The Illinois Public Labor Relations Act;
Determining Bargaining Units in Park Districts

July 1, 1984 is the effective date of the new Illinois Public Labor Relations Act. Is your park district ready for it?

By Allan J. Harrison

On July 1, 1984, the Illinois Public Labor Relations Act will take effect and employment relations in many if not all districts will enter a new era. At this point it would be rash to make exact predictions about the Act's impact. Nonetheless, based on experience in the private sector under the National Labor Relations Act and the many other states that had similar legislation for a number of years, one can make a few general observations that may prove useful to elected officials and administrators of park and recreation districts.

This brief article is intended only to discuss certain basic concepts concerning the coverage of the law and what may or may not constitute appropriate bargaining units.

First of all one must note that only local government employers who have twenty five or more employees are covered by the new law. Two points must be made, however: first, "employee" is defined in the act in a way which excludes certain persons, such as supervisors, from that definition and hence from the count. Second, the Act is applicable to local governments that do have recognized bargaining units as of July 1, 1984, even though they may have fewer than twenty five "employees."

The two most difficult questions concerning the definition of "employee" for park districts would appear to turn on the definitions of:

1. "supervisor"

2. "short term employee" The definition of supervisor under the Act is as follows:

(q) "Supervisor" is an employee whose principal work is substantially different from that of his subordinates and who has authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, direct, reward, or discipline employees, or to adjust their grievances, or to effectively recommend such action, if the exercise of such authority is not of a merely routine or clerical nature, but requires the consistent use of independent judgment. The term "supervisor" includes only those individuals who devote a preponderance of their employment time to exercising such authority State supervisors notwithstanding. (Section 3 pp. 5-6 of Act)

One major gray area for park districts is the status of the employees who run their various educational and athletic activities. Generally these are people with professional training and degrees in such fields as leisure studies. Now there really is no great question that these people are "professionals" as defined in the Act, but "professional employees" are employees within the meaning of the Act, are counted towards the twenty five employee threshold, and are protected in their rights to choose a bargaining representative and engage in collective bargaining. Park Directors may argue strongly that these people are supervisors since they do direct programs and regularly hire people on a contract basis to run educational and athletic programs. This writer is more skeptical, however, because such persons are really not telling people what to do; and they do not hire, or discipline. What they do is contract out work to other professionals who are independent contractors and not employees, and these contractors do not require direct supervision. Such professionals seldom if ever can discipline other employees, such as groundskeepers, although they may have some authority over some part time employees. Again these may not be "employees" if they are determined to be "short term employees" within the meaning of the Act.

In short, these employees appear to occupy a professional position of setting up and conducting programs. The essence of their job duties turns on their professional knowledge and skills in providing activities for the public. It does not turn on their power to direct other employees in the performance of their tasks.

Park districts also have in their maintenance divisions a number of working foremen who have some authority over others but also work alongside these employees and perform essentially the same work most of the time. The law, however, requires that their work be substantially different from that of their subordinates in order to be considered supervisors. Another question is whether they actually effectively exercise authority over the other workers or simply report employee infractions or problems to their superiors who then make the decisions regarding discipline, promotion, etc. In the latter case they are really only working monitors of the other employees.

Short term employees are defined as:

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(p) "Short-term employee" is an employee who is employed for less than two consecutive calendar quarters during a calendar year and who does not have a reasonable assurance that he or she will be rehired by the same employer for the same service in a subsequent calendar year. (Section 3 p. 5 of Act) A literal reading of this means that anyone who does not work through two full consecutive calendar quarters (i.e., January 1 - July 1, April 1 - October 1, July 1 - January 1, October 1 - April 1) is a short term employee and is not covered by the Act. However, there is no distinction made for employees who are part time. Consequently, those who are part time a portion of the year and full time another portion may be considered employees. Such employees, whose work time spans two consecutive calendar quarters, will be considered employees if they have "reasonable assurance" that they will be rehired. In park districts, where it is the custom to hire high school and college students on a part and full time basis until they have completed their school work, one can probably conclude these student employees have reasonable assurance of continuing employment and hence (if their work spans two calendar quarters each year) are not short term employees and are covered by the Act and will count towards the total of twenty five employees.

BARGAINING UNIT DETERMINATION

The importance of bargaining unit determination cannot be overemphasized. What positions and departments are included or excluded from a given bargaining unit can affect not only whether or not employees choose to bargain and whom they choose as bargaining representatives, but also has direct effects on the nature of the bargaining that takes place and management's ability to efficiently run the governmental unit.

A couple of simple examples will illustrate this effect of the bargaining unit determination on the selection or non-selection of bargaining representatives.

The new Act also is applicable to park districts that already have recognized bargaining
units as of July 1, 1984, even though they may have fewer than 25 employees.

Example I: Suppose a given department votes eight to five for XYZ union to represent it, and another department votes ten to five for no representative. Were both departments in a common unit, there would be no representative. If they were two separate units, the first department would be represented. The opposite result would occur were the "for organization" and "no organization" rates reversed, i.e., both departments would bargain if combined and the second would bargain only if the departments were separate units.

Example 2: In a unit of thirty employees there might be twenty-two non-supervisory employees, three employees who are clearly supervisory and five who may or may not be supervisory employees. For the sake of discussion suppose twelve of the non-supervisory employees were to vote for a union and ten for no organization, the five questionable employees could well determine the outcome. If ruled to be supervisors they are excluded from the bargaining unit and do not vote at all.

How the bargaining unit is defined may also determine which labor organization is selected. A given organization may have its support concentrated in one department but be unable to prevail against another organization if that department is placed in a larger bargaining unit where the other labor organization has broad support.

Once bargaining units are determined and bargaining takes place, the more units established, the more bargaining that is required. More important than this, however, is the fact that an employer who negotiates a number of contracts is often in a difficult position once he makes a concession to any one of the groups. The others rightly or wrongly assume that they will prevail on the same point and take that concession for granted. Consequently, they concentrate on some other matter. The employer thus is faced with a situation that in effect "ratchets" his concessions higher as he bargains with each group.

Another problem lies in the fact that small units are often more difficult to bargain with than a unit containing a large and varied membership. The larger the unit the greater the pressure on the members to compromise among themselves and to develop a set of proposals not completely to the satisfaction of any given group of employees within the total unit. Also, a large group is by its very size required to delegate considerable authority to a bargaining committee. In a small unit of say, five people, one often finds less willingness to compromise since each member tends to see himself as one of a small group and is unwilling therefore to recognize the need for compromise with his fellow employees. Moreover, personal frictions, animosities, etc., are sharpened in a small group. Indeed, all five may want to be at the bargaining table and it may be impossible for the employer to receive any kind of consensus proposal from the group.

The most serious problem with multiple units, however, is their potential for seriously restricting the employer's direction of the workforce. If one has five separate bargaining units with individual contracts, the employer's ability to assign work, promote, lay off and transfer among the units, that is from one unit to the other, etc., becomes very difficult if not impossible. The contract of each group will tend to protect and secure the work of that group to the unit, to the exclusion of those employees outside the bargaining unit.

A similar problem can arise when an employer has excluded a number of employees as supervisors who spend a good deal of their time doing work that bargaining unit employees also perform. Unions often obtain what is referred to as a "bargaining unit work" clause (such clauses typically prohibit non-bargaining unit employees from performing bargaining unit work except in the case of emergencies or for instructional purposes). The employer who succeeds in excluding a large number of working supervisors from a bargaining unit and then agrees to a bargaining unit

(Continued on p. 43)

ABOUT THE AUTHOR: Allan J. Harrison is Professor of Labor and Industrial Relations with the Institute of Labor and Industrial Relations at the University of Illinois, Champaign-Urbana campus. A 14-year veteran with the Institute, Harrison is a graduate of the University of Illinois with a Bachelor's degree in liberal arts and Master's degree in labor relations.

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(Cont. from p. 9)

work clause will find himself with a rather expensive group of people who have little to do a good part of the time.

In summary, although the criteria for bargaining units leaves broad discretion to the Labor Relations Board, the employer and the union can in many cases work out a livable bargaining unit. This article has simply intended to point out two specific definitional problems in the Act, as these definitions affect park districts, and has attempted to alert park management to the vital importance of bargaining unit determination. If a district has not already established bargaining units, which the Act in effect will lock in July 1, 1984, then the district still has some leeway to think ahead and plan accordingly and may wish to avoid problems by acting before July 1.

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