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Under the New Public Labor Relations Act
How Park District Management Can
With the adoption of the Illinois Public Labor Relations Act (S.B. 536), park district employees now have the statutory right to organize and to elect a labor organization to represent them in collective bargaining negotiations. Under this new act, park district management personnel may commit "unfair labor practices" by taking actions which interfere with employee rights to organize or which breach the district's duty to negotiate with an exclusive bargaining representative. Violation of any of the act's unfair labor practices provisions can result in imposition of injunctions, reinstatement and back pay against the park district. By Philip H. Gerner III In the next several months, park district management personnel may be required to substantially realign their current employment and personnel practices to avoid violating the unfair practices provisions of the Illinois Public Labor Relations Act (S.B. 536). The statute, effective on July 1, 1984, grants public employees the right to organize and negotiate terms and conditions of employment through a collective bargaining representative of their choice. In order to protect the rights of employees to organize and bargain collectively, the act imposes various prohibitions and affirmative duties upon public employers. If the employer violates certain enumerated provisions of the act, the Illinois State Labor Relations Board (hereinafter referred to as the "Labor Board") may find that the employer's conduct constitutes an unfair labor practice. As the administrative agency authorized to monitor and enforce S.B. 536, the Labor Board may then order any remedies it deems appropriate, including injunctive relief, reinstatement and back pay. This article will focus upon two of the most troublesome of the five employer unfair labor practices set forth in S.B. 536,1 and will suggest practical methods to minimize the risk of violations under such provisions. The two unfair labor practices concern: (a) interference, restraint, and coercion with regard to employee rights and (b) refusal to bargain in good faith. Because these unfair labor practices provisions substantially parallel those contained in the National Labor Relations Act, we have principally reviewed administrative and court decisions arising under that federal statute for guidance in interpreting S.B. 536. A. INTERFERENCE, RESTRAINT OR COERCION Assuming a park district's employees are not currently represented by a union, one of the first problems its director may confront under S.B. 536 is how to lawfully respond to a union's efforts to organize the district's employees. In responding to union organizational activities, a director must carefully consider any proposed action in the context of the restrictions imposed by the unfair labor practices provisions of the act. Section 10(a)(l) of the act states, in pertinent part: "It shall be an unfair labor practice for an employer or its agents: (1) to interfere with, restrain or coerce public employees in the exercise of the rights guaranteed in this Act ..." Section 10(a)(l) also prohibits an employer from dominating, interfering with, or contributing financial or other "support" to any labor organization. Although it is generally unlikely that park district management would attempt to promote or support a labor organization, there is one particular situation in which a potential problem could arise. In some park districts, a labor organization may already represent a share of the district's employees, or the district may deal on a "meet and confer" basis with an employee group. Park district management may view representation by the current union or employee group as preferable to representation by other organizations and seek to enter a "sweetheart deal" with the union or group. This type of arrangement, however, constitutes unlawful "support" of a labor organization under Section 10(a)(l). We have limited the following discussion of Section 10(a)(l) to management conduct which may "interfere with, restrain or coerce" park district employees within the meaning of that provision. Our analysis focuses upon three types of conduct which are likely to present problems under Section 10(a)(l): (1) restricting union access to facilities, (2) making statements or questioning employees concerning union representation, and (3) granting benefits to employees. 1. Restricting Union Access to Facilities Section 10(a)(l) prohibits park district management from restraining employees in the "exercise of the rights guaranteed in this Act." S.B. 536 guarantees public employees certain rights, including freedom of association, self-organization, and designation of collective bargaining representatives of their own choosing. Since employees cannot fully exercise these Illinois Parks and Recreation 10 May/June 1984 rights without having an opportunity to meet with union representatives, a park district may commit an unfair labor practice by prohibiting union organizers access to its facilities. By permitting wholly unrestricted union access to its facilities, however, park district management may suffer declining employee job productivity and potential opposition from resident users of its facilities. Consequently, the park district may decide to consider adoption of a "no-solicitation" rule which denies union representatives access to its facilities during working hours. To avoid unfair labor practice charges, a no-solicitation rule must be narrowly drafted so that the union is not deprived of the right to communicate with park district employees during non-working hours. Park district management should also review and revise its policies, if necessary, to make certain that any no-solicitation rule applies equally and consistently to other organizations (e.g., charities or outside vendors). As a practical matter, however, it may be difficult for park district management to implement and effectively enforce such a no-solicitation rule. Unlike the work areas of most private companies, a park district's park and recreational facilities are open to the public and often scattered throughout the district. Nonetheless, while these factors may reduce the district's ability to enforce a no-solicitation rule, they may also render the union's organizing attempts less effective. 2. Making Statements or Questioning Employees Concerning Union Representation In addition to granting public employees rights of association and self-organization, S.B. 536 expressly authorizes such employees to freely select an exclusive bargaining representative. Under Section 10(a)(l), an employer commits an unfair labor practice by making statements which may tend to coerce employees in deciding whether or not to join a particular union. In determining whether an employer's statements are coercive, the Labor Board will disregard the employer's motivation or intent and simply assess the statement's probable impact upon a reasonable employee. For example, a director's statement to a group of employees that recognition of the union will lead to substantial layoffs of staff could constitute an unfair labor practice. In addition, because Section 10(a)(l) applies to an employer or its agents, a park district may be charged with an unfair labor practice based upon coercive statements by park board members, as well as assistant directors, business managers and all other management personnel, including front-line supervisors. S.B. 536 does, however, preserve the public employer's right to make non-coercive statements to employees. Section 10(c) permits an employer to state his views or opinions provided that any such expression "contains no threat of reprisal or force or promise of benefit." Unfortunately, it is very difficult to predict which types of statements the Labor Board is likely to find contain an unlawful threat or promise of benefit. In general, any statement by park district management which implies that recognition of the union will necessarily result in some type of retaliation against employees (e.g., withholding of benefits) is likely to represent an unfair labor practice. "S.B. 536 guarantees public employees certain rights, including freedom of association, self-organization, and designation of collective bargaining representatives of their own choosing." During the union's organizing campaign, park district managers should also resist the temptation to question employees concerning their support for the union. Polling or interrogation of employees may result in an unfair labor practice charge unless certain precautions are taken. At a minimum, management personnel must inform the employee of the purpose of the poll, assure the employee against possible management reprisals, and conduct the questioning by secret ballot. Despite such safeguards, there is certainly no guarantee that the results of the poll will be accurate. In fact, in many instances the risk of an unfair labor practice may outweigh the potential benefits of polling employees. 3. Granting Benefits to Employees Prior to passage of S.B. 536, a park district's decision to grant its employees increased benefits depended primarily upon budgetary factors. After the effective date of the new act, however, a park district's decision whether to increase (or decrease) employee benefits should also involve consideration of the district's past practices. If the union has recently begun efforts to organize park district employees, the district's unilateral grant of increased wages or benefits may be found an unlawful interference with protected employee rights to organize in violation of Section 10(a)(l). Conversely, the district's unilateral reduction in employee benefits may also constitute an unfair labor practice if the Labor Board views it as a reprisal for union organizing efforts. During the union's organizational campaign, a park district must consciously attempt to treat its employees in a manner which is consistent with its established past practices. If the park district has never granted its employees holiday bonuses, for example, it should not initiate such a practice during the organizational campaign. Similarly, the district's assistant director should not begin soliciting employee grievances if management has not undertaken such responsibilities in the past. Park district officials should, prior to taking any official action, carefully consider the timing of any proposals which affect employee benefits or working conditions. If the proposed action is inconsistent with the district's past practice, it should not be adopted unless the reason for taking such action is legitimate and wholly unrelated to the presence of the union. B. DUTY TO BARGAIN If the union is successful in its organizational campaign and becomes the exclusive bargaining representative (by winning a representation election or gaining voluntary employer recognition), S.B. 536 imposes an affirmative obligation upon the public employer to bargain with the union. According to Section 7 of the statute, the employer must meet with the union "at reasonable times" and "negotiate in good faith with respect to wages, hours and other conditions of employment." Section 10(a)(4) of the act reinforces the duty to bargain by declaring it an unfair labor practice for any employer:
"to refuse to bargain collectively in good faith with a labor organization which is the Illinois Parks and Recreation 11 May/June 1984 exclusive representative of public employees in an appropriate unit, including, but not limited to, the discussing of grievances with the exclusive representative." To begin to understand what types of conduct will violate Section 10(a)(4), it is necessary to address the following issues: (1) What subjects must the parties bargain? (2) What constitutes bargaining in "good faith"? "Section 10(c) permits an employer to state his views or opinions [to employees] provided that any such expression 'contains no threat of reprisal or force or promise of benefit."' 1. Subjects of Bargaining An employer need not bargain each and every item the union proposes for negotiation. Section 4 of the act expressly states that an employer is not required to bargain over matters of "inherent managerial policy," including the employer's functions, organizational structure and budget, standards of services, and selection and direction of new employees. However, an employer must: "bargain collectively with regard to policy matters directly affecting wages, hours, and terms and conditions of employment as well as the impact thereon upon request by employee representatives." (Emphasis added.) "Wages, hours and terms and conditions of employment" are referred to as mandatory items of bargaining and include such items as benefit plans, work rules, overtime compensation, and grievance procedures. If the union requests negotiation of a mandatory item, the park district's negotiators must bargain the issue in good faith until the parties reach either agreement or impasse (i.e., stalemate). The union may also request negotiation of certain items not affecting wages, hours and terms and conditions of employment. The park district can properly refuse to bargain such non-mandatory (permissive) items without subjecting itself to an unfair labor practice charge. Neither party may seek negotiation of any items which, if included in the agreement, would violate S.B. 536 or public policy (e.g., sequence of layoffs which dismisses female employees first). 2. Bargaining in Good Faith If the union requests negotiation of a mandatory item of bargaining (e.g., amount of sick days), the park district has a duty to bargain the subject in good faith. The statute does not require the district, however, to make any concession or agree to any proposal submitted by the union. From the standpoint of the park district's negotiating team, the obvious question is: What constitutes bargaining in "good faith"? While there is no simple answer, several practical conclusions can be drawn. First, "good faith" bargaining requires that the park district's representatives do more than simply "meet and confer" with the union regarding wages, hours and terms and conditions of employment. Secondly, certain conduct by the park district's bargaining team will always violate the duty to bargain in good faith: (1) refusal to meet face-to-face with the union at reasonable times (e.g., insistence on making bargaining proposals in writing through the mails); Although the park district need not say "yes" to the union's proposals, the duty to bargain in good faith generally requires that it offer counterproposals which are not obviously unacceptable. If the district's negotiating team offers counterproposals which are consistently unrealistic without providing any accompanying explanation, the Labor Board may characterize the district's conduct as "surface bargaining" and bring unfair labor practice charges under Section 10(a)(4). The Labor Board will probably be more inclined to bring such charges if members of the district's bargaining team or board of park commissioners have publicly adopted an unreasonably inflexible stance in negotiations. Accordingly, the district should protect itself by directing its management personnel and officials to refrain from making public comments concerning the district's bargaining strategy during pending negotiations. To minimize the risk of an '"Wages, hours and terms and conditions of employment' [under the new Act] are referred to as mandatory items of bargaining and include such items as benefit plans, work rules, overtime compensation, and grievance procedures." FOOTNOTE 1. "Section 10. Unfair labor practices, (a) It shall be an unfair labor practice for an employer or its agents: (1) to interfere with, restrain, or coerce public employees in the exercise of the rights guaranteed in this Act or to dominate or interfere with the formation, existence, or administration of any labor organization or contribute financial or other support to it; provided, an employer shall not be prohibited from permitting employees to confer with him during working hours without loss of time or pay; (2) to discriminate in any regard to hire or tenure of employment or any term or condition of employment in order to encourage or discourage membership in or other support for any labor organization. Nothing in this Act or any other law precludes a public employer from making an agreement with a labor organization to require as a condition of employment the payment of a fair share under paragraph (e) of Section 6; (3) to discharge or otherwise disciminate against a public employee because he has signed or filed an affidavit, petition, or charge or provided any information or testimony under this act; or (4) to refuse to bargain collectively in good faith with a labor organization which is the exclusive representative of public employees in an appropriate unit, including, but not limited to, the discussing of grievances with the exclusive representative; or (5) to violate any of the rules and regulations established by the Board with jurisdiction over them relating to the conduct of representation elections or the conduct affecting the representation elections." ABOUT THE AUTHOR: Philip H. Gerner III, attended St. Lawrence University in Canton, New York, (B.A. in Government and History, 1977) and Washington University School of Law in St. Louis, Missouri (J.D., 1980). He currently is an associate with Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., a law firm with offices in Chicago, Springfield, and Decatur. The firm specializes in public sector labor law. Illinois Parks and Recreation 12 May/June 1984 unfair labor practice charge, park district officials should consistently reiterate their continued intention to reach an agreement with the union. In conclusion, after the effective date of S.B. 536, park district management must carefully assess the potential consequences of its statements and conduct toward employees. If a union secures recognition, the district's negotiating team must be prepared to respond to the union's proposals in good faith. Therefore, as a preliminary matter, park district directors and management personnel should participate in available workshops, conferences, and in-service programs to facilitate their understanding of their obligations under S.B. 536. In addition, management personnel should thoroughly review current personnel policies and established past practices, particularly with respect to employee benefits. After reviewing the policies, the district may consider immediate adoption of any personnel and benefits changes which may become more difficult to implement after S.B. 536 goes into effect. At that point, members of the park district's management team can confidently and capably respond to the union's organizing efforts with less risk of violating the unfair labor practices provisions of S.B. 536.
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