What is organized labor going to do for state employees? New OCB plays key role for agencies under governor
HIS administration was eight months old when Gov. Dan Walker issued his sixth executive order, this one permitting the approximately 65,000 state employees under his direct jurisdiction to organize and bargain collectively. The executive order applies mainly to employees of the 21 executive code departments. Other state employees, including state police, university an community college faculty and staff, employees of the secretary of state and office of superintendent of public instruction, etc., are not covered.
Walker's decision was at once hailed and reviled. It was a payoff to labor for their support of his gubernatorial campaign, some charged. Others believed it was the act of a governor truly concerned with the rights of a significant portion of the state's work force.
Labor organizations disagree
Even leaders of the state's largest public employee organizations differed sharply over the meaning of Executive Order No. 6. "I think it's entirely unnecessary," said William Hardy, the executive director of the 15,000-member Illinois State Employees Association (I SEA). "We already have a decent system for obtaining rights and benefits," Hardy told a reporter the day after the order was issued. "We have met with the legislature and the Department of Personnel for years in meet-and-confer sessions, and that has worked out well. There is no evidence I know of that shows collective bargaining makes state government more efficient or bring employees more rights or benefits."
After the legislature failed to enact collective bargaining legislation for public personnel, Walker issued an order under which wages, hours, and other conditions are negotiable items
But Lawrence Reinold, state operations director for the American Federation of State, County, and Municipal Employees (AFSCME), disagreed: "State employees are going to gain the fundamental things that workers in other sectors enjoy: the opportunity to put your voice as a worker in the wages, terms, and conditions of your employment. It opens up the door instead of having unilateral decisions made all the time by management." The 26,000 members of the Illinois Federation (AFSCME), Reinold said, favor collective bargaining.
The governor's action was no real surprise; it was foreshadowed by much activity by organized labor. As early as 1937 the Teamsters sought to represent highway drivers in Cook County. And a group of employees at the Jacksonville State Hospital joined together in the early 1940's to obtain a union charter. The Illinois General Assembly has considered a number of bills on collective bargaining since the first was introduced in 1945. In fact, the state has had a history of bargaining conditions and wages with unions over a period of several years. But there were no guidelines for those negotiations.
Walker: End the confusion
In his executive order, Walker noted that a failure to establish those bargaining procedures had deprived public employees of the rights accorded other workers in Illinois. The right to bargain collectively, he said, would serve both the employee and the public interest, and it would encourage career employment and help keep patronage out of government. According to his staff, Walker believed it was time to end the confusion over the matter of collective bargaining, time to remove it from the almost annual ploys to prevent its enactment into law, and time to determine more precisely what could be bargained for by both the employees and state.
"The key to the governor's viewpoint was to provide protection to the employee and to provide protection to the state when, in fact, collective bargaining was a fait d'accompli," said Andrew Kramer, a young and aggressive Chicago labor lawyer chosen by Walker to be the first executive director of the Office of Collective Bargaining.
"It was the governor's strong conviction that there was a need at this time to do something," Kramer said. "We all recognize that the executive order is a small but significant step. There is a great need to encompass other public employees who are not covered under the executive order and cannot legally be covered under the executive order."
The legislature had gone home in early July 1973, and although bills had again been introduced to deal with collective bargaining, none had left either of the two houses. The governor had awaited a measure, according to Kramer, and when none came, he initiated his own.
There are a number of precedents for guiding collective bargaining
72 Illinois Issues/March 1975
State 'not required to negotiate' merit system; agency policies, programs, functions, and budgets; or decisions on delivery of services or utilization of technology
procedures. More than two million employees of the federal goverment bargain. The states that have at least some statutory provisions for employee negotiations number more than 35, and 15 of these have comprehensive collective bargaining laws.
Neutral third party
Under the governor's order, the Office of Collective Bargaining (OCB) was created to carry out the order's terms, as well as rules and regulations drafted by the Department of Personnel. Established to operate as a neutral third party, the office is responsible for determining appropriate employee bargaining units, certifying bargaining representatives, and protecting the rights of both employees and employers, determining and resolving unfair labor practices, and settling negotiability disputes.
Bargaining units need not be restricted to any particular agency or department of state government, but can embrace a number of agencies where employees do similar work and are in the same or similar classifications. The executive order calls it "community of interest." An employee organization or an employer can petition the Office of Collective Bargaining for recognition of a group as an appropriate bargaining unit. The petition by an organization must be accompanied by the signatures of at least 30 per cent of the employees in the proposed unit. If the proposed unit is appropriate by criteria in the executive order, elections by secret ballot follow.
The organization winning a majority of the votes in those elections is certified by the Office of Collective Bargaining as the exclusive bargaining agent for employees in that unit. Security officers in the Department of Corrections were the first unit to elect a bargaining agent.
AFSCME, the only organization listed on the ballot, won 97 per cent support from among those voting.
The Office of Collective Bargaining can be drawn into the bargaining process in cases of disputes. Negotiable items as defined by the order are: wages, hours, and other conditions of employment within legal and fiscal limitations. Where there are disputes, the director of personnel or any party to the negotiations must notify the OCB within 20 days after the dispute is joined. It is up to the OCB to determine whether a subject or position is negotiable and that determination is binding.
Although the executive order does not rule them out, it says the state "shall not be required to negotiate" the merit and competitive examination systems; policies, programs, and statutory functions of an agency; the budget of an agency; and decisions on standards, scope, and delivery of services or utilization of technology. The same applies to state retirement systems and health and life insurance programs.
Mediation procedures
Mediation is provided for in the rules and regulations of the Department of Personnel governing public employee collective bargaining issued pursuant to the executive order. Either bargaining party can request the state director of labor to appoint a mediator or to furnish a list of mediators from which a mediator can be chosen. Parties at the bargaining table are encouraged to establish their own impasse resolution procedures. But in the event that no agreement has been reached by May 1 of the calendar year, the rules require that an impasse be declared. At that point, the director of labor is required to appoint a mediator. If ,the dispute continues for 15 days after his appointment. either party can request assistance from the Advisory State Impasse Resolution Panel, which includes the director of labor as chairman, the chairman of the Civil Service Commission, and the executive director of the Office of Collective Bargaining.
The panel can order mediation and call up a fact-finder whose findings and recommendations are forwarded to the bargaining parties. If the parties have not settled the dispute within five additional days, the panel can make public its findings and recommendations. If the parties request, the advisory panel can recommend impasse resolution procedures and can appoint an arbitrator to resolve the impasse.
Silent on strikes
The most controversial aspect of any collective bargaining program is whether it provides for a right or prohibition to strike. The provision is not in the governor's order, and with good reason, Kramer believes. "There is no right to strike for public employees in Illinois, absent legislation," he said. "The Supreme Court decided in a case in May of last year [1973] that public employees do not have a right to strike." But the attempt to prohibit strikes, he added, would probably be useless.
"I don't think denying the right to strike works .... Strikes in Illinois occur. We don't have anything granting public employees the right to strike. Obviously, you have to protect the public safety, health, and welfare. I believe that can be done even if you grant a limited right to strike. And I think the experience in Hawaii, the experience in Pennsylvania, the experience in Alaska has shown that granting public employees a limited right to strike has really not disrupted service to the essential functions of the state or municipal bodies."
March 1975 /Illinois Issues/73
The AFSCME's Reinold asserted that a provision permitting strikes was essential. Without the leverage it would provide, state employees would lose much of the intent of collective bargaining, he believes- He said: "I think what people have to understand is that when you're talking about collective bargaining you're talking about an equalization of the parties across the table. The economic power of the boss, be he a public or private employer, is the basic fundamental power he sits there with. There can be no misunderstanding about just what the employer brings to the bargaining table. The boss has not only the responsibility to administer public concern in this matter and see that services continue, he also has to be concerned that if he doesn't approach this in an honest, open, and honorable way, the employees are going to walk out and disrupt those services."
Strike issue overplayed
Reinold believes, however, that the issue of strikes as it relates to collective bargaining has been overplayed. He called it an issue that draws more attention in the press than the far greater number of settlements achieved without problems. He claimed, for example, that some 98 per cent of the contracts across the nation were settled last year without dispute. Of the remaining two per cent, only eight-tenths of one per cent resulted in strikes.
"If you have a bill that includes the right to strike, if it has a mechanism to settle disputes that puts the onus on public management to sit down in an honorable, honest, and open fashion and deal and collectively bargain with the public employee, and if you have a good, comprehensive law that covers that, you won't find strikes," Reinold said.
Reinold's thesis is too simplistic, according to representatives of the Illinois State Employees Association (ISEA). The ISEA has in the past avoided commitments one way or the other. Although there is nothing in the organization's constitution that prohibits strikes by its members, the association reportedly has gone on record against them. Hardy indicated that the question of strikes should be considered more than just a lever to obtain additional benefits in the bargaining process. "I certainly don't respond well to ultimatums, and I suspect that if
The state of Illinois is the largest employer in the State, with 117,000 employees. Slightly more than half of these employees work for agencies and departments subject to the Governor. They do not have collective bargaining rights while workers in the privates sector do. Thus, State employees have been deprived of important rights accorded other works in Illinois.
Experience in private industry, the federal government and other states has demonstrated that constructive collective bargaining leads to operational effeciency and employee well-being. Therefore, the public interest in the orderly and effecient operation of State government will be served by establishing the right of employees to organize and bargain collectively.
Although some State employees now belong to employee unions, there is no procedure for determining what union has the right to represent any state employees, and noe guidelines with regard to the duties and rights of any such union. Establishing orderly labor relations procedures will encourage career employment and help keep patronage out of State government.
The fereral government, as well as other state and local governments, have established collective bargaining right by Executive Order. The Director of Personnel has the duty, under the Personnel Code, "to conduct negotiaitons affecting pay, hours of work or other working conditions subject to this Act." (Personnel Code, § 9 (7) ). To implement this provision, and to discharge my responsibility as Chief Executive to promote the orderly and effecient operation of State government, I hereby order for employees in agencies subject to the Governor:
74 /Illinois Issues/March 1975
Executive Order No.6
Public Employee Colletive Bargaining
1. This Order shall extend to all employees of departments, agencies, boads and commissions whose vouchers are subject to approval by the Department of Finance except supervisor, managerial employees, confidential employees and emergency and temporary employees.
2. Employees convered by this Order shall have the right, freely and withour fear of threat or reprisal, to voluntarily form, join, and assist an employee organization and the right to refrain from any such activity. To achieve, assure and protect these rights, the Director of Personnel shall take appropriate actions (1) to inform employees covered by this Executive Order of their rights hereunder,and (2) to prohibit interference, restraint, coercion, or discrimination against employees in the exercise of these rights.
3. These is here by established an Office of Collective Bargaining, which shall be responsible for the administration of the provisions of this Order and the regulations promulgated by the Director of Personnel pursuant to this Order and the Personnel Code.
4. The Office of Collective Bargaining shall determine whether a particular unit of employees is appropriate for collective bargaining. In determining the appropriateness of the unit, the Office of Collective Bargaining shall: (1) avaid artificial distinctions between groups of employees whose functions and community of interests are similar, without regard to the staturory jurisdiction of any agency; and (2) promote the interest of the State in bargaining on a statewide basis by considering statewide units presumptively appropriate. An appopriate unit shell not combine groups of professional employees and non-professional employee unless the Office of Collective Bargaining determines that the combination is not in conflict with the duties of each group and a majority of the professional employees vote for inclusion in the unit.
5. the Office of Collective Bargaining shall certify an employee organization as the exclusive gargaining representative in an appropriate unit if in an election by secret ballot, the organization is designated as its representative by a majority of employees in the unit.
6. The Director of Personnel or his designated representative, the heads of the agencies covered by this Order or their designated representatives, and the certified representative of the employees shall have the mutual obligation to mee at reasonable times and negotiate in good faith with respect to wages, hours, andother terms and conditions of employment so far as may be appropriate and allowable under applicable laws, and subject to laws regarding the appropriation and expenditure of State funds and the Rules of the Department of Personnel. The obligation to bargain shall not compel either party to agree to a proposal or require the making of a concession. The State of Illinois shall not be required to negotiate with respect to the following matters:
(a). the merit principle and the competitive examination system;
(b). the policies, programs and statutory function of an agency;
(c). an agency's budget and structure;
(d). decisions concerning stadards, scope and delivery of service and utilization of technology.
(e). State Retirement System and the State life and health insurance program.
(f). anything required or prohibited by law.
7. A negotiated collective bargaining agreement shall be reduced to writing and signed by the representative of each of the parties.
8. There is hereby established a State employee Labor Relations Council to consist of the Director of Labor, as Chairman; the Director of Personnel; the Chairman of the Civil Service Commission, and three public member with experience in labor relations to be appointed by the Governor. The Council shall advise the Director of Personnel with respect to the rules and regulations to be issued pursuant to Section 9 of this Order and Provide such further assistance as the Director of Personnelmay request.
9. The Director of Personnel, pursuant to this Order and enbling provisions of the Personnel Code, shall issue such rule and reguations as he deems necessary to carry out and promote the policies and purposes of this Order. Such regulations shall contain, but shall not be limited to provisions relating to: (1) procedures for granting and withdrawal for certification and recognization; (2) procedures for unit determination and clarification; (3) procedures for the handling of employer and employee unfair labor practice charges; and (4) standards for employee organizations.
10. Nothing contained in this Order shall interfere with the current status of employee organizations which have historically represented certain groups of State employees, unless a majority of employees so represented express a contrary desire pursuant to the procedures set forth in this Order and any regulations issued pursuant to this Order.
11. This Order is effective upon filing with the Secretary of State and shall remain in full force and effect unless amended or revoked by Executive action.
Seetempber 4, 1974
Springfield, Illinois
DANIEL WALKER
GOVERNOR
'No right to strike
for public employees, absent legislation,' says OCB spokesman, but he feels forbidding strikes
probably useless.
Other states
grant limited
right to strike
I give an ultimatum to someone else, they aren't going to respond well. I think strikes are a last resort, the result of a total breakdown of efforts."
There are those who believe that the governor's action clearing the way for such discussions was improper. Individuals and groups of this persuasion agree with a Chicago Tribune editorial that said the order ". . . represented a single official's action to do what the legislature had repeatedly refused to do — blanket state employees into trade union ranks, with all the resulting consequences." Detractors of the Walker action say the order carries the force of law, although it was not written in law.
Collective bargaining implied by law
But the Office of Collective Bargaining staff believes that the power of collective bargaining is established by implication in law. The director of personnel has the power to negotiate agreements and that power, they reason, is in essence the power to conduct labor relations. The order itself and the rules and regulations for its administration provide for the recognition of organizations with whom the director of personnel has historically worked on wage and benefit questions for state employees.
in the absence of a law, the governor's order has clarified some rights of employees in bargaining and discussing wages, conditions, and benefits. But for at least one labor organization, the ISEA, it has caused some confusion and the most dramatic change in the tone and attitude of the organization in its 53-year history.
The Teamsters, who have historically represented a large number of employees in the Department of Transportation, and AFSCME had little trouble in responding to the order. Both groups have supported collective
March 1975 / Illinois Issues/75
Legislature in 1975 session considered likely to pass collective bargaining bill, especially with Democrats in control. The strike issue in itself is a question to be resolved by law
bargaining and were willing to work politically for its institution. Some, including the ISEA executive director, charge that the governor's order was a payoff for favors by labor organizations to the Walker campaign. Those charges have never been proved.
One thing the governor's executive order has done is to stimulate competition for memberships among the unions and labor organizations. ISEA is not pleased with this competition. The Teamsters moved quickly to gain recognition as historical bargaining agent for transportation workers, and the ISEA countered with objections to that recognition. AFSCME was an early frontrunner in drives for memberships, importing national staff members from Washington to assist with recruitment. In about two years, the number of state employees belonging to AESCME has grown from 15.000 to 26,000.
ISEA has gained respect
The ISEA was formed in 1921 and its members paid 25 cents a month to support the association's lobbying efforts for health insurance, a merit system, and a retirement plan. The I SEA'S method has been traditionally low-key. Its leaders have gained the respect of the membership and most legislators for their quiet but effective way of handling grievances and for their determined but calm work for measures to benefit state employees.
The ISEA has deliberately avoided partisan leanings. What it gained for its members and other state employees, it gained by establishing good relations with legislative leaders. Executive Director Hardy believes that these relations and the opportunity for the association to remain entirely independent were lost with the issue of Executive Order No. 6.
ISEA now AFL-CIO affiliate
By unanimous decision on July 12, 1974, the ISEA board of directors voted to affiliate with the Service Employees International Union (SEIU), a member of the AEE-CIO. It brought to the ISEA the power of 350 affiliates and 550,000 members nationwide. It also brought an end to the association's non-partisan detachment.
Some ISEA members were angered by the ISEA board's decision. The importance of affiliation required the vote of the membership, they said. In its official publication. The Alerter, the ISEA board attempted to assure its members that they would not be subject to the will of a union. The story included these lines: "Many state employees will consider this an abrupt about-face for an organization which has for years maintained solid independence .... Many ISEA members will, perhaps, fear that their association will lose its independence and identity with affiliation.
"This will not be the case. SEIU has guaranteed the ISEA will have full autonomy with the SEIU family .... SEIU will have no say whatsoever in ISEA administrative affairs — and all relations with the ISEA staff will remain as they are now, under the direction of the ISEA director. All members will remain members of the ISEA — and not members of the international union."
In a discussion about the affiliation, Gene Moats, SEIU vice president, told the Springfield ISEA chapter that the ISEA would continue to set its own policies and goals. But it appears possible that the ISEA will adopt its big brother's methods.
Hardy said that in its new position, the association would not rule out the question of supporting some candidates for office over others. "My board of directors hasn't given me any instructions on that yet," Hardy said. "But since we are now a part of organized labor, and organized labor is very definitely in this area, I don't think it's too far from reality that we might ourselves get into this field as we go along."
There is reason now to believe that the legislature will act in the 1975 session to pass a collective bargaining measure. Rep. Thomas Elanahan (D-, McHenry), considered labor's chief spokesman in the House, has seen a number of his bills bottled up or defeated on votes. But he is sure now that the time for a state law has come and that the law will come in 1975.
The order itself has precipitated action. If the legislature has skirted the issue before, questions raised under the governor's order — the fact that it does not deal with the strike issue, for example — will no longer allow it to do so. Whatever disenchantment over the order exists will have to be removed by enactment of a collective bargaining law or a repeal by the governor of his order.
Democrats, traditionally more inclined to support labor measures, will control both houses of the General Assembly and the governor's chair in the next legislative session. The party has been favorable to collective bargaining for public employees and now has the opportunity to act.
The final, and perhaps the most important point, is that there is likely to be pressure to provide a base in law for collective bargaining. It will, after all, be the legislature's decision to fulfill any agreements on wages, benefits, and conditions of employment worked out between management and labor at the bargaining table.
76/Illinois Issues/March 1975