Appeals court refuses to lift stay on labor board's impasse finding; strike spectre still looms

By The Cook County Record | Mar 3, 2017

In the latest move in the ongoing battle between Illinois state union workers and Gov. Bruce Rauner, a state appeals court has refused the governor’s request to lift a court-ordered stay on the Illinois Labor Relations Board’s finding that the state and its largest union are at an impasse, a move that will impact the ability of Rauner to impose contract terms and of the union to strike.

In a statement released Friday, the American Federation of State County and Municipal Employees (AFSCME) Council 31 hailed the ruling, saying it hoped the order from the Illinois Fourth District Appellate Court in Springfield would restart stalled negotiations.

“Today’s decision is in the best interest of all the people of Illinois, both public service workers and the millions of citizens who rely on their important work,” AFSCME Council 31 Executive Director Roberta Lynch said in the statement. “We strongly urge Gov. Rauner to join us in the spirit of compromise and return to bargaining in good faith to reach an agreement that is truly fair to all.”

The governor’s office, however, said in a prepared statement Rauner was “very disappointed” in the ruling, saying it “prevents our Administration from implementing common-sense changes in the AFSCME contract.” The statement cited several examples including requiring employees to work 40 hours before they can begin earning overtime pay, instead of 37.5; the ability to use volunteers for certain state services; and “a merit pay system.”

“Our contract framework is fair to the State’s taxpayers and employees alike and reflects proposals accepted by 20 other unions,” the governor’s office said in its statement.

In its order, the Fourth District Appellate Court said the union had demonstrated a likelihood of success in its challenge to the ILRB’s impasse finding, saying it appeared to have been based on a potentially arbitrary misapplication of a rule allowing the board to essentially declare an impasse based on a disagreement over a single element of negotiations between the union and Rauner’s office.

In this case, the ILRB had declared an impasse on negotiations over the state’s desire to change language governing the use of private contractors.

The order noted the ILRB had based its decision on the governor’s office’s assertion of an impasse, a conclusion AFSCME disputed.

The appeals court said it believed the stay should be left in place to allow time for the union’s various lawsuits over the impasse finding to be resolved in court.

If the stay had been lifted, Rauner could have been free to implement the state’s current offer.

Should the stay have been lifted, and the impasse finding allowed to stand, the union could have been empowered to strike.

AFSCME announced earlier this month that more than 80 percent of its members had voted to authorize a strike.

Patrick DePoy, an associate attorney with the firm of Franczek Radelet in Chicago, said such a strike would be historic.

“There’s never been a strike of state workers in Illinois history, so this would be a first,” DePoy said.

He noted the two sides are at odds over “bread-and-butter bargaining issues.” But the union can’t simply call a strike, DePoy explained.

"There is a controversy right now as to whether or not there’s actually a real impasse,” DePoy said. “If state workers went on strike and the governor challenged that before the Labor Relations Board, the union could be guilty of an unfair labor relation practice for going on an unauthorized strike.”

If AFSCME does decide to strike and the move is challenged by the governor, the ILRB could hold the union accountable for failing to continue negotiations and thus violating labor laws.

“There’s no indication right now that there will actually be a strike,” DePoy said. “A strike authorization vote can often be used as a negotiating tool to say, ‘Well, our members are ready to strike.’”

Even if AFSCME does call a strike, some employees will remain on the job, specifically those in the public safety sector. Prison employees, juvenile justice workers, and first responders are all barred from participating in a strike.

In preparation for a strike, Rauner’s office has created a website believed to be designed to collect contact information for workers to potentially replace striking employees and keep other state services running.

"I think this is step one in a multi-step process,” said DePoy, of AFSCME’s strike authorization vote. 

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American Federation of State County and Municipal Employees Council 31 Franczek Radelet PC Illinois Fourth District Appellate Court Illinois Governor Bruce Rauner State of Illinois

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