Strikes will be legally protected under the Acts, but how many will occur?
The author predicts that the vast majority of impasses will be settled at the negotiating table rather than on the picket line.

Now that the Illinois Educational Labor Relations Act (HB 1530) and the Illinois Public Labor Relations Act (SB 536) soon will be the law of the state, public employers and unions must follow new rules to resolve their negotiating impasses. In a nutshell, these new rules state that (1) the right to strike—rather than fact-finding or arbitration—is the preferred terminal step in the impasse resolution process, so the parties will determine their own settlements rather than have them imposed by outside neutrals; (2) mediation should be used before a strike begins; and (3) there is no legal barrier to the use of interest arbitration—but it remains a voluntary process.

Strikes

Both laws legalize strikes. In other words, it is the official policy of this state that negotiating disputes ultimately will be resolved by the interplay between the unions' ability to conduct strikes (or their threat to do so) and the employers' ability to take strikes (or their threat to do so). In legal terms, the new situation is quite different from the situation in previous years, but in operational terms there may be little practical difference, for Illinois public employees and employers were no strangers to strikes.

However, under each law the employees must satisfy five conditions in order to conduct a legal strike.

First, the employees must be unionized. This requirement doesn't mean much, as there have been almost no strikes by nonunion public employees.

Second, the existing contract must have expired. Again, this requirement means little, for almost all contracts contain a no-strike clause, and unions invariably have waited until a contract has expired before walking out.

Third, the union and the employer must not have agreed to arbitrate their impasse. The laws do not mandate arbitration, but they do explicitly authorize it as a method of settling an impasse without a work stoppage. However, Illinois public employers long have been aware that arbitration is available for such purposes, so the new laws merely codify a possibility that has been around for a long time.

Fourth, it's clear that the legislature wants mediation to occur before a strike. For example, HB 1530 says that mediation must have been used "without success" before strike can occur. In addition, both laws require the various labor relations boards to establish rosters of qualified and impartial mediators to assist the parties in reaching agreement, and both laws give the labor relations boards the authority to initiate mediation even if the parties do not. However, the strike requirement language in SB 536 says that the union "must have requested a mediator pursuant to Section 12" for a strike to occur. This language is quite different from HB 1530, and I believe that its intent is to eliminate an employer's ability to delay or prohibit a strike by refusing to participate in mediation. How this requirement will work in practice, though, is still unclear. For example, if a union has complied with all the other SB 536 strike conditions, can the union pull out its members at 9:00 a.m. if it has phoned in a mediation request at 8:00 a.m.? Although this appears to be a farfetched example, it is consistent with the literal language of the statute.

In general, the legislature's clear intent in both laws is to encourage and require mediation before strikes occur.

Fifth, the union must give the employer at least a five-day notice of the union's intent to strike. In other words, the official policy of Illinois is that there will be no surprise or "quickie" strikes. However, I'm not sure what practical impact this requirement will have, for any employer representative who can't figure out when a strike is likely ought to pursue another line of work.

Is it an unfair labor practice for a union to give the employer a strike notice and then not strike? Considering that both laws say that "at least five days have elapsed after a notice of intent to strike," I believe this language allows unions to change their minds and call off their "intent to strike." Along the same line, how long does a union's intent to strike notice remain operative? If a union delivered an intent to strike notice on September 1, certainly a strike which started on September 15 would be covered. What about a strike on October 15? December 15? As with so many sections of these laws, only a lot of administrative rule-making and litigation will give us conclusive answers.

Both laws provide a safety valve for struck employers. If a strike creates "a clear and present danger to the (health and safety in SB 536; health or safety in HB 1530) of the public," the employer may seek to enjoin the strike. However, this is a tough standard to satisfy, for it requires stronger evidence than the much looser standard of "threatens the health, safety,

NOTE

This article is reprinted with permission from "The Illinois Public Employee Relations Report," Vol. 1, No. 1 (March 1984), published by the Institute of Labor and Industrial Relations at the University of Illinois.

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". . . It's clear that the legislature wants mediation to occur before a strike. For example, HB 1530 says that mediation must have been used 'without success' before a strike can occur."

Finally, two important operational strike questions flow from this new legislation:

1. Now that strikes are legally protected, how many of them will occur? Predictions are always hazardous, but the experience in legal-strike states such as Pennsylvania indicates that the number of strikes in Illinois will increase compared to the strike levels during the past few years. However, the vast majority of impasses will continue to be settled at the negotiating table rather than on the picket line.

2. If strikes are legally protected, can strikers be permanently replaced? The operational record clearly indicates that strikers can be temporarily replaced (by using supervisors, non-striking employees, short-term substitutes, and so on). Further, for several decades private-sector employers have had the right to permanently replace strikers. In addition, strikers (public or private) cannot be fired for participating in a legal strike (there's a world of legal difference between being replaced and being discharged). The forecast in Illinois: Months and years of litigation will occur before we have a definite answer to this permanent replacement question.

Mediation

As noted previously, the legislature clearly wants the parties to mediate their disputes before striking. The laws say almost nothing about what the mediation process is (it's an informal and unstructured issue-oriented interaction process that operates according to how the mediator, the union, and the employer want it to operate), but the laws do indicate that the various labor relations boards will regulate the provision of mediation services. These boards are required to establish and maintain rosters of qualified and impartial mediators, and these individuals will do most of the mediating. The parties, however, are also free to mutually select other mediators of their own choosing.

The laws give either side the authority to request mediation, and they

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also give the various labor relations boards the authority to initiate mediation if the boards believe it is warranted (although I hope that the boards will not force mediation upon the parties against their wills, for the process doesn't work well unless there is voluntary participation).

There was plenty of mediation in the pre-legislation days (via the Federal Mediation and Conciliation Service, the State Board of Education, ad hoc arrangements, etc.), so most Illinois employers and unions have had some exposure to the process. Considering what the new laws say about mediation, this union and employer exposure to the process should increase substantially in the months ahead. In addition, most unions and employers like mediation because it works much of the time, and the unions and employers retain control over the outcome.

There is an important financial difference, however, between past and future mediation. Much of the past mediation cost the parties nothing. That has changed, however, for the legislature has adopted the "user fee" concept regarding payment for third-party services. Illinois unions and employers will pick up the tab (on a 50-50 basis) for mediation services (although mediator fees will be regulated by the various labor relations boards). Any FMCS mediation services will continue to be provided free of charge.

Fact-Finding

Fact-finding is a more formal and structured process than mediation (it involves a hearing, written evidence, examination and cross-examination of witnesses, and a written report), but it shares mediation's virtue of allowing the parties to retain control over the outcome. Fact-finders do not issue awards, they issue settlement recommendations, and as this implies, the parties are free to accept or reject these recommendations.

Both laws authorize fact-finding, but neither law mandates it. Therefore, fact-finding will occur only when both sides voluntarily agree to participate. Both laws also authorize the fact-finder to be the same person who mediated the dispute, provided the union and employer agree. As with mediation, the parties will share the fact-finder's fees and expenses on a 50-50 basis.

The days of free mediation have changed. Under the provisions adopted by the legislature, Illinois unions and employers will pick up the tab on a 50-50 basis for mediation services. FMCS mediation will continue to be provided free.

If the previous Illinois experience and the experience in other states are useful guides, there probably will not be much voluntary fact-finding under either law. The parties in this state long have had the option to use fact-finding (for there was no law which prohibited it), but relatively few of them did so. Because both laws retain this voluntary characteristic, I see nothing in either statute that would lead to a significant increase in fact-finding.

Arbitration

In general, neither law mandates interest arbitration (which should never be confused with grievance arbitration). However, both laws authorize it, especially as a strike prevention device (see above). In addition, SB 536 creates two situations where arbitration is mandatory:

1. Section 14 mandates that arbitration shall be used (if necessary) to resolve impasses involving units of security employees, state peace officers, and state fire fighters. This arbitration section specifies a tripartite panel (an employer member, a union member, an impartial chair), final offer arbitration on an issue-by-issue basis for the economic issues in dispute (and presumably conventional arbitration on the noneconomic issues), a list of criteria the arbitrators must use when making their decisions, and it allows the "governing body of the employer" the right to reject part or all of the arbitration award (such rejection means, however, that the panel must reconvene and issue a supplemental decision, with the employer picking up the entire tab for these supplemental proceedings).

2. If an employer obtains a Section 18 "clear and present" danger injunction that requires some or all of the employees to return to work (i.e., "essential employees . . . whose services are necessary to avoid or remove any such clear and present danger"), the court must order the employer and the union to participate in the Section 14 arbitration procedure just described. In other words, in those rare situations where the employer obstains an injunction ending a strike, the employer will be required to arbitrate. Given most public employers' antipathy to interest arbitration, this requirement will give employers an incentive not to seek Section 18 injunctions.

When we consider the limited number of cases covered by these two SB 536 exceptions (i.e., police, fire fighters, and sherrifs' deputies are not covered by the law, so there aren't many employee groups remaining who qualify as "security" employees, and there should be few Section 18-required artibrations), and when we consider that many (and perhaps most) public employers would rather cope with strikes than arbitration awards, it seems safe to predict that Illinois will not experience a dramatic increase in interest arbitration under either law.

In conclusion, it is worth repeating the opening theme: For all the pages and pages of new legislation (and there will be additional pages of administrative regulations), the parties still retain control over their own negotiating impasses. In practice, this means that Illinois unions and employers must create their own settlements rather than expect that somebody else will perform this tough job for them.

ABOUT THE AUTHOR: Peter Feuille is Professor of Labor and Industrial Relations with the Institute of Labor and Industrial Relations, University of Illinois, Champaign-Urbana campus. He is a graduate of Claremont Men's College, Claremont, California, with a B.A. in liberal arts, and the University of California at Berkeley with a Ph.D. in Industrial Relations. He has worked as a mediator, fact-finder and arbitrator in public sector labor disputes.

Life. Be In It.

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