A DuPage County city was justified in referring a health insurance provision to an arbitrator during difficult negotiations with its firefighters union, according to a ruling recently affirmed by a state appellate panel.

 The Illinois Second District Appellate Court, which convenes in Elgin, issued a June 22 judgment on a petition for administrative review of an Illinois Labor Relations Board decision. Justice Mary Seminara Schostok wrote the opinion; Justices Robert D. McLaren and Robert B. Spence concurred.

In 2012, negotiations failed between west suburban Wheaton and Firefighters Local 3706. The union initiated arbitration proceedings, during which the city sought to add a contract provision allowing it to unilaterally change health insurance benefits during the term of the contract. That prompted the union to file an unfair labor charge. The Labor Relations Board found the submission of the proposal did not constitute an act of bad faith; the union appealed.

 In the interim, the city and union settled the larger dispute, and executed the contract that was art of the arbitration process, followed by a successor agreement running through April 30, 2018. Neither deal included the city-written language that spurred the labor complaint. The city argues this means the court should dismiss the appeal. However, Schostok wrote, the U.S. Supreme Court and labor boards have “consistently rejected” such an argument.

 As the appellate justices viewed the dispute, the question to answer is if “a party’s mere submission of a new proposal for the first time in front of an interest arbitrator can constitute an act of bargaining in bad faith.” Looking at a 1998 Labor Relations Board ruling on a case involving the village of Bensenville, Schostok explained state law “does not, on its face, preclude the use of interest arbitration to resolve collective bargaining disputes over permissive subjects of bargaining.”

Simply put, if the second party in the dispute objects to the arbitrator considering the issue the first party submits, the arbitrator is supposed to respect the objection and ignore the submission.

 The union’s appeal also invoked past Labor Board rulings on cases involving firefighter unions in Midlothian and Wheeling. However, Schostok noted, “in those cases the parties had already been negotiating over the controversial issue when one of the parties submitted it to an interest arbitrator.” Once one party indicated it would not cede ground on a matter, “it was indeed bad faith for the other party to continue to press the issue and submit it to an interest arbitrator anyway.”

Further, the union also tried to suggest allowing the city’s side to win would establish an inconsistency between how grievances are handled under two different sections of state law. But since the justices rejected the union’s underlying premise, its argument of inconsistency also failed.

Neither did the justices accept the argument the labor board’s remedy for the contract proposal was insufficient: “The Union ignores the fact that the Board’s remedy - a party’s ability to prevent an arbitrator from considering an issue by objecting under … the Board’s rules - worked in this case.”

Finally, the city asked the appellate panel to affirm the labor board’s decision on the basis the city’s proposal involved a mandatory bargaining subject. But the justices said the facts of that case did not require them to address the issue. Schostok cited the 2001 Illinois Third Appellate Court ruling on McNeil v. Carter, which held the “reviewing court need not address the viability of the alternate grounds upon which the trial court might have relied in dismissing the complaint.”

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