* The administrative law judge has sent a split recommendation to the Illinois Labor Relations Board regarding the dispute over whether AFSCME and the Rauner administration are legally at impasse on contract negotiations. The Rauner administration claims they are at impasse, AFSCME denies it. There’s something in this recommendation for both sides.

First, a bit of reasoning…

Though the Board could find that there was impasse on one of the three critical issues, and that under the NLRB precedent, this would presumably allow the State to implement its entire last, best, and final offer, I find that this remedy is, like the standard remedy urged by the Union, extreme when applied to this case. The parties were at impasse on a large number of packages, but they were not at impasse on several others. If the State were able to implement its entire last, best, and final offer, the implications and impact would be so enormous that, when applied to this case, it would be destructive of the collective bargaining process and not serve the statutory mission of the Board.

* Some background…

After spending extensive time with the factual and legal matters raised in this case, I am left with the firm conviction that both parties entered negotiations with the intent to bargain and bargain hard. I do not imagine that an objective reviewer of this record will come away with a belief that either side acted as in a completely virtuous manner. However, like all things, good faith bargaining is a sliding scale with some lawful conduct looking less like good faith but not necessarily falling so deficient as to be unlawful bad faith bargaining. Certainly, neither party went out of their way to make negotiations easier on the other or to be overly accommodating, nor is this required of the parties under the law.

Instead, these negotiations reflected a battle mindset on both sides of the table, with each willing to do what it takes to achieve its bargaining goals. However, this mindset does not mean that either side was not sincerely seeking to reach agreement. The Union clearly did not share the State’s interest in having the contract settled expeditiously. The Union contends that the State was unlawfully intransigent on its bargaining goals; accordingly, the Union looks with indifference at the number of proposals the State withdrew and the number of proposals on which the parties reached agreement. The State urges that it came in to bargaining looking for a negotiated agreement, but the Union largely failed to respond to proposals in a way that would actually bring the parties closer together. Despite their many differences in philosophy and approach, I find that record before me, taken as a whole, reflects that each side sincerely hoped to reach agreement, though they had vastly different views of what that agreement should look like and had varying levels of optimism about whether they would actually be successful.

* The decision, such as it is…

Therefore, I am resistant to accept either of the parties’ lawful, yet extreme, positions on remedy. Instead, I recommend that the Board adopt an alternate approach. I recognize that a decision on whether to adopt an alternative remedy is a policy decision that is within the exclusive province of the Board. Some support exists for an alternative remedy in the Board’s precedent, specifically in cases where, as here, that alternative remedy accomplishes the Board’s statutory mission to promote labor harmony and “to provide peaceful and orderly procedures for protection of the rights of all.” […]

I recommend the Board adopt a modified remedy, namely partial implementation. Specifically, I recommend that the Board allow the State to implement the packages on which the parties have reached impasse and for which there exists no other impediment to implementation: Subcontracting; Vacation, Holiday Scheduling, and Leaves of Absence; DOC/DJJ Roll Call (Definition of Terms, Articles V, XII, XVII, XIX & XX); Mandatory Overtime; and Management Rights and Check-off/Fair Share packages. Of course, nothing would prevent the State from continuing to bargain over these issues if it so chose.

On packages on which the parties are not at impasse or that the State either failed to provide information or provide the Union sufficient time to respond once receiving the information, I recommend the Board order the State to provide the requested information and send the parties back to the table for further bargaining and resolution of issues precluding implementation. Those packages include the following: Wages and Steps, Appendix A – Health Insurance, Layoff, Outstanding Economics, Health and Safety Outstanding Issues, and Semi- Automatic/Classification In-Series Advancement.

Awaiting response from both sides.

* The next step…

Pursuant to Section 1200.135 of the Board’s Rules, parties may file exceptions to the Administrative Law Judge’s Recommended Decision and Order in briefs in support of those exceptions no later than 30 days after service of this Recommendation. Parties may file responses to exceptions and briefs in support of the responses no later than 15 days after service of the exceptions. In such responses, parties that have not previously filed exceptions may include cross-exceptions to any portion of the Administrative Law Judge’s Recommendation. Within seven (7) days from the filing of cross-exceptions, parties may file cross-responses to the cross-exceptions… If no exceptions have been filed within the 30-day period, the parties will be deemed to have waived their exceptions.

*** UPDATE 1 ***  Press release…

The following statement can be attributed to Catherine Kelly, Press Secretary for Governor Rauner:

“We appreciate that the Administrative Law Judge concluded that we have been bargaining in good faith for a fair deal on behalf of taxpayers. We are reviewing her opinion to evaluate the next steps as the rest of the agreed-to process continues.”

*** UPDATE 2 *** Council 31…

An administrative law judge of the Illinois Labor Relations Board has dismissed the Rauner Administration’s complaint against AFSCME Council 31 and upheld much of the union’s cross-complaint against the administration.

The ALJ rightly rejected the Rauner Administration’s core contention, finding that the parties are not at impasse on the fundamental issues of wages and health care. She said that the administration has refused to provide information to AFSCME that the union needs to develop proposals and said they must do so. She recommended that the labor board order the state to resume bargaining on these and other issues, and to do so in good faith.

In short, she said that the Rauner Administration should “cease and desist from failing to bargain collectively in good faith with [AFSCME]” and “Upon request, bargain collectively in good faith with the union over the terms of provisions of a successor agreement”. (***see citation below)

“We are pleased that today’s recommendation underlines what AFSCME has been saying all along,” AFSCME Council 31 Executive Director Roberta Lynch said. “There is no impasse on key issues, and the parties should get back to the bargaining table to resolve them.”

There are also points on which the union disagrees with the hearing officer’s findings. For example, AFSCME does not believe that the parties are at impasse on subcontracting and other issues. The union will continue to review the recommended decision, which is voluminous and detailed at more than 400 pages long.

“Ever since Governor Rauner’s representatives broke off negotiations with our union back in January and walked away from the bargaining table, AFSCME has repeatedly made clear that we want to reach a fair agreement and we are prepared to do the hard work of compromise to make that possible,” Lynch said.

In contrast, the Rauner Administration for eight months has refused to even meet with the union bargaining committee. Instead Governor Rauner wants the unilateral power to impose his demands, forcing public service workers in state government to work under his unfair terms or go out on strike.

Both parties now have the right to file written “exceptions” on points of disagreement with the recommended decision, as well as replies to the other party’s exceptions. Those filings and the recommended decision all go before the full labor board, which has indicated it could consider them and act on a final decision in November.

“We hope the labor board’s final ruling will affirm the hearing officer’s recommended order to resume negotiations,” Lynch said. “But there is no need to wait—Governor Rauner should direct his representatives back to the bargaining table now, to work with AFSCME and develop a compromise agreement that is fair to all.”

***FOOTNOTE:

From the recommended decision and order [https://www.illinois.gov/ilrb/decisions/decisionorders/Documents/S-CB-16-017rdo.pdf, pages 248-9]:

It is hereby ordered that the State of Illinois Department of Central Management Services, its officers and agents shall:

A. Cease and desist from:
1. Failing to bargain collectively in good faith with the American Federation
of State, County and Municipal Employees (Union) by failing to provide
requested information;
2. Failing to bargain collectively in good faith with the Union by declaring
impasse on packages where the parties are not at impasse;
3. Failing to bargain collectively in good faith with the Union by declaring impasse on packages when the State has failed to provide requested information or failed to provide the Union with a sufficient opportunity to
review and respond to the information; and
4. Failing and refusing to bargain collectively in good faith with the Union,
in any like or related manner, interfering with, restraining or coercing its
employees in the exercise of the rights guaranteed them in the Act; …

B. Take the following affirmative actions designed to effectuate the policies of the Act:
1. As soon as practicable, provide the Union with the following information…
2. Upon request, bargain collectively in good faith with the Union over the terms of provisions of a successor agreement