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Decatur v. Ill. St. Labor Rel. Board

OPINION FILED OCTOBER 30, 1986.

THE CITY OF DECATUR, PETITIONER-APPELLANT,

v.

THE ILLINOIS STATE LABOR RELATIONS BOARD ET AL., RESPONDENTS-APPELLEES.



Petition for review of order of State Labor Relations Board.

JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:

The issue here is whether the Illinois Public Labor Relations Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 1601 et seq.), requires a city to bargain in good faith with the exclusive representative of its employees over the proposal that matters of discipline, currently resolved by reference to the civil-service provisions of the Municipal Code of 1961 (Ill. Rev. Stat. 1985, ch. 24, par. 10-1-1 et seq.), be resolved by mandatory arbitration. We hold that the Act does not require collective bargaining on that proposal.

On June 11, 1985, respondent, American Federation of State, County, and Municipal Employees, Local 268 (Local 268), filed charges with respondent, the Illinois State Labor Relations Board (Board) pursuant to section 11(a) of the Act (Ill. Rev. Stat. 1985, ch 48, par. 1611(a)), alleging that petitioner, the city of Decatur (city), was engaging in an unfair labor practice during negotiations for a new collective-bargaining agreement by refusing to bargain in regard to Local 268's previously described proposal. The city agreed that it was refusing to bargain on that issue. After a hearing before a hearing officer, the Board issued an order on January 29, 1986, approving a recommended order by the hearing officer finding that the city was required to bargain on the issue and that it was guilty of an unfair labor practice. The order also required the city to cease and desist from the practice. The city has appealed to this court pursuant to section 11(e) of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 1611(e)). We reverse.

Consideration of several sections of the Act is necessary to a determination of the issue presented. The most important of these is section 7, which sets forth in its first two paragraphs that an employer and the exclusive representative had a duty to bargain collectively. This duty includes a requirement "to negotiate in good faith with respect to wages, hours, and other conditions of employment" not excluded by a management-rights provision of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 1607). (The parties agree that the management-rights provision, contained in section 4 (Ill. Rev. Stat. 1985, ch. 48, par. 1604), is not applicable to the question concerning disciplinary procedures involved here.) The third paragraph of section 7 then states:

"The duty `to bargain collectively' shall also include an obligation to negotiate over any matter with respect to wages, hours and other conditions of employment, not specifically provided for in any other law or not specifically in violation of the provisions of any law. If any other law pertains, in part, to a matter affecting the wages, hours and other conditions of employment, such other law shall not be construed as limiting the duty `to bargain collectively' and to enter into collective bargaining agreements containing clauses which either supplement, implement, or relate to the effect of such provisions in other laws." (Emphasis added.) Ill. Rev. Stat. 1985, ch. 48, par. 1607.

Two other sections of the Act are also significant. Section 8 provides that a collective-bargaining agreement entered into under the Act "shall contain a grievance resolution procedure" applicable to all employees and "shall provide for final and binding arbitration of disputes concerning the administration or interpretation of the agreement unless mutually agreed otherwise" (Ill. Rev. Stat. 1985, ch. 48, par. 1608). Section 15(a) of the Act states:

"In case of any conflict between the provisions of this Act and any other law, executive order or administrative regulation relating to wages, hours and conditions of employment and employment relations, the provisions of this Act or any collective bargaining agreement negotiated thereunder shall prevail and control." Ill. Rev. Stat. 1985, ch. 48, par. 1615(a).

The essence of the city's contention that it was not required by the Act to bargain with Local 268 on the issues involved is that (1) the statement in section 7 that its duty concerns matters "not specifically provided for in any other law or not specifically in violation of the provisions of any law" must be taken to mean what it says; (2) the second sentence, which refers to laws which pertain "in part" to wages, hours, and other conditions of employment, creates only a duty to bargain in regard to matters not specifically provided for in the law but which implement, supplement, or relate to the law but do not conflict with the law; and (3) the civil-service provisions of article 10 of the Municipal Code of 1961 which were adopted by referendum by the city before the enactment of the Act constitute "law" within the meaning of section 7.

The city also maintains that the statement in section 15(a) indicating that the terms of a collective-bargaining agreement control over other laws does not negate the exclusions from required bargaining set forth in section 7. The city asserts that section 15(a) gives a power to bargain which covers a larger area than that upon which bargaining is mandated. It notes that section 15(a) makes no reference to a duty to bargain. In regard to its duty to bargain over matters which merely implement, supplement, or relate to existing laws, the city concedes that Local 268's request for a prohibition against compulsory polygraph examinations being imposed upon its employees is a matter upon which it is required to bargain.

Local 268 and the Board maintain that the limitations placed upon the duty to bargain by section 7 because of the existence of other laws should be construed narrowly to effectuate what they consider to be the remedial nature of the Act, its stated purpose of regulating labor relations between public employers and employees, and its policy of enabling employees to choose representatives to bargain over matters of their interest. (Ill. Rev. Stat. 1985, ch. 48, par. 1602.) They point out that sections 4, 6, and the second paragraph of section 7 all speak of the duty of employers to bargain in regard to wages, hours, and conditions of employment without any statement of restriction except those of the managerial rights of the employer. Local 268 and the Board also contend that the requirements of section 8 for a grievance-resolution procedure and the precedence given by section 15(a) to terms of a collective-bargaining agreement over other laws are inconsistent with the city's contention that the adoption by the city of the civil service provisions of the Municipal Code relieve the city of the obligation to bargain on the issue involved.

The most serious argument presented by Local 268 and the Board concerns the fact that the city is, admittedly, a home rule city. They are concerned with the possible ability of the city and other home rule units to exercise those home rule powers to immunize themselves from bargaining on various matters concerning wages, hours, and conditions of employment by enacting ordinances or regulations which would have the force of law and thus invoke the restrictions of section 7. At oral argument, Local 268 illustrated this argument by reminding us that in Peters v. City of Springfield (1974), 57 Ill.2d 142, 311 N.E.2d 107, the court held that a home rule city which had previously adopted civil-service provisions of article 10 of the Municipal Code of 1961 had the power by ordinance to adopt conflicting requirements which pertained to mandatory retirement. Local 268 also expressed concern about administrative regulations which might be deemed to constitute laws within the meaning of section 7 and place restriction upon the issues upon which negotiation is mandated. Local 268 and the Board argue convincingly that the legislature could not have intended to allow home rule cities to insulate themselves in this way from the duty to bargain on some issues.

• 1 However, we do not resolve the foregoing problem by construing the word "law" in section 7 as excluding the civil-service provisions of the Municipal Code of 1961 as adopted by cities. Rather, for reasons subsequently stated, we construe the word "law" in section 7 as excluding ordinances and regulations enacted by units of local government. Although we know of no Illinois case which is precedent on the subject, we note that, in other jurisdictions, ordinances are not always considered to be laws. (56 Am.Jur.2d Municipal Corporations sec. 345, at 371 (1971).) Regulations issued pursuant to a statute are often deemed to "have the force of law." (See Davis v. Marathon Oil Co. (1976), 64 Ill.2d 380, 390, 356 N.E.2d 93, 97; 2 Am.Jur.2d Administrative Law sec. 295, at 122 (1262).) Clearly, if an ordinance enacted by a unit of local government is not a "law" within the meaning of section 7, a regulation adopted by the unit would not be a "law."

Our conclusion that the exercise of the home rule power of units such as the city does not make "law" within the provisions of section 7 is supported by the language of the Illinois Constitution of 1970, article VII, section 6 (Ill. Const. 1970, art. VII, sec. 6). Nowhere does it speak of an enactment of a home rule unit as a "law." Rather, section 6 speaks of the powers a home rule unit possesses in these words: (1) in subsection (e) of "the power that the General Assembly may provide by law" in regard to the infliction of certain punishments and certain licensing and taxing measures; and (2) in subsection (f) of a power to "adopt, alter or repeal" a form of government and of a power to provide for its officers and their method of selection and tenure "only as approved by referendum or as otherwise authorized by law." (Emphasis added.) (Ill. Const. 1970, art. VII, secs. 6(e), (f).) In subsections (g), (h), (i), (j), (k), and (l) of section 6, the Constitution speaks of the General Assembly limiting or granting "by law" certain powers of a home rule unit. (Emphasis added.) (Ill. Const. 1970, art. VII, secs. 6 (g), (h), (i), (j), (k), (l).) Section 6 clearly restricts the use of the word "law" to enactments of the General Assembly.

One of the two cases relied upon most heavily by Local 268 and the Board in support of their contention that the restrictive provisions of section 7 should be given a very narrow construction is AFSCME Council 75, Local 350 v. Clackamas County (1984), 69 Or. App. 488, 687 P.2d 1102. There, the court held that a county was required under a labor-relations statute (Or. Rev. Stat. sec. 243.650 et seq. (1984)) to bargain with its employees' union over changes in procedures in relation to such matters as discharge, layoff, and grievance. The changes requested by the union were in conflict with the existing statute providing for a civil-service system which the county had opted to adopt. That court emphasized that the labor-relations statute was (1) more recently enacted; (2) mandatory upon the county, while the civil-service statute was optional; and (3) intended to be more comprehensive than the civil-service statute. In each of those respects, the situation in Clackamas County ...


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