Collective bargaining is a difficult art to master. Communication is essential: one must speak and write not only so as to be understood but so as not to be misunderstood. It is especially critical that, before one concludes that a deal has been reached at the bargaining table, one must be certain not only that both sides are in agreement with the terms of the deal but that those terms have been memorialized in a writing the interpretation of which is accepted by both sides.
These principles are exemplified by the recommended decision and order issued on February 27, 2105 by Illinois Labor Relations Board Administrative Law Judge Anna Hamburg-Gal in City of Park Ridge, Case Nos. S-CA-13-197 and S-CB-047. In City of Park Ridge, the City and International Union of Operating Engineers, Local 150, the Union representing the City’s public works employees, had engaged in bargaining for an agreement to go into effect May 1, 2013. A significant issue in negotiations related to the amount and calculation of the premium contribution to be paid by employees toward the cost of employer-provided health insurance coverage. One of the problems in that regard was that the Union sought the retention of dollar caps on contributions, while the Employer wanted percentage contributions.
Ultimately, the parties agreed on a concept whereby percentages would be used to establish dollar caps, but, at least according to the ALJ, never reached a meeting of the minds as to what those percentages would be or how the resulting dollar caps would be calculated.
Both the City and the Union contended that an agreement had been reached on this issue during bargaining, and both charged the other with the unfair labor practice of refusing to implement the terms of a collective bargaining agreement reached at the bargaining table. The ALJ, however, rejected both the City’s and the Union’s contentions and concluded that no agreement had been reached. But since the City implemented its version of the agreement and began deducting health insurance contributions based on that version, the ALJ found that the City had engaged in a refusal to bargain unfair labor practice by unilateral implementation of a term or condition of employment constituting a mandatory subject of bargaining.
During collective bargaining, the parties often engage in short-hand references to proposals and agreements. These short-hand references are fine if both sides understand their meaning in the same way. In the City of Park Ridge case, it appears that each side understood certain percentage references differently. Moreover, there was no document signed or initialed at or after the dispositive meeting evidencing a tentative agreement (“TA”) as to the terms. And while the parties exchanged and reviewed drafts of the purported agreement prior to approval of the City’s version by the City Council, the ALJ concluded that the City and the Union did not agree on the interpretation of those drafts with respect to the employee premium contribution issue.
At one point in the description of events, the ALJ stated that, in reviewing a draft of the agreement, the Union representative “did not ensure that the dollar amounts set forth in the insurance cap chart reflected the Union’s understanding of the agreement. Rather, she trusted that the numbers were correct.” Without being critical of the Union representative (who is, in fact, an experienced and respected labor attorney), it must be observed that trust is a necessary but not sufficient attribute of collective bargaining. One must always verify and memorialize tentative agreements, preferably at the bargaining table (before second thoughts emerge), and, as this case teaches us, (1) avoid short-hand references that can be misunderstood and (2) use examples and clarifying terminology where necessary to be sure that both sides understand a concept the same way.