by Michael Castaldo, Jr. and Alex Kaczmarek (Summer 2017)

In 2009 and 2010, the Skokie Firefighters Union and the Village of Skokie agreed on promotion practices that deviated from the minimum standards set forth in the Fire Department Promotion Act (“Promotion Act”) (50 ILCS 742/1 et seq.). However, during subsequent negotiations for the 2010-2014 collective bargaining agreement, the parties could not agree on promotion requirements and procedures for promotion to the rank of lieutenant.

When the Village arbitrated the promotion practices, the Union filed an unfair labor practice with the Illinois Labor Relations Board (“ILRB”). The ILRB dismissed the Union’s complaint and the Union filed for administrative review. The First District Appellate Court in Skokie Firefighters Union Local 3033 v. Illinois Labor Relations Board, State Panel, 2016 IL App (1st) 152478, disagreed with the ILRB and found that permissive subjects of bargaining could not be brought to arbitration.

During 2010-2014 negotiations, the parties exchanged proposals including the firefighters’ proposal to return to the standards outlined in the Promotion Act. The Village countered, submitting its desire to keep the same promotion standards agreed upon under the 2009-2010 collective bargaining agreement. Negotiations ultimately resulted in an impasse and the Union invoked compulsory interest arbitration. On the topic of promotions, the arbitrator ruled in favor of the Village, deciding that it was best not to change something that has been working and finding that the promotional practices bargained for under the 2009-2010 agreement should remain.

The arbitrator rejected the Union’s proposal to revert to the statutory baseline provided for in the Promotion Act. In its unfair labor practice charge, the Union claimed that the Village failed to bargain in good faith. The ILRB dismissed the complaint, ruling that the Village’s submission of a permissive subject of bargaining did not amount to an unfair labor practice.

On review, the appellate court reversed the decision of the ILRB. The court determined that promotion practices deviating from the Promotions Act are “permissive” subjects of bargaining. The court found that proposed permissive subjects of bargaining cannot be pursued to interest arbitration because those are terms that the parties may, but are not required to, voluntarily negotiate. By contrast, mandatory subjects of bargaining are those that the parties must negotiate and, if no agreement is reached, are subject to resolution by the interest arbitration proceeding. As a result, parties cannot negotiate permissive subjects of bargaining to impasse. Negotiations can be cut off by the party opposed to negotiating a permissive topic at any time without recourse.

Although the Promotion Act allows for agreements not delineated in the Act, choosing whether to conform to the Act or waive the statutory privilege is left up to the parties. If one party does not agree to waive the practices provided by the Act, then the other party is not allowed to force negotiations on this issue to interest arbitration. Consequently, in this case, the court found that the arbitrator was without authority to compel the Union to continue to accept the previously agreed upon promotion provisions. The court further found that the arbitrator’s finding for the Village was both prejudicial against the Union and without merit because it was beyond the arbitrator’s authority to decide.

Additionally, the court reversed the decision of the ILRB. Although submitting a permissive subject bargaining to an arbitrator is not an unfair labor practice on its own, the court held that when the arbitrator ruled for the Village, the Union was prejudiced and its members’ rights were violated. Section 10(a)(4) of the Illinois Public Labor Relations Act states that when employers refuse to bargain collectively in good faith, they have committed an unfair labor practice. 5 ILCS 315/10(a)(4) (West 2012). The court concluded that it was the Village’s improper submission of this subject to the arbitrator that caused the Union to lose its right to waive the Promotion Act. This constituted bad faith negotiations according to the court and, therefore, the Village committed an unfair labor practice.

This case is an important reminder that previously agreed upon permissive subjects of bargaining always remain permissive topics for future negotiations. Therefore, either side may refuse to continue negotiating the permissive topic’s provisions in the contract. Practically, employers should be cautioned against giving significant concessions to gain a particular term on a permissive subject of bargaining. In addition, the bargaining history of a concession given on a permissive subject should be maintained through notes that are readily available, or specifically stated in the contract. In subsequent negotiations, if one side seeks to remove the permissive topic from the labor contract, the other side may then propose that the parties also revert to the previous position on whatever was given to gain the permissive topic’s inclusion in the labor contract.

Parties should take care to know the laws behind the topics that they are negotiating and be aware of what topics are permissive or mandatory. Because promotional practices are permissive subjects of bargaining, each party may accept the default standards of the Promotion Act or to waive those standards and agree to deviations from the Promotion Act.