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Thursday, January 12, 2017

AFSCME Sues Illinois Labor Relations Board For Allegedly Violating Open Meetings Act

In an uncanny twist to the ongoing collective bargaining negotiations between AFSCME and the State of Illinois, on December 6, 2016 AFSCME filed a lawsuit alleging the Illinois Labor Relations Board violated the Open Meetings Act when it issued its written decision and order finding that the parties were at impasse in the negotiations. The complaint also included a request that the court issue a temporary restraining order to prohibit the state from implementing the terms of its "Last, Best, and Final Offer."

These unusual circumstances and allegations of Open Meetings Act violations are the result of more than two years of contentious collective bargaining negotiations. By way of background, in early 2015, the State and AFSCME began negotiating for a successor collective bargaining agreement. In those negotiations, the parties negotiated and agreed to a series of Tolling Agreements whereby they agreed to continue meeting and negotiating in good faith for a successor bargaining agreement and to not to engage in strikes, work stoppages, work slowdowns, or lockouts unless they mutually agreed that an impasse had been reached in the collective bargaining or until the Illinois Labor Relations Board resolved the issue concerning the existence of an impasse. To that end, on January 8, 2016, the State determined that an impasse existed and presented AFSCME with a Last, Best, and Final Offer and pursuant to the Tolling Agreement. After AFSCME disagreed that the parties were at impasse, the State submitted the issue to the Illinois Labor Relations Board as an unfair labor practice charge. 

On November 15, 2016, the Illinois Labor Relations Board orally declared there was an impasse in the collective bargaining negotiations. Thereafter, the State began implementing the terms of its Last, Best, and Final Offer, which included the following contract terms: $1,000 merit pay for employees who missed less than 5% of assigned work days during the fiscal year; overtime after 40 hours; bereavement leave; the use of volunteers; the beginning of a merit raise system; drug testing of employees suspected of working impaired; and the formation of a task force to look into workplace safety. The Illinois Labor Relations Board issued its written decision on December 5, 2016, but subsequently reissued the decision at its December 13, 2016 Board Meeting.

Since the ILRB oral decision, AFSCME has launched a full litigation assault to sidestep the Illinois Labor Relations declaration of impasse by first filing for a TRO in St. Claire County on December 1, 2016 to prohibit the State from implementing the terms of its Last, Best, and Final Offer and then filing on December 6, 2016 the action challenging to the Illinois Labor Relations Board’s impasse order as a violation of the Open Meetings Act. In its lawsuit, AFSCME purports that the Illinois Labor Relations Board circumvented the Open Meetings Act by making substantive determinations in private and outside the November 15, 2016 Board meeting. AFSCME’s claims are based on alleged differences between the Illinois Labor Relations Board’s written decision issued on December 5, 2016 and its oral decision issued at the November 15, 2016 Board meeting.

Even though it is unlikely any inconsistencies AFSCME alleges between the Illinois Labor Relation Board’s oral decision and its written order would not have changed the result, the circuit court granted AFSCME’s request for the TRO against the Illinois Labor Relations Board and suspended the enforcement of its written decision permitting the implementation of the State’s Last, Best, and Final Offer. Indeed, the Illinois Labor Relations Board likely cured any error if there was one by reissuing the written order on December 13, 2016. But, the net effect of the granting of the TRO is that the negotiations are back where they started – at a standstill.

We will provide updates or developments as this case proceeds.

Post Authored by Jeff Brown, Ancel Glink


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