAFF, Local 413, S-DR (2013)
COMPETITIVE BIDDING
Chicago & IL FOP Labor Council, L-DR & L-DR (2004)
DISABILITY PAY
Arlington Heights & IAFF, Local 3105 (1990)
DRUG TESTING AND BFPC
Posen & IL FOP Labor Council, S-DR (2011)
DUES CHECKOFF REVOCATION
Fairview Heights & IUOE, Local 148, S-DR-91-4 (1991)
DUTY FREE LUNCH PERIOD
Arlington Heights & IAFF, Local 3105, S-DR (1997)
ENGINEER SELECTION
Elgin & IAFF, Local 439, S-DR (2013)
ENTIRE AGREEMENT/ZIPPER CLAUSES
Schaumburg & IAFF, Local 4092, S-DR (2012)
Madison & PBLC, S-DR (2011)
FIRE DEPARTMENT PROMOTIONAL ACT ISSUES
Elk Grove Village & IAFF, Local 2340, S-DR (2005)
FITNESS FOR DUTY SELECTION STANDARDS
Lake Zurich & IAFF, Local 3191, S-DR (2013)
FOREIGN FIRE FUND TAX ISSUES
Wilmette & SEIU, Local 73, S-DR (2002)
GRIEVANCE FILING LIMITATIONS
Skokie & IL FOP Labor Council, S-DR (2010)
GRIEVANCE PROCEDURE AND SUSPENSIONS, DEMOTIONS, OR DISMISSALS
Rock Island & IAFF, Local 26, S-DR (2011)
Taylorville & PBLC, S-DR (2005)
Riverdale & Riverdale Professional Firefighters, Local 3580, S-DR (2002)
DUTY OF FAIR REPRESENTATION
Arlington Heights & IAFF, Local 3105, S-DR-91-1 and 2 (1990)
HEALTH INSURANCE, Competitive Bidding
Chicago & IL FOP Labor Council, L-DR & L-DR (2004)
HEALTH INSURANCE, Limiting Arbitrator’s Discretion
BEG
*GC Decisions are non-binding, advisory opinions

23. *Other General Counsel Decisions
HOLIDAY ROUTINE
Wilmette & SEIU, Local 73, S-DR (2002)
IN-SERVICE TRAINING PERIOD
Highland Park & Teamsters, Local 714, S-DR-96-1 (1996)
JOB DESCRIPTIONS ATTACHED TO CBA
Schaumburg & IAFF, Local 4092, S-DR (2012)
LAYOFFS
Decatur & IAFF, Local 505, S-DR (2011)
Decatur & IAFF, Local 505, S-DR (2011)
LEGISLATIVE COST INCREASES
Arlington Heights & IAFF, Local 3105, S-DR-91-1 and 2 (1990)
LIGHT DUTY
MAINTENANCE OF BENEFITS
MANAGEMENT RIGHTS
Rockford & IAFF, Local 413, S-DR (2013)
Skokie & IL FOP Labor Council, S-DR (2010)
Elk Grove Village & IAFF, Local 2340, S-DR (2005)
NON BARGAINING UNIT, Applicability of contract provisions
Wilmette & SEIU, Local 73, S-DR (2002)
OVERTIME
Lombard & IAFF, Local 3009, S-DR (1999)
Elk Grove Village & IAFF, Local 3398 (1997)
PARAMEDIC CERTIFICATION
PARAMEDIC DECERTIFICATION
PERFORMANCE EVALUATIONS
Carbondale & IL FOP, No. S-DR (2013)
PROMOTIONAL CRITERIA
Wilmette & SEIU, Local 73, S-DR (2002
PROMOTIONS (To non-bargaining unit position)
Libertyville & IAFF, Local 3892 (2004)
PROVISION OF BEDS, LINENS, ETC.
RESIDENCY REQUIREMENT
Country Club Hills & Teamsters, Local 726, S-DR (1999)
BEG
*GC Decisions are non-binding, advisory opinions

24. *Other General Counsel Decisions
SUPERSEDING ISSUES
Streamwood & AFSCME, S-DR-1 (1986)
UNION REPRESENTATION IN GRIEVANCE – CERTIFIED or DECERTIFIED
Sangamon County & IL FOP Labor Council and Teamsters, S-DR-94-1 (1994)
VACATION LEAVE
Batavia & IL FOP Labor Council, S-DR (2012)
VEHICLE USE, Employer
Wilmette & SEIU, Local 73, S-DR (2002)
VEHICLE USE, Personal
McHenry & SEIU, Local 73, S-DR (2011)
WELLNESS EXAM SELECTION STANDARDS
Lake Zurich & IAFF, Local 3191, S-DR (2013)
WORK STANDARDS
Carbondale & IL FOP, No. S-DR (2013)
WORKING OUT OF CLASS
Elgin & IAFF, Local 439 (S-DR ) 2013
ZIPPER CLAUSE
Danville & PBLC, S-DR (2013)
Skokie & IL FOP Labor Council, S-DR (2010)
Ottawa & AFSCME, S-DR-92-1 (1992)
Schaumburg & IAFF, Local 4092, S-DR (2012)
Madison & PBLC, S-DR (2011)
RETIREMENT INCENTIVE
Hickory Hills & MAP, S-DR (2002)
SENIORITY BASED SHIFT ASSIGNMENT
Wilmette & SEIU, Local 73, S-DR (2002)
Evergreen Park, S-DR-62-2 (1996)
SENIORITY, Promotions
Elk Grove Village & IAFF, Local 2340, S-DR (2005)
SHIFT ASSIGNMENTS
SHIFT AND STATION BIDDING
Arlington Heights & IAFF, Local 3105, S-DR-91-1 and 2 (1990)
SHIFT MECHANICS
Elgin & IAFF, Local 439 (S-DR ) 2013
SOLICITATION
STAND DOWN TIME
Arlington Heights & IAFF, Local 3105, S-DR (1997)
BEG
*GC Decisions are non-binding, advisory opinions

25. Mandatory Subjects of Bargaining
Illinois Municipal League
2017 Municipal Attorneys Seminar
Presented by Benjamin E. Gehrt
BEG
6133 N. River Road | Suite 1120 | Rosemont, IL 60018
(847) Main |
© CLARK BAIRD SMITH LLP 2016