Legislative Update: Minimum Manning Legislation Flames Out In Senate; Other Labor and Employment Bills of Interest
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Legislative Update: Minimum Manning Legislation Flames Out In Senate; Other Labor and Employment Bills of Interest
June 2, 2014
The Illinois legislature adjourned on Saturday, May 31. During the spring session, the legislature considered several bills which would have an impact on labor negotiations and municipal employment practices. Chief among these bills was House Bill 5485, which would have made minimum manning a per se mandatory subject of bargaining for fire departments. This Legal Advisory provides an update regarding the status of these bills. Most importantly, the Senate adjourned without taking any action on HB 5485.
House Bill 5485: Minimum Manning
Synopsis:
House Bill 5485 would have made minimum manning a per se mandatory subject of bargaining in fire departments. Countless municipalities voiced their objection to the bill. Attorneys from Clark Baird Smith helped counter the AFFI’s legal arguments, and worked hand-in-hand with municipalities, municipal conferences, and IPLERA to help craft the strategy that ultimately led the Senate to take no action on HB 5485.
Detailed History of HB 5845:
Minimum manning is a per se permissive subject of bargaining for police departments. Because manning is a permissive subject of bargaining, police units cannot insist to the point of impasse on a manning clause, and arbitrators cannot award minimum manning proposals in interest arbitration.
Whether minimum manning is a mandatory or permissive subject of bargaining in fire departments is a more complex question. The IAFF claimed that an Appellate Court decision in Village of Oak Lawn established minimum manning is a mandatory subject of bargaining. Carefully reading the Oak Lawn decision, attorneys at Clark Baird Smith LLP rushed to say “not so fast.” The Oak Lawn Court only held that the mandatory or permissive nature of a manning proposal needs to be decided by applying the fact-intensive Central City balancing test. The questions of fact that are critical to the balancing test were never raised in Oak Lawn. Therefore, whether minimum manning is a mandatory or permissive subject in the fire service is an open question.
The Village of Schaumburg was one of the first municipalities to challenge the IAFF’s claim that minimum manning was a mandatory subject of bargaining. As a result of the Village’s efforts, the General Counsel for the Illinois Labor Relations Board ruled that Oak Lawn is not the final word on this issue. Instead, as we argued on behalf of the Village, the issue must be decided by careful application of the Central City balancing test. Faced with this ruling, the IAFF retreated and withdrew its minimum manning proposal in Schaumburg.
Other municipalities have also argued that minimum manning in fire departments is a permissive subject of bargaining. Most notably, the Village of Glenview has argued at the Labor Board that it had the managerial right to remove an ambulance from service during non-peak hours. Equally important, in a case involving the City of Elgin, the Executive Director of the Labor Board issued a complaint that specifically alleges that minimum manning is a permissive subject of bargaining.
Apparently concerned with the potential outcome of the Board litigation, the IAFF and the AFFI turned to Springfield for relief. Representative Rita Mayfield introduced HB 5485, which would have made minimum manning a per se mandatory subject of bargaining in fire departments. The legislation quickly passed in the House of Representatives. The legislation was sent to the Senate where the Democrats hold a sizeable majority, 40 to 19. Passage of the bill seemed inevitable.
Countless municipalities, IPLELRA, and numerous municipal conferences made it clear to their Senators that they strongly opposed HB 5485. As a result of these joint efforts, editorials in opposition to HB 5485 were published in the Chicago Tribune, the Chicago Sun Times, the Daily Herald, and dozens of down-state newspapers.
The opposition to HB 5485 culminated in a meeting hosted by Senator John Mulroe, the Chief Sponsor of the bill in the Senate. During the meeting, Benjamin Gehrt from Clark Baird Smith went toe-to-toe with AFFI lobbyist Pat Devaney. Numerous employer organizations added their own compelling stories about why HB 5485 was unnecessary and a hidden tax on municipalities, including Glenview, Northbrook, Franklin Park, the Northwest Municipal Conference, and the Illinois Municipal League.
As a direct result of these coordinated efforts, HB 5485 was never called for a vote in the Senate. In fact, HB 5485 was never assigned to a committee. The bill, which at first seemed inevitable, essentially died in the Senate!
It is important to note that while this is a great victory for the employer community, the bill might be revived in the veto session after the general elections this November. Municipalities who oppose this bill should not let their guard down.
Other Fire Department Labor Legislation
The AFFI had a busy legislative session, proposing several other bills that could further limit the ability of local elected officials and Fire Chiefs to manage the cost of operating their fire departments.
House Bill 4418
This legislation will force municipalities with 500 or more residents to submit a referendum prior to closing any “fire department.” The legislation also applies to the closure of a “fire department” in a fire protection district. Although this legislation speaks about closing “fire departments,” organized labor might argue that it also applies to the closure of any single “fire station.” The bill serves as a limitation on a municipality’s home rule powers.
HB 4418 passed in both houses by veto-proof majorities and waits for the governor’s signature.
Senate Bill 1681
SB 1681 claims to be a bill that supports fire department consolidation. The opponents of this bill have instead labeled this bill the “Anti-Consolidation Bill” because it establishes a complex series of steps that must be undertaken before two or more departments can consolidate their fire services.
SB 1681 was passed in the Senate and was later amended in the House. Under the House Amendment, the bill does not apply in the following circumstances:
- The bill does not apply to any unit of local government that has entered into a consolidation agreement that includes the consolidation of the delivery of fire protection or EMS services under a single chain of command.
- The bill does not apply to any unit of local government that has adopted a resolution declaring its intent to consolidate the delivery of fire protection or EMS services under a single chain of command. Any such resolution would exempt the unit of local government from the bill for a period of one year. The bill does not specifically state what would happen after the one year exemption expires.
- The bill does not apply to automatic aid or mutual aid agreements.
SB 1681 passed unanimously in the House, and the Senate concurred in the House’s amendments. The bill now waits for the governor’s signature.
If your municipality is considering fire department consolidation, you should consult with your legal counsel about the ramifications that this bill might have on your plans.
Other Notable Labor And Employment Legislation
Senate Bill 3411
SB 3411 restricts the ability of police departments to measure employee performance based on the number of traffic citations issued. Clark Baird Smith previously reported on the passage of this bill. That CBS Legal Advisory, which can be found at /no-ticket-quota-bill-passes-the-illinois-general-assembly/, alerted municipalities that some types of performance metrics are still allowed under this legislation. This bill still awaits the Governor’s signature.
House Bill 0008
HB 0008 amends the Illinois Human Rights Act to specify that public and private sector employers must provide reasonable accommodations for pregnant employees, unless the accommodation would create an undue hardship. HB 0008 extends protections to “pregnancy, childbirth, and conditions related to pregnancy and childbirth.” The bill also requires employers to post notices and to include notices about an employee’s pregnancy accommodation rights in their employee handbooks, and further prohibits retaliation against employees who request pregnancy accommodations.
HB 0008 passed in both houses and awaits the Governor’s signature.
House Bill 4157
HB 4157 amends the definition of an “employee” under the Illinois Human Rights Act to include unpaid interns. Under the bill, unpaid interns will be entitled to the same protections from discrimination and retaliation as paid employees. The bill passed unanimously in both houses and awaits the Governor’s signature.
Senate Bill 3514
SB 3514 would have amended the Illinois Public Labor Relations Act in several ways. Among other things, the bill would have prohibited the Illinois Labor Relations Board from holding secret ballot elections in peace officer and security employee units after an interest arbitrator has been appointed pursuant to the procedures outlined in Section 14 of the IPLRA. The bill also would have mandated that interest arbitration panels for police and correction officer negotiations be exclusively provided by the Illinois Labor Relations Board, instead of using the arbitrator selection process in the negotiated bargaining agreement.
SB 3514 passed the Senate, but no action was taken on the bill in the House.
House Bill 3664
HB 3664 would have amended the Freedom of Information Act to specify that any severance agreement or settlement agreement that is funded in whole or in part by public money or which releases a claim against a public body cannot impose a requirement of confidentiality among the parties unless otherwise consistent with a FOIA exception. This bill passed the House, but was not voted on in the Senate.
It should be noted that FOIA already provides that all settlement agreements entered into by or on behalf of a public body are subject to inspection. The amendment seems to have been drafted to contain the use of confidentiality clauses in such agreements in a way that was consistent with opinions of the Public Access Counselor’s Office of the Attorney General and the courts. Government agencies should check with their attorney prior to withholding any such documents.
Please contact your Clark Baird Smith LLP attorneys with any questions you might have about how these legislative develops might affect your unit of government.
The CBS LLP Legal Advisory is prepared for general information purposes only. The summaries of recent court opinions and other legal developments are not necessarily inclusive of all the recent legal authority of which you should be aware when making your legal decisions. Thus, while every effort has been made to ensure accuracy, you should not act on the information contained herein without seeking more specific legal advice on the application and interpretation of these developments to any particular situation.
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