On June 14, 2009 the Illinois legislature passed P.A. 96-0598 and sent it to the Governor for signature. The Act became effective on January 1, 2010. P.A. 96-0598 amended the Illinois Public Labor Relations Act, 5 ILCS 315/1, to provide significant new rights for public employees in bargaining units of less than thirty-five (35) employees. P.A. 96-0598 amended Section 7 of the Illinois Public Labor Relations Act by adding the following language:
"Notwithstanding any other provision of this Section, whenever collective bargaining is for the purpose of establishing an initial agreement following original certification of unit with fewer than 35 employees, with respect to public employees other than peace officers, fire fighters, and security employees, the following apply:
(1) Not later than 10 days after receiving a written request for collective bargaining from a labor organization that has been newly certified as a representative as defined in Section 6(c), or within such further period as the parties agree upon, the parties shall meet and commence to bargain collectively and shall make every reasonable effort to conclude and sign a collective bargaining agreement.
(2) If anytime after the expiration of the 90-day period beginning on the date on which bargaining is commenced the parties have failed to reach an agreement, either party may notify the Illinois Public Labor Relations Board of the existence of a dispute and request mediation in accordance with the provisions of Section 14 of this Act.
(3) If after the expiration of the 30-day period beginning on the date on which mediation commenced, or such additional period as the parties may agree upon, the mediator is not able to bring the parties to agreement by conciliation, either the exclusive representative of the employees or the employer may request of the other, in writing, arbitration and shall submit a copy of the request to the board. Upon submission of the request for arbitration, the parties shall be required to participate in the impasse arbitration procedures set forth in Section 14 of this Act, except the right to strike shall not be considered waived pursuant to Section 17 of this Act, until the actual convening of the arbitration hearing."
Prior to the amendment of the Act by P.A. 96-0598, only security employees, peace officers and firefighters were entitled to the use of the interest arbitration procedures provided by Section 14 of the Illinois Public Labor Relations Act, 5 ILCS 315/14. Interest arbitration is a means of resolving contract disputes through the use of a neutral third party. Under the Illinois statutory scheme, the arbitrator selected by the parties has the authority to impose on the parties the terms of a collective bargaining agreement that they were unable to otherwise reach through negotiations. Because security employees, peace officers and firefighters are specifically prohibited from striking by Illinois law, the interest arbitration process provides the necessary ability to reach a contract in the event of impasse. See 5 ILCS 315/18.
Section 14 of the Act sets out a detailed list of factors to be considered and procedures with the purpose of providing guidance to the arbitrator and the parties. On economic issues the arbitrator must adopt the proposal of one of the parties that is most reasonable in light of the factors set out in Section 14. On all other issues, the arbitrator may fashion a resolution, again, after considering the factors set out in Section 14(h) of the Act. 5 ILCS 315/14(h).
The changes incorporated by P.A. 96-0598 now open this world of interest arbitration to a wider audience. Interest arbitration is now available to all groups of public employees, in bargaining units of less than thirty-five (35) who are bargaining an initial labor agreement. This change means that all public employees negotiating their first collective bargaining agreement will be entitled to interest arbitration.
The amendments to Section 7 of the Act set out specific time frames relative to the commencement of the bargaining process for the initial contract. The amendment also provides that either party may seek the services of a mediator if they have not reached agreement after ninety (90) days from the start of bargaining. If the parties are unable to reach agreement within thirty (30) days after the commencement of mediation, the dispute may then be submitted to interest arbitration according to Section 14 of the Act. During the process, the parties may agree that any of these time frames may be extended.
The language of P.A. 96-0598 does not address the retroactive application of this change to bargaining units which were certified by the Labor Board prior to January 1, 2010. A real question exists as to the application of this amendment to those bargaining units of less than thirty-five (35) employees that were certified prior to January 1, 2010 and had been bargaining for a contract prior to the effective date of the law. Parties that have bargaining for months, or perhaps years, may now find themselves confronted with the prospect of interest arbitration.
How this change will affect the bargaining relationship of public employers and their employees remains to be seen. Certainly, in today’s economic climate, public employees gain the advantage of not having to use a strike to win the concessions they would like to see. As both public employers and employee bargaining units approach negotiations for an initial collective bargaining agreement, P.A. 96-0598 will cause them to evaluate their respective positions in light of the prospect of interest arbitration.
John Kelly is a shareholder with the law firm of Ottosen Britz Kelly Cooper & Gilbert, Ltd. in Naperville. Mr. Kelly focuses his local government practice on public employment, pension, and administrative law as it relates to police and fire departments and public safety communications. You can reach Mr. Kelly by e-mail at email@example.com.