Terranova rebuts AFSCME “at will” claims
Tuesday, Jul 19, 2016 - Posted by Rich Miller
* From a blast e-mail to state employees…
Dear colleagues,
In case you missed it, I wanted to share with you my letter to the editor that ran in last weekend’s edition of The State Journal-Register. The letter is copied below. In it, I correct AFSCME’s erroneous statement that employees who refuse to join the union at the picket line and remain at work become “at will,” a term reserved for a limited group of state employees who can be terminated without just cause. AFSCME’s claim is wrong. AFSCME employees continue to receive the same job protections even if they remain on the job and refuse to join the union on the picket line.
Yours,
JT
John Terranova
Deputy Director
Office of Labor Relations
Department of Central Management Services
The following is a Letter to the Editor published in the State Journal-Register on Sunday:
Letter: AFSCME misleading on employees’ strike status
This paper recently reported on the possibility that AFSCME Council 31 employees could go out on strike, perhaps as early as Sept. 1.
As Deputy Director for Labor Relations at the Illinois Department of Central Management Services, one of my goals is to avoid a strike. I therefore feel compelled to correct one item of factually false information the union has provided.
AFSCME incorrectly claims that an employee who fails to join the strikers at the picket line and remains on the job becomes an “at will” employee and thus can be fired without just cause. Not so.
AFSCME members are not “at will.” The state’s last, best and final offer in contract negotiations includes the provision that employees can be discharged or disciplined only for just cause. If the Labor Board determines that the parties are at impasse and the state has implemented its last, best and final offer, AFSCME members and fair share employees alike who remain on the job would continue to receive these protections.
Employees do not lose these protections simply because they fail to join the picket line. Indeed, employees would be protected not only by the state’s last, best and final offer, but also by the state’s Personnel Code and accompanying rules, which extend the same workplace protections, as a matter of state law, to AFSCME employees.
While we hope employees reject AFSCME’s irresponsible strike talk, we firmly believe that a decision to strike or to continue working belongs to each employee and will respect each employee’s decision. AFSCME should do the same. That starts with providing accurate information on this critical issue.
I’ve asked AFSCME for a reply.
- Mama - Tuesday, Jul 19, 16 @ 2:55 pm:
“As Deputy Director for Labor Relations at the Illinois Department of Central Management Services, one of my goals is to avoid a strike”
If this statement is true, agree to go back to the bargaining table with AFSCME, and be willing to compromise like privatizing jobs at will.
- Almost the Weekend - Tuesday, Jul 19, 16 @ 3:03 pm:
Let them go on strike. See what happens when they miss a paycheck and no strike fund to help them out. They will be back next pay period. AFSCME has done no long term planning. Everything is spontaneous. I’m looking forward to their PQ protest on steroids at Republican Day at the State Fair.
- Warthog - Tuesday, Jul 19, 16 @ 3:04 pm:
It is my understanding AFSCME was not willing to budge on their demands and they made that clear. True or False?
- Nick Name - Tuesday, Jul 19, 16 @ 3:05 pm:
“This paper recently reported on the possibility that AFSCME Council 31 employees could go out on strike, perhaps as early as Sept. 1.”
Wrong. The SJ-R reprinted a statement from Rauner general counsel Jason Barclay, in which he engaged in cheap, tawdry rumor-mongering: “And we have heard that they have already selected a strike date of September 1.”
The SJ-R reported it as a rumor being spread by the Rauner administration: “The Rauner administration believes AFSCME wants a strike,” and quoted AFSCME spokesman Anders Lindall saying the exact opposite: “AFSCME members don’t want to strike. We’ve never had a strike of state employees.”
So right in his first paragraph, Terranova is spreading misinformation.
- Skirmisher - Tuesday, Jul 19, 16 @ 3:06 pm:
AFSCME is as willing to put out baseless propaganda as anyone. A response from that organization is definitely called for.
- Honeybear - Tuesday, Jul 19, 16 @ 3:07 pm:
AFSCME reply will probably be in a bit. The International Convention is going on right now.
To the Terranova’s post, how is a Last,Best,and Final OFFER, emphasis OFFER a contract? It’s not a contract Terranova. It has not been accepted by AFSCME, it’s an offer. No if there is a strike then there is no contract. If we accept the contract THEN we have the protections under the contract.
Sure we have protections under the Civil Code against discrimination etc just like other workers in Illinois.
But the point is that if we don’t have an accepted contract, we don’t have a contract.
Maybe I’m wrong but I don’t think so. I think this is PURE PERFIDY.
No, if you cross the picket line they CAN absolutely say, your job is now in Springfield doing XYZ. If you refuse to go or do what they say they can absolutely fire you. It’s just like being in the private sector at that point.
AT WILL means that you do not have a contract. You are AT their WILL. It’s not that they would fire you willy nilly. I don’t believe that. But I do think that they will for instance send DHS workers to Springfield or Chicago to man call centers. They could also say, “we don’t need you at that location”. Sorry Marion DHS. We don’t need you to show up to work. We will handle it out of Chicago. No contract means they can do what they want.
This is perfidy.
Citation
The at-will doctrine is not itself a form or component of contract, but rather is the default state deemed to exist prior to any contractual override. [6][7][8]
However, the presumption can be overridden by an employment contract, either explicit or, in several states, implicit.[9] For examples, in workplaces with a trade union recognized for purposes of collective bargaining, and in many public sector jobs, a contract is used to override at-will status such the employer must have a “just cause” to dismiss an employee.
See, a contract overrides it. A contract only exists if BOTH PARTIES agree to it John! A contract doesn’t exist if one side imposes it, especial in regards to a LEGAL strike.
- DHSJim - Tuesday, Jul 19, 16 @ 3:10 pm:
Don’t think there’ll be a strike. The only one in this State who wants a strike is Rauner. I believe the Labor Board will rule that we’re not at impasse and tell Rauner to meet AFSCME half way. Therefore Rauner gets his “victory” with pay freezes and slight increases in health care costs while AFSCME lives to fight another day by maintaining restrictions on privatization. Believe this deal will happen in January.
- Honeybear - Tuesday, Jul 19, 16 @ 3:10 pm:
–It is my understanding AFSCME was not willing to budge on their demands and they made that clear. True or False?—
FALSE- The day the Rauner Administration walked out AFSCME had put forth a MAJOR wage concession which wasn’t even looked at by Terranova. This point was pounded home time and again during the Administrative Law hearings.
- Honeybear - Tuesday, Jul 19, 16 @ 3:12 pm:
God I hope that’s the case DHSJim! You’re right though. The strikemongerer is Rauner. He’s been planning this from the beginning. It’s irrefutable.
- Honeybear - Tuesday, Jul 19, 16 @ 3:17 pm:
Oh, I’d like to point out that refusing a direct order is “just cause” for termination. They tell you to do a job you don’t know how to do or don’t want to do then, BAMMMM, you’re fired for just cause.
Does anyone think that Rauner cares about State workers when he’s willing to financially destroy thousands of lives, when he’s more than happy to see whole universities go down? Really Terranova? Rauner cares? We are nothing to him and his actions and behaviors prove it time and again.
- DHSJim - Tuesday, Jul 19, 16 @ 3:18 pm:
The Labor Board knows that if they side with Rauner, AFSCME will drag it out in the courts and get a stay due to Rauner’s clearly unreasonable demands. A stay means previous contract is still in effect. Labor Board will tell Rauner get what you can get from them while you can with a new, less generous contract. This wouldn’t be a win for AFSCME. But it wouldn’t be a loss either.
- SOIL M - Tuesday, Jul 19, 16 @ 3:19 pm:
State workers still dont understand that posting on here during their work hours really does not help their cause in the eyes of the general public. And could be considered Union Activity during work hours.
- Honeybear - Tuesday, Jul 19, 16 @ 3:24 pm:
Oh, and I’d just like to point out that our informational sessions about a possible strike must be working in order to force you into this perfidious action. Try as you might Terranova, you can’t erase the vitriol and disdain that Rauner has shown his own workforce. Congratulations, I don’t know of a SINGLE state worker besides maybe ALLEN D, who I’m still not convinced is actually one of us, who likes Rauner. Besides him I don’t even know of another.
- BeenThereB4 - Tuesday, Jul 19, 16 @ 3:34 pm:
== AFSCME reply will probably be in a bit. The International Convention is going on right now. ==
That is probably why Terranova picked today to use state email (an ethics violation) and spread his misinformation. He knew it would take a while to respond, and the longer it’s out there unchallenged the more damage it does.
Welcome to the dark side.
- Bigtwich - Tuesday, Jul 19, 16 @ 3:37 pm:
I could not find the AFSCME claims in the SJR. Where is this ‘erroneous statement ‘ being made?
- Honeybear - Tuesday, Jul 19, 16 @ 3:39 pm:
BeenThereB4, Yep, right on the money. But hey, one more bit of evidence for unfair labor practice which bolsters the legitimacy of a legal strike. Don’t get me wrong. A strike is the last thing I want to do. But thanks Terranova.
- Libertas - Tuesday, Jul 19, 16 @ 3:42 pm:
== It’s just like being in the private sector at that point. ==
HB - why should a public sector job be different than one in the private sector?
- Team Warwick - Tuesday, Jul 19, 16 @ 3:44 pm:
I really seriously doubt this is real info. Im an AFSCME member, havent heard anything about any saber rattling about any strikes or dates and im not participating if they did it. No one talks about it except the governor? To find out what AFSCME is doing i need only ask the gubnor, Nah. This is lame disinfo i think. And if i dont strike i can be instantly fired or reassigned? Naw, wbat they said..
- Memo From Turner - Tuesday, Jul 19, 16 @ 3:46 pm:
AFSCME members better watch out crossing a picket line. A member can be fined by AFSCME and brought up on internal union charges. As a matter of law, the member should resign prior to crossing to avoid fines and discipline.
- Warthog - Tuesday, Jul 19, 16 @ 3:50 pm:
Honeybear, you mention a MAJOR wage concession but you provide no detail. Please detail this major concession.
- Honeybear - Tuesday, Jul 19, 16 @ 3:53 pm:
Libertas, good catch, my bad. I should have been more precise. Private sector non-union, or actually just plain non-union. Thanks! No disrespect meant by that. I was just writing fast.
- Honeybear - Tuesday, Jul 19, 16 @ 3:56 pm:
Warthog, another good bust. I haven’t got it with me. It’s somewhere in my notes from when I was talking with my buddy who was at negotiations. You can believe me or not. I’ll try to find it if I’ve got time tonight although I’ve got to take the teen driving tonight so we’ll see.
- Honeybear - Tuesday, Jul 19, 16 @ 3:58 pm:
–As a matter of law, the member should resign prior to crossing to avoid fines and discipline.–
That is correct I believe. I learned that when researching for myself what happens during a strike.
- Knight of Ni - Tuesday, Jul 19, 16 @ 4:09 pm:
From what I understand about the last negotiations between the administration and afscme, the union was in the process of moving towards some of the governors positions when, apparently, someone on the governors team yelled “run away!” I could be wrong of course.
- Lester Holt's Mustache - Tuesday, Jul 19, 16 @ 4:14 pm:
==AFSCME members better watch out crossing a picket line. A member can be fined by AFSCME and brought up on internal union charges.==
That’s not really a great way to keep your members happy and paying full dues. I assume many afscme members are not incredibly well paid. What if the member is the sole bread winner of his/her family? What if your household includes two union state employees? “Oh, we don’t have any kind of strike fund. What’s that you say? You can’t afford to go out on strike? Well, too bad! You’re up on charges, mister. That’ll be a $500 fine”
Next time someone suggests to me that public union employees are out of touch with reality, I don’t know that I’ll be able to honestly argue otherwise.
- Warthog - Tuesday, Jul 19, 16 @ 4:15 pm:
Well Honeybear, it is never easy driving with a teen!!
Yes, I would like to see what are MAJOR wage concessions. And, any other concessions on each side. Of the top of your head, what do you venture as the wage concession?
- Honeybear - Tuesday, Jul 19, 16 @ 4:26 pm:
Warthog, my 15yo is actually a great driver and has relaxed into it. I no longer have my foot jammed to the passenger side floor in a vain attempt to brake as I did before. She’s just got to stop talking to me while driving. It’s a nervous habit of hers. I had to shush her 10 times the other night.
Anyway, the state had proposed the merit increases and a ( think it was a COLA percentage) then we came back, then they countered and then we came back again on the day they walked out. Now honestly that’s what I remember but I’ll fully admit I’m fuzzy. I think it’s in my bag by the door at home. You might want to google it. I have this faint memory of Roberta publically saying something about it.
- Anonymous - Tuesday, Jul 19, 16 @ 4:28 pm:
Protection nearly as good as the union contract. https://www.illinois.gov/cms/Employees/Personnel/Documents/emp_rules.pdf
- Steve Schnorf - Tuesday, Jul 19, 16 @ 4:37 pm:
Terranova’s point about the employees crossing a picket line not being “at will” is absolutely correct, a point I made on here 2 or 3 weeks ago.
- Mama - Tuesday, Jul 19, 16 @ 4:44 pm:
- Honeybear - Tuesday, Jul 19, 16 @ 3:58 pm: -
“resign prior to crossing”
Resign from what(work or the union)?
- Honeybear - Tuesday, Jul 19, 16 @ 4:53 pm:
Anonymous 4:28 you tell me what’s different in these sections:
Section 302.470 Geographical Transfers
Section 302.431 Demotions
Section 302.510 Layoffs
Section 302.520 Lay off Procedure
Section 302.700 Cause for Discharge
I’ll give you one difference. Everything is up to the Director of the Agency. The direct can decide what to do with you.
- Honeybear - Tuesday, Jul 19, 16 @ 4:54 pm:
And just as two weeks ago I disputed your claim Steve Schnorf. Try citing something Steve. Go ahead tell me how Last, Best, and Final OFFER is a contract.
- Ihatepolitics - Tuesday, Jul 19, 16 @ 4:55 pm:
@Steve Schnorf
Your point gets in the way of AFSCME trying to scare people into not crossing
- Honeybear - Tuesday, Jul 19, 16 @ 4:55 pm:
No anonymous the Employee rules are no where near the protection as a contract. My God the perfidy of these people.
- Arthur Andersen - Tuesday, Jul 19, 16 @ 4:57 pm:
It’s been awhile since I worked with an AFSCME-represented workforce or read their CBA cover to cover. Having said that, I have to agree with Steve. The Personnel Code, and an employee’s status, just don’t go away when a contract expires or worse.
- Sense of a Goose - Tuesday, Jul 19, 16 @ 5:00 pm:
Personnel Rules also have an appeal process and an ability to go to court if necessary. They have the full eeffect of law so discounting them is amateurish. Precedent applies. Director means the Director of CMS
- Neveranonymous - Tuesday, Jul 19, 16 @ 5:06 pm:
Not all state employees are covered by the Personnel Code.
- spent - Tuesday, Jul 19, 16 @ 6:16 pm:
i hope we don’t, but if we strike…the people on the sidewalk with the picket signs are covered by the existing union contract, those who cross are not- but sure, they are covered by labor laws
- spent - Tuesday, Jul 19, 16 @ 6:20 pm:
i will NOT cross the picket line but (as others have stated) for those who do
how much will you be paid?
at which location will you work?
will you be performing your existing job duties?
there are many ?s & of course: rauner wants a strike but he wants the strike to FAIL
stick togerherafscme members!
- Arthur Andersen - Tuesday, Jul 19, 16 @ 6:43 pm:
Never Anon-can you give me an example of a bargaining unit employee who is exempt from the Personnel Code? No snark, I just can’t think of one.
- Honeybear - Tuesday, Jul 19, 16 @ 7:12 pm:
Director means the Director of CMS
Yeah, Mike Hoffman, I wouldn’t trust him as far as I can throw him.
- Demoralized - Tuesday, Jul 19, 16 @ 7:22 pm:
Honeybear
You’re just wrong here. I dont know how else to say it. You dont help the union cause when you spread false info. The union needs to focus on the big fight not on scaring people into not crossing picket lines. People will do what they are going to do.
This whole conversation is turning nonsensical with talk about what will they be paid or where will they work. Enough already. You are just wrong
- Neveranonymous - Tuesday, Jul 19, 16 @ 7:25 pm:
AA,the Personnel Code specifically exempts certain employees in a handful of agencies. Some of those are represented by AFSCME but, otherwise, are only covered by the Rutan decision.
- Honeybear - Tuesday, Jul 19, 16 @ 7:56 pm:
Demoralized, I don’t see how I’m wrong. I’m not spreading false information. I’m pretty sure I’m right. And what do you know of the big fight? Are you a state employee. Do you have to work under this crap day in and day out. Are you a labor attorney. Do you deal with the destruction of peoples lives as I do? Huh, well do you? No I’ve got a beef and valid point and as far as I know I’m NOT LYING! How many times have the Rauner folks lied. No I might be wrong but I always say so. No Rauner and his lickspittles will lie to your face and you know it. Don’t you dare lecture me pal.
- Dread - Tuesday, Jul 19, 16 @ 8:23 pm:
I could be wrong but it appears that many employees post to this blog during their regular work hours instead of performing the work for which they were hired.
- PENSIONS ARE OFF LIMITS - Tuesday, Jul 19, 16 @ 8:40 pm:
Yours,
JT
-Not mine!
- Cardsfan - Tuesday, Jul 19, 16 @ 9:12 pm:
@ Dread and Soil M
You realize not all union employees work M-F, 8:30am-5:00pm, right? There are many state workers (DHS, DOC, ISP, etc) who work 3pm-11pm or 11pm-7am with weekdays off.
- PENSIONS ARE OFF LIMITS - Tuesday, Jul 19, 16 @ 9:55 pm:
“State workers still dont understand that posting on here during their work hours really does not help their cause in the eyes of the general public. And could be considered Union Activity during work hours.”
-Jealous much?
- steward - Wednesday, Jul 20, 16 @ 12:00 am:
“State workers still dont understand that posting on here during their work hours really does not help their cause in the eyes of the general public. And could be considered Union Activity during work hours.”
Union Activity huh? In capital letters no less. Mind pointing to the policy or law that says posting to a blog is union activity?
- Checkin' In - Wednesday, Jul 20, 16 @ 12:08 am:
Warthog, Terranova admited that the state was the one that presented the “last best and final offer” which would indicate that they were the ones that refused to negotiate any further, not AFSCME.
- Present - Wednesday, Jul 20, 16 @ 7:39 am:
“State workers still dont understand that posting on here during their work hours really does not help their cause in the eyes of the general public. And could be considered Union Activity during work hours.”
Sending employees emails like this is disrupting and ethically wrong. I took the test.
- Demoralized - Wednesday, Jul 20, 16 @ 7:49 am:
Honeybear:
Yes, I am. And my spouse is in the union so I have a personal stake in this. And yes I deal with union issues frequently. And yes you are wrong. If you want to continue to be hysterical that’s fine. But, you’re not helping. I usually like your comments and enjoy reading them but in this case you are wrong. I’m sorry you don’t believe me.
Union employees won’t be “at will” if they come to work. Period. End of story. I know that for a fact.
Union employees who cross the picket lines won’t be paid whatever the heck someone decides to pay them. Their pay will be the same. I know that for a fact.
- Honeybear - Wednesday, Jul 20, 16 @ 8:35 am:
Demoralized. I never said anything about being paid differently.
- Robert the 1st - Wednesday, Jul 20, 16 @ 8:36 am:
=“State workers still dont understand that posting on here during their work hours really does not help their cause in the eyes of the general public. And could be considered Union Activity during work hours.”
-Jealous much?=
LOL. Of being bored to tears and convincing yourself you’re worth a paycheck and pension? What a comment.
- Honeybear - Wednesday, Jul 20, 16 @ 10:33 am:
Okay this is after the fact but I found a great reference http://www.bls.gov/opub/mlr/2001/01/art1full.pdf
Turns out we both have arguments. Workers who cross the picket line AND resign from the union could be AT WILL except when they fall under either the public policy exception, but really that only applies to certain circumstances, like being fired for not lying to jury etc. But Brockmeyer v. Dun&Bradstreet limited the public policy exception “even if the public may derive benefit from it”.
Now there may be a Implied-contract exception but it’s really got to be in the manual or code “for just cause only”. I didn’t see that anywhere. All I saw was “at the discretion of the director”. Knowing Mike Hoffman, that ain’t gonna go well for workers.
So technically you could be right under those two exceptions to At-Will doctrine, but I’ve got a case that those wouldn’t apply. Plus if someone did get fired, it would literally take years to adjudicate.
- Mad Brown - Wednesday, Jul 20, 16 @ 11:10 am:
Robert the Jerk, I mean 1st…”LOL. Of being bored to tears and convincing yourself you’re worth a paycheck and pension? What a comment.”
Wow, just wow. Please expand on your powerful position to value the worth of other people.
- Pelonski - Wednesday, Jul 20, 16 @ 5:13 pm:
Honeybear,
Referencing that article is like referring to the Indiana tax code when filling out you Illinois income tax return. While it uses much of the same language, it covers different people.
That article is a discussion of the general at will principles which apply to the average employee. States and those states’ employees follow different rules. In Illinois, the rules for state employees are set by the state statutes and the personnel code. With the exception of the small numbers of employees who are exempt, state employees are subject to these rules. If you actually read the personnel code, you will see that it provides extensive protections for employees. Labor agreements can override certain provisions, but in the absence of a labor agreement, the personnel code would stand.
That being said, bargaining unit positions don’t suddenly become non-bargaining unit positions when a strike occurs. If the state is able to impose its last, best, and final offer, they will be bound by the terms of that offer.
Spreading misinformation is not helpful, and the more that occurs from union activists, the harder it is going to be for them to convince the average employee to participate in a strike.