In collective bargaining, the parties often have to address disputes over permissive and mandatory subjects of bargaining. This is particularly important in police and fire negotiations. Police officers and firefighters in Illinois are prohibited from going on strike. Instead, they have the right to compulsory interest arbitration. However, one party alone cannot submit a permissive subject of bargaining to an arbitrator for resolution.
Mandatory subjects of bargaining are subjects that neither party can refuse to negotiate (wages, hours, terms and conditions of employment). If the parties to a police or fire agreement reach impasse, mandatory subjects of bargaining must be submitted to arbitration. Permissive subjects of bargaining are subjects that the parties are not required to negotiate, but may choose to negotiate voluntarily. Permissive subjects cannot be bargained to impasse, and a party may to choose to stop negotiating over a permissive subject of bargaining at any time. In interest arbitration, arbitrators cannot decide a permissive subject of bargaining unless the parties mutually agree to him/her doing so.
In Skokie Firefighters Union, Local 3033 v. ILRB, the parties were negotiating a successor agreement to their 2009 – 2010 agreement. In 2009 – 2010, the parties had agreed to different terms for promotion than those provided in the Fire Department Promotion Act. During negotiation, the Union submitted a proposal changing the terms for promotion to lieutenant. The proposal was made pre-arbitration, and the Village did not respond to it. Ultimately, the court held that promotional standards are permissive subjects of bargaining. However, in this case, the issue was submitted to the arbitrator and Village proposed the status quo. The arbitrator agreed with the Village, finding that the parties’ promotional system was not “broken” and therefore did not need to be fixed. The Union filed an unfair labor practice ("ULP") charge against the Village after the arbitration hearing alleging that it failed to bargain in good faith over the promotional issue. The ILRB dismissed the ULP. The Union appealed the decision and the appellate court reversed the Labor Board, holding that the Village did commit an unfair labor practice.
The court held that the arbitrator in Skokie should not have decided the promotional issue because it was a permissive subject of bargaining. The court noted that the Promotion Act sets the “baseline” standards for promotion. Even though the union waived certain rights set forth in the Promotion Act during the 2099 – 2010 negotiations, the court held that when a successor agreement is negotiated, the Union can take the position that the slate is wiped clean and that the standard set forth in the promotion act are the starting point for any future negotiations. The court held that the Union’s effort to negotiate the promotional standards in this case indicated that it was unwilling to waive its rights regarding promotional standards for the 2010 – 2014 agreement. The court went on to hold that the Village cannot force a waiver of the Union’s right to insist on, at a minimum, the standards set forth in the Promotion Act as terms for promotion in the agreement.
Interestingly, the court held that the submission of a permissive subject of bargaining to an arbitrator in interest arbitration does not violate the Labor Relations Act. Only when the arbitrator rules on the permissive subject, is the Act violated. Had the arbitrator not ruled on the promotional issues, there would have been no ULP.
In this case, the Village had two choices. It could have negotiated with the Union for waivers of its rights under the Promotion Act or it could have agreed to the statutory promotion scheme under the Act. Neither of these things happened in this case, and the ULP resulted. The court held that “When an employer insists to impasse on a permissive subject and its insistence results in prejudice to the union members’ established rights, the employer has committed an unfair labor practice.”
Employers must remember that just because a union negotiates a permissive subject and waives certain statutory rights in one agreement does not always make the subject mandatory in the next agreement. The union, or the employer for that matter, can take the position that the issue will revert to the statutory mandates for purposes of the successor agreement.
Please do not hesitate to contact an Ancel Glink attorney if you have questions regarding your obligations under the holding in Skokie or to discuss any other matter related to collective bargaining or labor relations.
