3 key takeaways from the AFSCME impasse decision

Mailee Smith

Senior Director of Labor Policy and Staff Attorney

Mailee Smith
September 13, 2016

3 key takeaways from the AFSCME impasse decision

On Sept. 2, a state administrative law judge issued a 400-page recommendation regarding the status of contract negotiations between Illinois and the state’s largest government-worker union. Three important things to know about the decision include: the state and AFSCME are in uncharted territory in their negotiation-related proceedings, the judge found the parties have reached impasse on 5 of 12 contested issues and the judge questioned AFSCME’s testimony and behavior during negotiations.

A state administrative law judge, or ALJ, concluded Sept. 2 that Illinois’ largest government-worker union is at an impasse with the state on some issues in contract negotiations. The ALJ will send her recommendation regarding the negotiations to the Illinois Labor Relations Board. But the labor board is not bound to follow that recommendation, and in her decision, the ALJ has disclosed numerous facts that would allow the board to depart from her recommendation and declare a total impasse between the parties.

The contract between Illinois and the American Federation of State, County and Municipal Employees expired June 30, 2015. Formal negotiations for a new contract started Feb. 9, 2015, and resulted in 24 negotiating sessions for a total of 67 days.

While the governor aimed to bring state-worker costs more in line with what Illinois taxpayers can afford, AFSCME continued to demand contract provisions that would cost the state an additional $3 billion in salary and benefit increases.

This standstill led the governor to ask the Illinois Labor Relations Board to declare the parties at impasse, or deadlock. Once such a declaration of impasse is made, the state is free to implement its last, best contract offer. AFSCME, in turn, could decide to strike.

Impasse proceedings started with an ALJ, who was tasked with hearing testimony and reviewing all of the data before determining whether the parties had reached impasse and making a recommendation based on that to the Illinois Labor Relations Board.

The ALJ issued her long-awaited recommendation Sept. 2. She recommended the labor board declare the parties at impasse on some issues, but not on others. Here are three key things to know about her recommendation.

  1. The parties are in uncharted territory and are a long way from resolution.

Everything that has happened since January 2016 – when Rauner asked the labor board to declare the parties at impasse – is new territory. The Illinois Labor Relations Board has never been called upon to declare such an impasse, and AFSCME has never gone on strike. Of course, this is because previous governors have kowtowed to AFSCME’s demands, to the point of granting the union excessive contract perks.

The ALJ herself also strayed from typical labor law expectations. She did not issue a straightforward “impasse or no impasse” recommendation on the entirety of the state’s contract proposal, but concluded that the state and AFSCME are at impasse on some provisions in the contract and not at impasse on other provisions. Furthermore, the ALJ decided she was precluded from making a determination on still other provisions.

Unfortunately, it will be a long time before taxpayers see any resolution between AFSCME and the state. The parties will now submit written arguments to the labor board, which will not likely hear the case until its November meeting. Regardless of whether the labor board then decides to accept the ALJ’s recommendation or go its own way, the losing party can appeal to the state courts.

This means taxpayers should expect resolution between AFSCME and the state no earlier than 2017.

  1. The ALJ concluded that AFSCME and the state are at impasse on 5 of 12 contested issues – but left room for the Illinois Labor Relations Board to declare impasse as to the entire contract.

As of January 2016, AFSCME and the state had not come to agreement on 12 different issues, which the parties refer to as “packages.” The ALJ, however, determined impasse exists only with respect to five of these packages. If the labor board accepts the ALJ’s determination on those five packages, the state could implement its last, best offer on those contested issues.

  • Subcontracting – The state reserves the right to subcontract any work it deems necessary. This provision would help the state operate in a more flexible and efficient manner, ultimately allowing the state to contract work out to a lower bidder.
  • Vacation/holiday scheduling/leaves of absence – The state made revisions to the way certain vacation and holiday provisions and leaves of absences are handled.
  • Department of Justice/Department of Juvenile Justice Roll Call – The state has proposed changes to the roll call system in DOJ and DJJ.
  • Mandatory overtime – The state’s proposal would give it more flexibility in requiring overtime when staffing is unexpectedly low.
  • Management rights and check-off/fair share – The state’s proposal explicitly states that the fair share provisions of the contract – which require non-members to pay fees to the union – will no longer remain in effect if the union loses the support of a majority of workers or if the Illinois Supreme Court or United States Supreme Court rules that such fair share fees are unconstitutional. Should one of those courts rule it is unconstitutional to require workers to pay fees just to keep their jobs, the requirement that workers pay fair share fees would be void.

The ALJ concluded that the state is not at impasse on four packages, because she felt the parties were still making movement toward agreement with respect to:

  • layoff,
  • outstanding economic issues such as holiday pay and overtime hours,
  • health and safety issues,
  • classification of certain jobs.

But the labor board could reach a different opinion on these issues based on some of the facts the ALJ herself reported. For example, the ALJ explained that AFSCME had rejected all of the state’s proposals to make the layoff provisions less cumbersome, and had not offered any suggestions to make the process better. That hardly sounds like a party moving toward agreement. To that end, the labor board could use the facts the ALJ outlined to make a determination of impasse on some or all of these other packages.

Finally, the ALJ concluded that the parties are at impasse on three other packages, but she was precluded from making a final determination based on procedural grounds:

  • wages,
  • health insurance, and
  • non-discrimination/Upward Mobility Program/filling of vacancies.

On each of these packages, the union claimed it made requests to the state for relevant information, but the state either had not provided the information or did not provide it in the timeframe the union wanted it. Because of these requests, the ALJ decided she was precluded from recommending impasse – even though she found that AFSCME and the state were deadlocked on each of these packages.

Again, there are ample facts in the record, and presented by the ALJ, that would allow the labor board to declare impasse on these packages. For example, during the last week of negotiations (leading up to Jan. 8), the state’s negotiating team indicated its belief that the state had complied with all of AFSCME’s information requests, and asked the union to confirm. AFSCME Executive Director Roberta Lynch indicated at least twice that she would check and get back to the state. But the union did not do so until Feb. 11.

Moreover, the ALJ concluded that the evidence presented to her “does not support that the requested information [by AFSCME] was likely to alter the position the Union had taken that led to the deadlock.” In other words, even if AFSCME had received the information it allegedly requested, it would not have made any difference. The parties would still be deadlocked.

Because the information AFSCME sought – which the ALJ claimed precluded a determination of impasse – wouldn’t have mattered, the labor board is left with substantial room to hold that the parties are at impasse on these remaining packages.

  1. The ALJ questioned AFSCME’s testimony and behavior during negotiations.

Throughout her recommendation, the ALJ related portions of the parties’ evidence and testimony. Significantly, she called into question AFSCME’s testimony on several points.

For example, she noted that AFSCME Deputy Director Mike Newman made public comments casting the governor in a negative light, claiming that Rauner had made clear his intent to force a strike. But the ALJ concluded, “this comment is inconsistent with what the State was saying at the [negotiating] table and inconsistent with the parties’ efforts to continue to meet….” She also concluded that “at best, the Union misrepresented” comments made at the table.

And she found another of Newman’s claims “hard to believe.”

The ALJ also addressed AFSCME’s statements and actions in regard to Senate Bill 1229, the 2015 bill that would have forced the state into an unbalanced arbitration process before unelected, unaccountable arbitrators. She stated, “At hearing, Newman testified that the interest arbitration bill was intended to assist bargaining by making the parties present more reasonable proposals at the table. However, his statements and the statements published on the AFSCME website belie that explanation.” In fact, the ALJ stated that AFSCME’s attempt to alter existing labor laws with SB 1229 “seems inconsistent with a mindset of good faith bargaining.”

Ultimately, the ALJ concluded that the union’s conduct during negotiations calls into question its commitment to reach an agreement through bargaining. Notably, the ALJ did not raise such concerns about the state’s conduct during negotiations.

Between Newman’s discredited testimony and the union’s questionable conduct during negotiations, the ALJ’s restatement of the facts leaves ample room for the labor board to conclude that AFSCME is not moving toward an agreement with the state. As such, the board could determine the parties are at a total impasse.

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