Local Panel
Charging Party
and
City of
(Department of Police)
Respondent
No. L-CA-04-008
21 PERI 83
2005 PERI (LRP) Lexis 77
Decision and Order
Gallagher, Hubert, Sadlowski
On August 10, 2004, Administrative Law Judge Philip M.
Kazanjian issued a Recommended Decision and Order in the above-captioned case
finding that the City of Chicago (Respondent or City) violated Section 10(a)(4)
and (1) of the Illinois Public Labor Relations Act, 5 ILCS 315 (2002), as
amended (Act), when it entered into intergovernmental agreements with the
Chicago Park District and Metropolitan Pier and Exposition Authority for their
personnel to perform traffic control duties at Soldier Field events that were
previously performed by City police officers, who are represented by the
Illinois Fraternal Order of Police, Lodge 7 (Charging Party, Union or FOP). In accordance with Section 1200.135 of the Rules and Regulations of
the Illinois Labor Relations Board, 80
I. Background facts
The FOP is the exclusive representative of the historical bargaining unit composed of the City’s sworn police officers below the rank of sergeant. The instant case concerns the police officers’ performance of traffic control duties at Soldier Field events, including primarily Chicago Bears football games, and the City’s decision in 2003 to contract with the Chicago Park District (Park District) and Metropolitan Pier and Exposition Authority (MPEA) for their personnel to perform that work.
Soldier Field events require individuals to staff approximately 90 different traffic control posts. Prior to September 2003, the Respondent utilized police officers and traffic control aides in two designated traffic control units within its Police Department (Unit 57 and the Loop Traffic unit) to man various posts located around Soldier Field. On any given day that an event was scheduled at Soldier Field, approximately 12 police officers and eight traffic control aides from these units were available to work the event.
In addition to those employees, the Respondent conducted a “district draw” for each Soldier Field event by which personnel from other police districts would be pulled to staff the remaining traffic control assignments. Only those officers who were regularly scheduled to work the day of the event were eligible for the district draw. The traffic control work at Soldier Field represented simply a change in the officer’s assignment and no overtime was earned for this work. Officers volunteered and assignments were made on the basis of seniority. During the seven Bears games held at Soldier Field in 2001, Unit 57 police officers staffed 76 of the traffic control assignments, 517 assignments were staffed by police officers pulled through the district draw, and 37 assignments were worked by traffic control aides.
On
September 26 and
The City maintains that it has the contractual right to subcontract the traffic control work. Article 23 of the parties’ agreement, entitled “Reassignment of Duties,” provides the following:
Any other provision of this Agreement to the contrary notwithstanding, nothing in this Agreement shall be deemed to prohibit the Employer from hiring or assigning any non-bargaining unit personnel to perform any unit duties as described in Appendix B and/or C n2 provided that no officer covered by this Agreement shall be laid off either as a result thereof or if his non-bargaining unit replacement, if any, has not been laid off. n3
The City asserts that, under Article 23, and the numerous arbitration decisions interpreting that provision, it retains sole discretion to determine how to assign the traffic control work.
Article 23 was first the subject of an arbitration award in 1990, when an arbitrator found that there was an established practice of using a mix of sworn police officers and traffic control aides to perform traffic control duties. He further determined that the parties had agreed that that work would remain mixed, and that though the City could change the mix’s relative percentage of sworn and non-sworn personnel, the use of sworn officers could not be wholly eliminated. Later, in 1993, an arbitrator found that the City could use civilian crossing guards to perform the same traffic control duties at City airports that had been performed by its sworn police officers, and in 1994, another arbitrator held that Article 23 permitted the City to assign civilian traffic control aides to perform traffic control duties at O’Hare airport. Finally, in 1994, an arbitrator determined that the City could assign traffic control aides to Unit 57 because it did not result in a complete “civilianization” of that unit and did not violate the “mix rules” established in 1990. Thus, according to these arbitration awards, the City has maintained a “mix” of sworn and nonsworn Police Department personnel who perform traffic control duties. II. Discussion and analysis
The preliminary issue in this case is whether the City’s decision to contract with the Park District and MPEA to perform traffic control duties at Soldier Field was mandatorily negotiable, and whether, by failing to bargain about that decision with the Charging Party, the City violated Section 10(a)(4) and (1) of the Act. n4 If it was a mandatory subject of bargaining, the issue is whether the Charging Party waived bargaining over that decision by virtue of the parties’ collective bargaining agreement.
A. Mandatory subject
of bargaining
Parties are required to bargain collectively regarding
employees’ wages, hours and other conditions of employment -- the “mandatory”
subjects of bargaining.
The Illinois Supreme Court has established a test for determining whether any given subject is mandatorily negotiable. Pursuant to Central City Education Association, IEA/NEA v. Illinois Educational Labor Relations Board, 149 Ill. 2d 496, 599 N.E.2d 892 (1992), and City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 692 N.E.2d 295, 14 PERI P. 4005 (1998), a topic is a mandatory subject of bargaining if it concerns wages, hours and terms and conditions of employment and: 1) is either not a matter of inherent managerial authority; or 2) is a matter of inherent managerial authority, but the Board determines that the benefits of bargaining outweigh the burdens bargaining imposes on the employer’s authority.
The
City’s decision to sign the intergovernmental agreements effectively
subcontracted bargaining unit work. In City of
The City’s decision in this instance satisfied all three of the Westinghouse factors. First, the decision to subcontract a portion of the traffic control duties involved a departure from previously established operating practices because, prior to 2003, the City had always retained full responsibility for the traffic control work at Soldier Field and had always assigned, transferred and mixed that work among City patrol officers and traffic control aides. By signing the intergovernmental agreements with the Park District and MPEA, the City has removed a certain portion of bargaining unit work -- namely, those assignments filled by officers through the district draw -- and given it to non-City employees employed by separate and distinct governmental entities. The decision to subcontract did not involve a “pool” or “mix” of traffic control work among solely City employees, as was the City’s long-standing practice; rather, the City divested itself of control over a portion of the Soldier Field work, thereby diminishing the potential traffic work available to bargaining unit members. We therefore find that it represented a departure from the City’s past practice.
We also find, as did the Administrative Law Judge, that the City’s decision to subcontract the Soldier Field traffic control work satisfied the remaining two prongs of Westinghouse. Despite the fact that none of the bargaining unit members were laid off or lost wages or hours after the City subcontracted the work, the City’s decision deprived certain FOP-represented officers of the opportunity to work traffic control at Soldier Field events. The record demonstrates that, whereas in 2001 there were 517 assignments filled by officers through multiple district draws, in 2003 there were only 49 assignments filled through one district draw. n5 The bargaining unit members suffered an impairment of reasonably anticipated work opportunities, because as the potential for performing the traffic control work diminished, so did the unit members’ anticipation of working those traffic control assignments. As a result, we affirm the Administrative Law Judge’s determination that the City’s decision to subcontract bargaining unit work satisfied the first prong of the Central City/Belvidere test. As the City did not maintain that the decision involved a matter of inherent managerial authority, and did not file exceptions to the Administrative Law Judge’s findings that, under the third step of the test, the City’s decision is amenable to bargaining, we conclude that the decision was mandatorily negotiable.
B. Waiver
The City maintains that the parties’ expired contract contains two provisions, namely Article 23 and the management rights clause, as well as arbitration awards interpreting those provisions, that demonstrate the Union’s waiver of bargaining over the City’s decision to subcontract traffic control work to external agencies. The City relies specifically on Article 23, which provides that nothing in the contract will prohibit the City from hiring or assigning any non-bargaining unit personnel to perform unit duties. n6 In the City’s view, it was permitted, pursuant to Article 23, to assign the Soldier Field traffic control work to the MPEA and Park District employees.
We disagree. Article 23, when coupled with the long history
of arbitration awards interpreting that provision, simply does not convey an
explicit waiver of the FOP’s right to bargain over the subcontracting of
bargaining unit work. For the past 15 years, arbitrators have interpreted the
language in Article 23 to mean that the City can take the traffic control work
and assign it to traffic control aides, as long as a “mix” of police officers
and traffic control aides is maintained at all times. Neither the provision
itself nor the arbitration awards contemplate the subcontracting of this work
to external, non-City agencies and non-City employees. Article 23 specifically
speaks to the City’s right to assign unit work -- here, the Soldier Field
traffic control work -- to non-bargaining unit personnel. The subcontracting of
bargaining unit work, of work performed by bargaining unit employees to
non-employees, is a fundamentally different action, and a significant
departure, from what the City has previously done -- namely, assign it to a mix
of City sworn and non-sworn Police Department employees. It is a step that we
do not believe was reasonably contemplated by Article 23 or the interest
arbitrators who considered the meaning of that provision. We therefore find
that the Administrative Law Judge correctly found that the contract’s
provisions do not represent a clear, unequivocal waiver of the
Furthermore, the instant case is distinguishable from those cited
by the City in its brief and at oral argument. The City relies heavily on City
of
The same is not true in the instant case. Article 23
concerns the transfer of bargaining unit work to other City employees; it does
not contain any express language regarding the subcontracting of that work to
non-City employees, and the arbitration awards interpreting that provision do
not find any such right. Simply put, there is no explicit contractual language
in the instant case that is similar to that found to demonstrate waiver in the
cases relied upon by the City. Parties may certainly waive their right to
bargain collectively regarding a mandatory subject of bargaining through the
use of zipper clauses, management right clauses and other contractual
provisions. However, it is the City’s burden to establish that the
IT IS HEREBY ORDERED THAT the Respondent, its officers and agents, shall:
1. Cease and desist from:
a) Enforcing or giving effect to the ordinance of September 5, 2003, and the intergovernmental agreements entered into pursuant to that ordinance, whereby it decided to subcontract to the Chicago Park District and Metropolitan Pier and Exposition Authority traffic control duties at Soldier Field, which were previously performed by sworn police officers represented by the Fraternal Order of Police, Lodge 7.
b) Unilaterally changing terms and conditions of employment, in particular the performance of traffic control duties at Soldier Field that were performed by sworn police officers, during the pendency of interest arbitration proceedings with the Fraternal Order of Police, Lodge 7.
c) Failing and refusing to bargain in good faith with the Fraternal Order of Police, Lodge 7, regarding the decision to subcontract to the Chicago Park District and Metropolitan Pier and Exposition Authority traffic control duties at Soldier Field, which were previously performed by sworn police officers represented by the Fraternal Order of Police, Lodge 7.
d) In any like or related manner, interfering with, restraining or coercing its employees in the exercise of the rights guaranteed in the Act.
2. Take the following affirmative action designed to effectuate the policies of the Act:
a) Rescind its ordinance of
b) Make whole any employees who have been adversely affected by the subcontracting of traffic control work at Soldier Field events.
c) Post at all places where notices to employees are ordinarily posted, copies of the notice attached hereto and marked “addendum.” Copies of this Notice shall be posted, after being duly signed by the Respondent, in conspicuous places and shall be maintained for a period of 60 consecutive days. Reasonable steps shall be taken to ensure that these Notices are not altered, defaced or covered by any other material.
d) Notify the Board in writing, within 20 days from the date of this decision, of what steps the Respondent has taken to comply herewith.
Member Sadlowski,
dissenting:
In my view, the City did not unlawfully subcontract bargaining unit work when it signed the intergovernmental agreements with the Chicago Park District and Metropolitan Pier and Exposition Authority. I believe there is a distinct difference between the decision the City made with these fellow governmental agencies and a public employer’s decision to truly subcontract bargaining unit work to a separate, private company. The City retained the right, pursuant to Article 23 of the collective bargaining agreement, to assign this work to non-unit employees, such as those of the Park District or MPEA. I therefore do not find a violation of Section 10(a)(4) and (1) of the Act, and respectfully disagree with the majority opinion.
Notes to Board
Decision:
n1 The Park District pays individuals anywhere between $ 16 to $ 24 per hour for this traffic control work, which represents approximately half the rate the City pays its police officers to perform traffic control duties.
n2 Appendix B and C lists various job titles or duties, such as timekeeper, officer-traffic division, auxiliary police aide and clerk.
n3 In addition to Article 23, the parties’ contract contains a management rights clause that provides, in relevant part, that the City has the right to “contract out work when essential in the exercise of police power.”
n4 Section 10(a)(4) of the Act provides that it is an unfair
labor practice for an employer or its agents to refuse to bargain collectively
in good faith with a labor organization which is the exclusive representative
of public employees in an appropriate unit. When a public employer violates
Section 10(a)(4) of the Act, there is also a
derivative violation of Section 10(a)(1) of the Act.
n5 It appears, however, that some of the decline was also due to the assignment of traffic control duties to traffic control aides employed by the Police Department.
n6 Article 4 of the parties’
agreement, entitled “Management Rights,” allows the City to “contract out work when
essential in the exercise of police power,” and the City asserts that this
clause demonstrates the
|
On
A hearing was conducted on December 9 and 10, 2003, in
I. Preliminary
Findings
1. The parties stipulated, and I find, that at all times material herein the City has been a public employer within the meaning of Section 3(o) of the Act.
2. The parties stipulated, and I find, that at all times material herein the City has been a unit of local government subject to the jurisdiction of the Board’s Local Panel pursuant to Sections 5(b) of the Act.
3. The parties stipulated, and I find, that at all times material herein the City has been a unit of local government subject to the Act pursuant to Sections 20(b) of the Act.
4. The parties stipulated, and I find, that at all times material herein FOP has been a labor organization within the meaning of Section 3(i) of the Act.
5. The parties stipulated, and I find, that at all times material herein FOP has been the exclusive bargaining representative of an historical unit composed of the City’s sworn police officers below the rank of sergeant, except for probationary police officers during the first 12 months of their probationary period (Unit).
6. The parties stipulated, and I find, that at all times
material herein the FOP and the City there have been parties to a collective
bargaining agreement governing the Unit, effective from
7. The parties stipulated, and I find, that in or about December 2002 the FOP submitted a request for mediation pursuant to Section 14(j) of the Act.
8. The parties stipulated, and I find, that on or about
II. Issues and
Contentions
The primary issue in this case is whether the City violated Section 10(a)(4) and (1) of the Act when, without bargaining with the FOP, it entered into agreements with other public employers for them to perform traffic control duties previously performed by the City’s police officers. The second issue is whether the City violated Section 10(a)(4) and (1) of the Act by entering into those agreements during the pendency of interest arbitration with the FOP in breach of Section 14(1) of the Act.
FOP asserts that the transfer, subcontracting or reassignment of FOP bargaining unit work outside of the unit is a mandatory subject of bargaining. It further asserts that the City has entered into agreements with other employers to perform traffic control duties at the City’s Soldier Field that were previously performed by FOP represented police officers. In entering into these agreements without bargaining with the FOP over the diminution of bargaining unit work, the FOP asserts that the City has breached its duty to bargain in violation of Section 10(a)(4) and (1) of the Act. The City is alleged to have also violated Section 10(a)(4) and (1) of the Act because it entered into the agreements during the pendency of the parties’ interest arbitration in contravention of Section 14(1) of the Act. The FOP contends that it has not waived its right to bargain over the transfer, reassignment or subcontracting of bargaining unit work to other employers.
The FOP separately maintains that the City has violated Section 10(a)(4) and (1) of the Act by unilaterally changing the past practice of police officers working outside of Soldier Field. The FOP asserts that those officers can no longer use rest room or concession facilities inside Soldier Field or park their cars near their assigned posts as they had previously been allowed to do prior to September 2003. n2
The City contends that it has not breached its statutory duty to bargain. The City asserts that by specific provisions of the Agreement and arbitration decisions interpreting those provisions, the City has retained full discretion to unilaterally determine whether traffic control duties performed by FOP represented police officers will continue to be performed by them or by individuals not members of the Unit. n3 As a consequence of this bargaining history, the City argues, its police officers could not have had any reasonable anticipation that they would continue perform traffic control duties at Soldier Field. Thus, the City had no duty to bargain with the FOP over having those duties performed by individuals not part of the FOP unit. Additionally, the parties’ agreement and bargaining history demonstrates the City has already fully bargained with the FOP over the assignment of traffic control duties to non-unit personnel. In the alternative, the City asserts that the FOP has waived any right to bargain over that subject per the contractual management rights provision and/or zipper clause of the parties’ Agreement. n4
III. Findings of Fact:
The Ordinances and Intergovernmental Agreements
On September 5, 2003, the City passed an ordinance with the stated purpose of authorizing the City to enter intergovernmental agreements with the Chicago Park District (CPD) and the Metropolitan Pier and Exposition Authority (MPEA) “whereby the [CPD] and [MPEA], or both, will provide certain traffic control services ... on or near [CPD] or [MPEA] property.” To that end, Section 2 of the ordinance authorizes that the intergovernmental agreements may contain provisions under which the City
transfers and delegates its authority to provide traffic control services on [CPD or MPEA] property or on portions of the public way and other roadways within, adjacent to or near [CPD or MPEA] property to the [CPD or MPEA] with respect to locations and times specified in the agreement. ...
Section 2 of the ordinance further states that the agreement may include a provision that the City compensate the CPD or MPEA for the traffic control services they provide and a provision that the City coordinate or supervise these services. Also, Section 4 of the ordinance states that any person providing services pursuant to the relevant intergovernmental agreement “shall be considered a traffic control aide for purposes of the Municipal Code of the [City] and shall be considered to be exercising powers delegated by the [City]. ...”. Lastly, Section 5 provides that the September 5 ordinance shall control in the event that there is a conflict with any other ordinance or part of the City’s municipal code.
The City provided the FOP with a draft copy of the ordinance
on
On
The City does not exercise any control over or set
requirements for the personnel hired by the CPD or MPEA pursuant to their respective
intergovernmental agreements with the City. Pursuant to its agreement the CPD
has advertised for personnel to provide traffic control work at Soldier Field. n5 The CPD positions pay a rate of $ 16 to $ 24 per hour,
with $ 16 being almost half the rate paid by the City to its police officers
for traffic control. There are no fringe benefits offered with these CPD
positions. Unit 57 and
By its general orders the City’s police department (Department) has a Bureau of Operational Services, which includes the Patrol Division. That division includes the Special Functions Group, which includes the traffic section, airport law enforcement section, public transportation section, public housing section and special operations section. Within the Traffic Section are two sub-units of police officers known as the detail unit or Unit 57 and the Loop Traffic unit.
The purpose of Unit 57 is to provide year round traffic
control for special events at major sports venues in the City, such as Chicago
Bears, Bulls, Cubs and Sox games at their respective stadiums, or the
convention/meeting facilities at Navy Pier and
As it has in recent years, Unit 57 utilizes about 20 civilian Traffic Control Aides who perform the same traffic control duties as police officers. Traffic Control Aides though, unlike the police officers, do not have the authority to perform any law enforcement functions such as arrests, towing cars or issuing tickets for violations of City ordinances other than parking tickets. Neither do the Aides carry or have any training in weapons, though they do carry police radios. The Aides wear a dark blue uniform, like that of a City police officer, though with a different hat and badge. Aides also wear a neon orange rain slicker rather than a police officer’s blue one. The Traffic Control Aides receive police academy traffic control training at the time they are hired and with Unit 57 sworn officers view training videos or receive instruction on designated Department training days. Unit 57 officers and Traffic Control Aides have received Soldier Field evacuation/disaster training that neither CPD or MPEA personnel nor other City police personnel receive. No CPD personnel have attended Department training days or evacuation/disaster training.
About 14 Department police officers and 120 Traffic Control
Aides assigned to the Loop Traffic unit. They perform traffic control and
traffic/parking enforcement duties in the City’s Loop and North Michigan Avenue
areas as well as at certain City events, such as Taste of Chicago, that are not
the responsibility of Unit 57 personnel. Loop Traffic unit Traffic Control
Aides have the same authority, responsibilities and uniform as Unit 57 Aides.
The number of Loop Traffic Control Aides has increased in the past four years
with the addition of
There are usually a minimum of 35 to 40 events per year at
Soldier Field, including Chicago Bears and Chicago Fire games and concerts.
Prior to September of 2003, for Chicago Bear games at Soldier Field n7 there
were approximately 90 to 92 traffic footposts. Unit 57 police officers and
Traffic Control Aides along with as many police officers as were needed from
other police districts were responsible for all traffic control posts between
The duty assignment process for Chicago Bears games at Soldier Field prior to 2003 began about a week before each game when it was determined how many Unit 57 officers and Aides would be on duty the day of and available to work at that game. n8 As usually only 10 to 12 Unit 57 police officers and seven to eight traffic Aides were available, the chief of the Department’s patrol division would request a draw of personnel from other police districts to meet the full complement of personnel needed to man the Soldier Field posts (the district draw). The patrol chief would then decide which districts would provide how many officers for the district draw.
Rather than being an overtime opportunity, the district draw for a Bears game had to be from officers whose regular duty day was the day of the Bears game. Based on their seniority, police officers from the other districts could then volunteer for Bears game duty. n9 If not enough officers volunteered, then the least senior officers were assigned that duty. At times, the district draw also involved district tactical teams on duty the day of the Bears games so as not to deplete the staffing of other district police officers. In this case, the tactical team officers, customarily on duty in plainclothes, would wear a regular patrol uniform for traffic duty at Bears game. If a district tactical team was on Bear game duty, a relief tactical unit would be called in to work in the district.
Prior to 2003, on the day of a Bears game all of the
officers and traffic aides working the game attend a 45 to 60 minute roll call
at a trailer near
In 2001, there were seven Chicago Bears games at Soldier Field. For these seven games a total of 76 traffic control assignments were staffed by Unit 57 police officers, a total of 517 assignments were staffed by police officers utilizing the district draw and a total of 37 assignments were staffed by Traffic Control Aides.
In July of 2003 the first of about a dozen discussions
occurred between administrators of the City, the Department the CPD and MPEA to
plan for some Soldier Field foot posts to be ceded to the CPD and MPEA and
staffed by their own personnel. Those discussions did not address the CPD and
MPEA using off
Beginning in September 2003, after the passage of the
intergovernmental agreement ordinance and the CPD/MPEA agreements with the
City, the number of available foot posts for City police personnel at Soldier
Field Bears games was reduced by approximately 30 posts by eliminating the
posts east of
While on duty, the CPD personnel do not wear a uniform like the City police officer and Traffic Control Aide uniforms. Instead they wear regular clothing along with a standard reflective CPD initialed safety vest and a green jacket or yellow rain coat not worn by City Department personnel. The CPD personnel are also given radios that provide direct communication with the Department. In 2003, CPD traffic personnel worked approximately 3559 hours at 13 Soldier Field events, including Bears games, with as many as 55 and as few as 4 CPD employees working each event for an average of 33 CPD employees.
With the 2003 elimination of the 30 foot posts previously staffed by City police personnel, no officers or Aides were transferred from Unit 57 and Unit 57 personnel still work at Soldier Field events. However, since 2003 and the elimination of the 30 posts there has been only one district draw of City police officers for Soldier Field Bears games. This reduction in the number of draws is due in part to Loop Traffic unit Traffic Control Aides starting in 2003 to work Soldier Field posts both north and south of Roosevelt Road rather than, as in prior years, only areas north of Roosevelt Road. Since 2003, the tactical and non-tactical district officers who might have worked Bears games as part of a district draw have remained on duty in their respective districts.
In 2003 there were six Chicago Bears games at Soldier Field. For all six games a total of 75 traffic control assignments were made using Unit 57 police officers, a total of 49 assignments were made to police officers utilizing the district draw and a total of 333 assignments were made to Traffic Control Aides. For the last 4 Bears games of the six game 2003 schedule an average of 48 CPD employees per game were used to perform traffic control at Soldier Field. Non-Bears Game Events
Besides Soldier Field, prior to 2003 City police personnel performed traffic control duties at the United Center for Blackhawk and Bulls’ games, Wrigley Field for Cubs games, U.S. Cellular Park for White Sox games, McCormick Place and occasionally Navy Pier. Sometimes seven or eight opportunities to work traffic control occurred each week that would necessitate a district draw to supplement Unit 57 personnel. A draw would sometimes utilize district tactical teams. For all non-Chicago Bears games in 2001 utilizing Department personnel for traffic control a total of 2117 traffic control assignments were made using Unit 57 police officers, a total of 6080 assignments were made to police officers utilizing the district draw and a total of 1142 assignments were made to Traffic Control Aides.
In 2003 Unit 57 personnel provided traffic control for non-Bears
game events at Soldier Field as well as games at
During the period 1981 through 1995, the City and FOP negotiated five collective bargaining agreements covering the Unit. In negotiating these agreements the City never proposed that it retain the right to transfer or delegate traffic control work performed by its police officers to the CPD, MPEA or any other governmental entity. At an interest arbitration for a successor to the 1984-1985 agreement the City proposed language stating that nothing in the parties’ agreement would prohibit it from hiring or assigning duties to non-bargaining unit City personnel as long as no unit officer was laid off as the result of that assignment. That issue was resolved during the arbitration proceeding. In the course of that proceeding the City never proposed that it be allowed to transfer or delegate unit work to the CPD or the MPEA or outside of the Department generally. Neither did the City make such a proposal to the FOP or raise that issue for discussion during negotiations for the parties’ 1995-1999 or 1999-2003 agreements.
The parties are currently engaged in negotiations for a successor agreement to the 1999-2003 Agreement, which, once ratified, will be enacted as a City ordinance superceding any conflicting City ordinance or rule. The parties’ have not yet reached any tentative agreements on any proposals either in their bargaining subcommittees or their full bargaining committee. Until a successor agreement is reached the terms of the parties’ 1999-2003 agreement remains in full force and effect.
On or about
Section 20.14 was discussed by the parties at meetings of the heads of parties’ negotiating subcommittees or the core group. n12 During an extended discussion on the proposal the City suggested that police officers be paid for off-duty details at a rate between their usual regular duty pay and their time and a half overtime rate. At no time has the City told FOP that it was refusing to or would not bargain over FOP’s Section 20.14 proposal nor has the City implemented any part of the FOP’s Section 20.14 proposal.
Article 4 of the parties’ 1999-2003 Agreement, titled Management Rights, states the following in relevant part:
The Employer has and will continue to retain the right to operate and manage its affairs in each and every respect. The rights reserved to the sole discretion of the Employer shall include, but not be limited to, rights:
A. to determine the organization and operations of the Department of Police;
...
C. to set standards for the services to be offered to the public;
D. to direct the officers of the Department of Police, including the right to assign work and overtime;
E. to ... assign and schedule officers;
...
G. to contract out work when essential in the exercise of police power;
...
J. to add, delete or alter methods of operation, equipment or facilities;
K. to determine the locations, methods, means, and personnel by which the operations are to be conducted, including the right to determine whether goods or services are to be made, provided or purchased;
...
N. to add, delete or alter policies, procedures, rules and regulations.
Article 23, Section 12, of the parties’ 1999-2003 Agreement, titled Reassignment of Duties, states the following in relevant part:
Any other provision of this Agreement to the contrary notwithstanding, nothing in this Agreement shall be deemed to prohibit the Employer from hiring or assigning any non-bargaining unit personnel to perform any unit duties as described in Appendix B and/or C provided that no officer covered by this Agreement shall be laid off either as a result thereof or if his non-bargaining unit replacement, if any, has not been laid off.
Any officer who is to be displaced by a non-bargaining unit person shall be given 60 days’ prior notice of displacement. The Employer shall designate the positions and duties to which displaced officers shall be assigned. Displaced officers may be assigned to other job duties within the same unit without regard to Section 23.8 and 23.9. If the Employer decides to assign displaced officers to different units, such displaced officers shall be permitted to bid for such assignments which the Employer decides to fill with such officers on the basis of seniority and qualifications in accordance with Section 23.8. If officers other than those displaced are permitted by the Employer to bid for such assignments, then all the displaced officers shall be deemed to be more senior than all of the non-displaced bidders for purposes of said bid.
An officer who has been given a limited duty assignment pursuant to Section 18.3 shall not be displaced from limited duty under Section 23.12 for the duration of his eligibility for limited duty.
Appendix B of the parties’ 1999-2003 Agreement has a list of the following 21 job titles or duties: Timekeeper, Citation Clerk, Clerk (Office Clerical), Review Officer, Crossing Guard Supervisor, Radio Equipment Officer, Assembly Room Officer, Summary Case Management Officer-Traffic Division, Remote Terminal Officer, Motor Maintenance Supervisor, Lockup Keeper, Activity Officer, Assistant Desk Officer, Motor Maintenance-Service Writers, Communications and Operations Section, Auto Pound Supervisor, Police Officers working in the Crime Lab, Extradition Warrant Officers, Evidence and Recovered Property Officers, Abandoned Vehicle Officer and Police Officers working in Youth Division Administration --Missing Persons Section performing Inquiry Aide/Clerical duty.
Appendix C of the 1999-2003 Agreement titled Auxiliary Police Aides, n 13 states that
The following are duties which may be performed by Auxiliary Police Aides: ...
F. Aid in traffic direction and control ...
G. Assist in: 1. Crowd control at parades, athletic events and other public gatherings where potential for violence is minimal ... .”
Article 23, Section 11, of the parties’ 1999-2003 Agreement, titled Details, states the following in relevant part:
If the Employer decides to assign an officer to a detail outside the area, district, or unit, to a sports event parade, festival or labor dispute; or to another event detail which constitutes a tour of duty, the Employer shall announce the detail at a roll call preceding the event, which roll call is for the same roll call on the same watch in the same unit from which officers are to be assigned to the detail.
The remainder of Article 23, Section 11, addresses details in circumstances other than those at issue herein as well as the process to implement a detail including seniority rights.
Article 32 of the parties’ 1999-2003 Agreement, titled Complete Agreement, states the following in full:
The parties acknowledge that during the negotiations which preceded this Agreement each had the unlimited right and opportunity to make demands and proposals with respect to any subject or matter not removed by law from the area of collective bargaining. The understandings and agreements arrived at by the parties after the exercise of that right and opportunity are set forth in this Agreement. Except as may be stated in this Agreement, each party voluntarily and unqualifiedly waives the right, and each agrees that the other shall not be obligated to bargain collectively with respect to any subject or matter referred to, or covered in this Agreement or with respect to any subject or matter not specifically referred to or covered in this Agreement, even though such subjects or matters may not have been within the knowledge or contemplation of either or both of the parties at the time they negotiated and signed this Agreement.
A number of arbitration decisions have addressed Article 23
of the parties’ Agreement or its predecessors beginning with the 1990 award
issued by arbitrator George Roumell. The issue resolved in that 1990 award
concerned language substantially identical to the Article 23 Reassignment of
Duties and the Article 4 Management Rights provisions of the 1999-2003
Agreement cited above. The City argued that under Article 4 it had a right to
assign both FOP represented police officers and
non-bargaining unit Traffic Control Aides to perform traffic control duties in
the City’s
In 1993 Arbitrator Peter Meyers relied on the rationale of
Arbitrator Roumell’s award in finding that Article 23 and Appendix B did not
prohibit the City from using civilian employee Crossing Guards to perform the
same traffic control duties at O’Hare and
In his 1994 arbitration award, Arbitrator Edwin Benn addressed the issue of whether the City was entitled to assign Traffic Control Aides to Unit 57 in 1993 and 1994. Prior to 1993 the Detail Unit consisted only of sworn FOP represented police officers and the FOP argued therefore that the mixed job analysis of Roumell’s award was not applicable. In contrast, the City argued that the mixed job analysis did apply as the mix concept referred to job function or duties rather than organizational unit as the FOP claimed. Arbitrator Benn agreed with the City finding that the parties bargaining history supported the City’s claim and that prior awards addressing the mix issue referred to jobs, functions, work or duties as opposed to organizational unit. Benn then concluded that as there was a history of Aides and sworn officers performing the job/function/work/duty of traffic control, the mix analysis developed by Arbitrator Roumell applied. Because the City’s use of Aides in the Detail Unit to perform traffic control duty did not completely civilianize that duty or result in a layoff of sworn personnel, Arbitrator Benn found that the City’s action did not violate the mix rules established by Arbitrator Roumell.
Three other arbitration awards have applied the mixed function analysis originally developed by Arbitrator Roumell to functions other than traffic control each finding that the City had a right to utilize its civilian employees instead of sworn police officers to perform some of the job functions at issue. Two other awards have addressed the issues of whether a position was clerical in nature under Appendix B of the parties’ agreement and the City’s right to utilize civilians in that position.
IV. Discussion and
Analysis
Section 10(a)(4) and (1) of the Act that provides that it is an unfair labor practice for a public employer or its agents:
(4) to refuse to bargain collectively in good faith with a labor organization which is the exclusive representative of public employees in an appropriate unit, including, but not limited to, the discussing of grievances with the exclusive representative;
(1) to interfere with, restrain or coerce public employees in the exercise of the rights guaranteed in this Act or to dominate or interfere with the formation, existence or administration of any labor organization or contribute financial or other support to it; provided, an employer shall not be prohibited from permitting employees to confer with him during working hours without loss of time or pay;
Additionally, the duty to bargain collectively is defined, in relevant part, by Section 7 of the Act as
the performance of the mutual obligation of the public employer or his designated representative and the representative of the public employees to meet at reasonable times, including meetings in advance of the budget-making process, and to negotiate in good faith with respect to wages, hours, and other conditions of employment, not excluded by Section 4 of this Act, or the negotiation of an agreement, or any question arising thereunder and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession.
Section 4 of the Act states in relevant part that:
Employers shall not be required to bargain over matters of inherent managerial policy, which shall include such areas of discretion or policy as the functions of the employer, standards of services, its overall budget, the organizational structure and selection of new employees, examination techniques and direction of employees. Employers, however, shall be required to bargain collectively with regard to policy matters directly affecting wages, hours and terms and conditions of employment as well as the impact thereon upon request by employee representatives.
Section 7 of the Act requires parties to bargain with
respect employees’ wages, hours and other conditions of employment i.e. “mandatory”
subjects of bargaining. City of
The primary issue in this case is whether the City violated Section 10(a)(4) and (1) of the Act when, without bargaining with the FOP, it entered into agreements with the CPD and MPEA for their personnel to perform traffic control duties at Soldier Field events, principally Chicago Bears games, previously performed by City police officers. The answer to this question initially turns on whether the City’s action concerns a mandatory subject of bargaining. A given subject is a mandatory subject of bargaining if it concerns wages, hours and terms and conditions of employment and: 1) is either not a matter of inherent managerial authority; or 2) is a matter of inherent managerial authority, but the benefits of bargaining outweigh the burdens bargaining imposes on the employer’s authority. Central City Education Association, IEA/NEA v. Illinois Educational Labor Relations Board, 149 Ill.2d 496, 599 N.E.2d 892 (1992); City of Belvidere v. Illinois State Labor Relations Board, 181 Ill.2d 191, 692 N.E.2d 295, 14 PERI P. 4005 (1998); Illinois Department of Central Management Services (Department of Corrections), 17 PERI P. 2046 (IL SLRB 2001).
The City’s agreements with the CPD and MPEA essentially
allows employees of these entities to perform some traffic control services at
Soldier Field events that were previously performed by City sworn police
officers and Traffic Control Aides. In ceding its responsibility for and
control over providing those services to another employer or other employers,
the City’s action is best characterized as the subcontracting of services or work
previously performed by City employees. n14 As such, this case is similar to
the situation in City of Belvidere v. Illinois State Labor Relations Board, 181
Ill.2d 191, 692 N.E.2d 295 14 PERI P. 4005 (1998) where the issue was whether
the City of Belvidere’s decision to subcontract paramedic services was a
mandatory subject of bargaining. In making that determination the
when the subcontracting (1) involved a
departure from previously established operating practices, (2) effected a
change in conditions of employment, or (3) resulted in a significant impairment
of job tenure, employment security, or reasonably anticipated work
opportunities for those in the bargaining unit. City of
Given the disjunctive construction of this language, only one of these three circumstances need exist in order to find that a given subject concerns wages, hours and terms and conditions of employment.
That the City’s decision in the late summer/early fall of 2003 to subcontract a portion of the traffic control duties for Soldier Field events to the CPD and MPEA “involved a departure from previously established operating practices” is clear. Prior to that time CPD and MPEA personnel did not provide traffic control services at Soldier Field events, in particular Chicago Bears games. The City argues that there has been no departure in established operating practices as the work of providing traffic control at Soldier Field has never been the exclusive bargaining unit work of FOP represented officers. Instead, prior to 2003, and in accord with arbitration awards establishing the City’s right to do so, non-FOP represented Traffic Control Aides have been performing traffic control duties along with FOP represented City police officers at Soldier Field events. The City thus concludes that having employees of the CPD or MPEA performing traffic control duties at Soldier Field instead of the City’s FOP represented officers is no different than having that work performed by non-FOP bargaining Traffic Control Aides instead of those officers. In either case, the City concludes, FOP represented officers would not be exclusively performing work of traffic control at Soldier Field events.
The City’s argument that there has not been a departure from previously established operating procedures is unpersuasive. Prior to 2003 the City retained full responsibility for and full control over traffic control work at Soldier Field events and, pursuant to provisions of the parties’ collective agreement and arbitration awards interpreting those provisions, assigned, allocated, transferred or mixed that work among City employees, some represented by the FOP and others not. But, in 2003 when the City ceded its responsibility and control over some of that traffic control work to the CPD and MPEA, the City took that work away from every City employee including FOP bargaining unit members. In short, the City’s 2003 decision to subcontract traffic control work to the CPD and MPEA did not involve a mix or division of the existing pool of traffic control work among City employees as was its practice prior to 2003. Instead, the City divested itself of control or responsibility for some traffic control work at Soldier Field, thereby shrinking the available pool of potential traffic control work available to City employees including FOP represented police officers.
While the City had a right under prior arbitration awards to mix or divide traffic control work among City employees, none of those awards discussed the City’s right to take any work out of the mix by subcontracting or ceding that work to other employers or non-City employees. Nor do any of those awards allude to any discussion in the parties’ bargaining history as to the City’s right to do so. Instead, there is no record evidence that prior to 2003 other employers or non-City employees provided traffic control services at Soldier Field events in lieu of City employees n15 or that during the parties’ negotiations for any collective bargaining agreement the City requested that it be allowed to transfer or delegate any Department function performed Unit members to the CPD, the MPEA or any other entity. For these reasons, contrary to the City’s claim, I find that the City changed its previously established operating procedures in 2003 as to Soldier Field traffic control duties.
As for the second Westinghouse circumstance, the City asserts that the decision to subcontract traffic control duties to the CPD and MPEA did not result in any material, substantial or significant change with respect to any terms and conditions of employment of Unit members. The City is factually correct in that as a result of the City’s decision none of those members were laid off or lost any wages or hours. Even after CPD and MPEA personnel began to work Soldier Field events in 2003 Unit 57 police officers continued to be assigned at Soldier Field traffic with the same frequency as before. Moreover, an assignment to Soldier Field traffic duty was never an overtime opportunity and police officers who in 2003 could have been assigned to Soldier Field traffic control duty in place of CPD or MPEA personnel as part of a district draw remained on duty in their respective districts. Nonetheless, I find that there has been a material change in the terms and conditions of employment of those district officers.
As stated by the Court in City of
There is no
indication that the contract with Lifeline resulted in the elimination of
firefighter positions or in a reduction in the firefighter’s hours or wages. We
acknowledge that a change in the condition of employment is not limited to an
elimination of positions or alteration of wages or hours, but may also
encompass the loss of potential work or promotional opportunities.
In this case it is undisputed that FOP officers were qualified to perform and prior to 2003 had performed traffic control duties at Soldier Field events as part of a district draw. n16 It is also self-evident that the City’s subcontracting decision in 2003 deprived FOP officers of the potential opportunity to have worked traffic control at Soldier Field events as part of a district draw. Thus, while there were 517 Soldier Field Bear game assignments as part of a district draw for every Bears game in 2001, there were only 49 such assignments in 2003 when the City only used a district draw once for a Bears game. Some of the reduction in district draw opportunities from 2001 to 2003 is no doubt the result of one less fewer Bears game in 2003 and an increase in the use of Traffic Control Aides. However, I find that at least part of the reduction is due to the use of an average of 48 CPD employees per each Bears game in 2003 to perform traffic control at Soldier Field rather than City police officers from a district draw. I therefore find that this change represents a loss of potential Unit work. While it is true that the City could have theoretically used more Traffic Control Aides rather than a district draw in 2003, the City’s past practice was to use a district draw as it always had in previous years. That there is no evidence that the City ever utilized or planned to utilize Traffic Control Aides to eliminate the district draw of FOP officers for Soldier Field events only serves to underscore this conclusion.
The last factor recognized in City of
Having found that the City’s subcontracting decision
satisfies the first step of the Central City analysis I now consider the second
step of that analysis. The City’s post-hearing brief does not offer any
argument that its decision concerns a matter of inherent managerial authority
under Section 4 of the Act. I therefore consider any such argument waived. It
could be argued that the City’s decision concerns its inherent managerial right
within the meaning of Section 4 to determine the standard of police services in
that police officers not being used for traffic control at Soldier Field events
are available to provide other more critical police functions in their
respective police districts. Assuming this is true, there is simply no record
evidence to prove that, as required by the third part of the Central City
analysis, bargaining over the City’s subcontracting decision would impose any
burden on the City’s exercise of its inherent managerial authority that
outweighs the benefit of bargaining over that decision. For example, there is
no evidence of an immediate crisis or problem concerning the City providing all
traffic control at Soldier Field events with its own personnel or any other
compelling reason which might allow the City to unilaterally decide that the
CPD or MPEA should provide traffic control. Chicago Park
District, 18 PERI P. 3036 (ILRB-LP 2002). Moreover, the fact that the parties
have already bargained over the use of
The City raises three arguments in support of its claim that the FOP has waived its right to bargain over the City’s subcontracting decision. The first argument is that the FOP has already negotiated with the City over having civilians take over traffic control duties by virtue of Article 23, Section 12 of the parties’ collective bargaining agreement as interpreted and applied by subsequent arbitration awards. This waiver argument has no merit. As already noted, Article 23, Section 13, and the arbitration awards interpreting that provision gives the City the right to change the mix of FOP officers and civilian City employees to perform traffic control work. None of those awards or the parties’ bargaining history addressed the City’s right to subcontract or divest itself of traffic control work to other employers or non-City employees i.e. to take any work out of the mix. Instead, the uncontradicted record testimony is that the parties have never negotiated, addressed or discussed the City’s right to transfer or delegate any function performed by FOP unit members to the CPD, the MPEA, any another governmental agency or any entity outside the Department generally.
The City next contends that FOP waived its right to bargain
over the City’s subcontracting decision by virtue of the management rights
clause of the parties’ collective bargaining Agreement. For such a waiver to
exist it must be clear, unequivocal and unmistakable. American
Federation of State, County and Municipal Employee v.
As the basis for its alleged management rights waiver the City relies on the following portion of Article 4 of the parties’ collective bargaining agreement that states in relevant part:
The Employer has and will continue to retain the right to operate and manage its affairs in each and every respect. The rights reserved to the sole discretion of the Employer shall include, but not be limited to, rights:
B. to determine the organization and operations of the Department of Police.
...
G. to set standards for the services to be offered to the public;
H. to direct the officers of the Department of Police, including the right to assign work and overtime;
...
H. to contract out work when essential in the exercise of police power;
...
L. to establish, modify, combine or abolish job positions and classifications;
M. to add, delete or alter methods of operation, equipment or facilities;
N. to determine the locations, methods, means, and personnel by which the operations are to be conducted, including the right to determine whether goods or services are to be made, provided or purchased;
...
N. to add, delete or alter policies, procedures, rules and regulations.
Unlike the decisions in City of Chicago (Department of Health), 10 PERI P. 3031 (IL LLRB 1994) and American Federation of State County and Municipal Employees v. Illinois State Labor Relations Board, 274 Ill.App.3d 327, 653 N.E.2d 1357, 11 PERI P. 4014 (1995) the City relies on, there is nothing in Article 4 of the parties’ agreement that expressly allows or can reasonably be interpreted as allowing the City to subcontract or cede traffic control work to the CPD or MPEA. n17 The only express language in this provision making any express or implied reference to the City being able to subcontract work is its right “to contract out work when essential in the exercise of police power”. As there is no record evidence that the City’s action herein was “essential” to the exercise of its police power, this particular provision has no operative effect in this case to support a waiver of the FOP’s bargaining rights a waiver. n18 In light of these considerations, there is no management rights waiver in this case.
The City raises a third waiver argument based on Article 32 of the parties’ 1999-2003 agreement, titled Complete Agreement, that states in full:
The parties acknowledge that during the negotiations which preceded this Agreement each had the unlimited right and opportunity to make demands and proposals with respect to any subject or matter not removed by law from the area of collective bargaining. The understandings and agreements arrived at by the parties after the exercise of that right and opportunity are set forth in this Agreement. Except as may be stated in this Agreement, each party voluntarily and unqualifiedly waives the right, and each agrees that the other shall not be obligated to bargain collectively with respect to any subject or matter referred to, or covered in this Agreement or with respect to any subject or matter not specifically referred to or covered in this Agreement, even though such subjects or matters may not have been within the knowledge or contemplation of either or both of the parties at the time they negotiated and signed this Agreement, negotiated or signed.
This type of language is usually referred to as a zipper
clause and its effect as a waiver was discussed by the State Panel of the
Illinois Labor Relations Board in
Zipper clauses, by their very nature, serve to protect an employer against mid-term bargaining over matters already bargained for. Zipper clauses essentially act as a curb on the union’s right to demand bargaining, during the life of a collective bargaining agreement, about the terms and conditions of employment which are contained in that contract. Suffolk Child Development Center, Inc., 277 NLRB 1345 (1985). The presence of a zipper clause in a collective-bargaining agreement, however, has not been interpreted as a grant to an employer to change, unilaterally, existing terms and conditions of employment. Id. Stated another way, a zipper clause serves as a “shield” which a party may use against the other party’s request for midterm bargaining, but not as a “sword” to accomplish unilateral changes in terms and conditions of employment. CBS Corporation, 326 NLRB 861, 872 (1998). Essentially, where an employer relies on a zipper clause to establish its freedom to unilaterally change, or institute new, terms and conditions of employment not contained in the contract, there must be evidence that the particular matter at issue was fully discussed or consciously explored during bargaining, and that the union knowingly yielded and unmistakably waived its interest in that matter. Metropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983); Johnson-Bateman Co., 295 NLRB 180 (1989); Rockwell International Corp., 260 NLRB 1346 (1982); see also, Gannett Rochester Newspapers, 305 NLRB 906 (1991); Cypress Lawn Cemetery Assn., 300 NLRB 609 (1990). By their very terms, then, zipper clauses have an extremely limited purpose in that they serve only to prevent changes during the contract period in subjects which are not covered by the collective bargaining agreement, including those not within the knowledge or contemplation of the parties. CBS Corporation, 326 NLRB 861, 872 (1998), citing, GTE Automatic Electric, 261 NLRB 1491 (1982).
The State Panel then went on to observe that a generally worded zipper clause, such as the one present in this case, does not serve as a waiver of statutory bargaining rights unless other language in the collective bargaining agreement or evidence indicates a party’s intent to waive its right to bargain over the particular issue in question. See also City of Chicago, 18 PERI P. 3025 (IL LRB-LP 2002); City of Chicago, 4 PERI P. 3025 (IL LLRB 1988), aff’d, Water Pipe Extension, Bureau of Engineering, Laborers Local 1092 v. Illinois Local Labor Relations Board, 6 PERI P. 4008 (1990).
As previously explained in the prior discussion regarding the meaning of Article 4 and Article 23, Section 12, of the parties’ bargaining agreement, there is no language in that agreement that refers to or covers the City’s right to subcontract Unit work to another public employer such as the CPD or MPEA, absent a showing that the decision was essential to the exercise of its police power. Moreover, there is no evidence that the City’s right to engage in such subcontracting was fully discussed or consciously explored during bargaining and that the FOP knowingly yielded and unmistakably waived its interest in bargaining over such decisions. Rather, the uncontradicted evidence is that such subcontracting was never discussed. Accordingly, the zipper clause in this case does not serve as a waiver of the FOP’s right to bargain over the City’s subcontracting decision. This conclusion does not conflict with the decisions in City of Chicago, 18 PERI P. 3025 (IL LRB-LP 2002) and City of Chicago, 4 PERI P. 3025 (IL LLRB 1988), aff’d, Water Pipe Extension, Bureau of Engineering Laborers Local 1092 v. Illinois Local Labor Relations Board, 6 PERI P. 4008 (1990) relied on by the City. While a zipper clause was held to serve as a waiver in those cases, the waiver was based on the existence of a generally worded zipper clause and other contract language regarding the specific matter at issue. Thus, in City of Chicago, 18 PERI P. 3025 (IL LRB-LP 2002), along with the zipper clause there was specific contract language regarding mandatory retirement while in the second City of Chicago case the zipper clause was read in conjunction with specific contract language regarding what records the employer would provide the union. Section 14(l)
The second issue in this case is whether the City breached Section 14(l) of the Act by entering into the agreements with the CPD and the MPEA during the pendency of interest arbitration proceedings with the FOP and in so doing violated of Section 10(a)(4) and (1) of the Act by. Section 14(l) of the Act regarding mediation and interest arbitration procedure states in full:
During the pendency of proceedings before the arbitration panel, existing wages, hours and other conditions of employment shall not be changed by action of either party without the consent of the other but a party may so consent without prejudice to his rights or position under the Act. The proceedings are deemed to be pending before the arbitration panel upon the initiation of arbitration procedures under the Act.
It has been held that unilaterally
changing wages, hours and other conditions of employment, i.e. a mandatory
subject of bargaining, during the pendency of an arbitration proceeding is
itself a violation of Section 10(a)(4) and (1) of the Act. City
of
V. Conclusions of Law
1. The City of Chicago’s decision to subcontract or cede to the Chicago Park District and/or the Metropolitan Pier and Exposition Authority traffic control duties previously performed at Soldier Field by its sworn police officers represented by the Fraternal Order of Police, Lodge 7, is a mandatory subject of bargaining.
2. The Fraternal Order of Police, Lodge 7, has not waived its right to bargain over the City of Chicago’s decision to subcontract or cede to the Chicago Park District and/or the Metropolitan Pier and Exposition Authority traffic control duties performed at Soldier Field by the City’s sworn police officers represented by the Fraternal Order of Police, Lodge 7.
3. In unilaterally deciding to subcontract or cede to the Chicago Park District and/or the Metropolitan Pier and Exposition Authority traffic control duties performed at Soldier Field by its sworn police officers represented by the Fraternal Order of Police, Lodge 7, the City of Chicago has violated Section 10(a)(4) and (1) of the Act.
4. In unilaterally deciding to subcontract or cede to the Chicago Park District and/or the Metropolitan Pier and Exposition Authority traffic control duties performed by its sworn police officers at Soldier Field and doing so during the pendency of interest arbitration proceedings with the Fraternal Order of Police, Lodge 7, the City of Chicago has breached Section 14(l) of the Act in violation of Section 10(a)(4) and (1) of the Act.
5. The Fraternal Order of Police, Lodge 7, did not consent to, or waive its right to bargain over, the City of Chicago’s decision to subcontract or cede to the Chicago Park District and/or the Metropolitan Pier and Exposition Authority traffic control duties performed by its sworn police officers at Soldier Field. VI. Recommended Order
IT IS HEREBY ORDERED that the Respondent, City of
1. Cease and desist from:
a. Enforcing or giving effect to its ordinance of September 5, 2003, and intergovernmental agreements entered into pursuant to that ordinance whereby it decided to subcontract or cede to the Chicago Park District and/or the Metropolitan Pier and Exposition Authority traffic control duties at Soldier Field previously performed by City of Chicago sworn police officers represented by the Fraternal Order of Police, Lodge 7.
b. Unilaterally changing terms and
conditions of employment, in particular the performance of traffic control
duties at Soldier Field by City of
c. Failing to bargain in good faith with the Fraternal Order of Police, Lodge 7, over the decision to subcontract or cede to the Chicago Park District and/or the Metropolitan Pier and Exposition Authority traffic control duties performed at Soldier Field by sworn police officers represented by the Fraternal Order of Police, Lodge 7.
d. In any like or related manner, interfering with, restraining or coercing its employees in the exercise of the rights guaranteed them in the Act.
2. Take the following affirmative action designed to effectuate the policies of the Act:
a. Rescind its ordinance of
b. Make whole any employees represented by the Fraternal Order of Police, Lodge 7, who have been adversely affected by the City of Chicago having subcontracted or ceded to the Chicago Park District and/or the Metropolitan Pier and Exposition Authority the responsibility for providing traffic control duties at Soldier Field previously performed by sworn police officers represented by the Fraternal Order of Police, Lodge 7.
c. Post at all places where notices to employees are ordinarily posted, copies of the notice attached hereto and marked “addendum”. Copies of this Notice shall be posted, after being duly signed by the Respondent, in conspicuous places and shall be maintained for a period of 60 consecutive days. Reasonable steps shall be taken to ensure that these notices are not altered, defaced or covered by any other material.
d. Notify the Board in writing, within 20 days from the date of this decision, of what steps the Respondent has taken to comply herewith.
VII. Exceptions
Pursuant to Section 1200.135 of the Board’s Rules, parties
may file exceptions to the Administrative Law Judge’s Recommended Decision and
Order and 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 7 days from the filing of cross-exceptions,
parties may file cross-responses to the cross-exceptions. Exceptions,
responses, cross-exceptions and cross-responses must be filed with the Board’s
General Counsel, Jacalyn J. Zimmerman,
Notes to
Administrative Law Judge’s Decision:
n1 On
n2 The complaint in this case does
not allege a violation of the Act for the City’s alleged failure to bargain
with the FOP over these changes. Board case law allows for a complaint to be
amended if (1) the amendment would conform the
pleadings to the evidence and would not unfairly prejudice any party or (2) the
additional allegations are closely related to the original allegations in the
charge or grew out of the same subject matter during the pendency of the case. Chicago Park District, 15 PERI P. 3017 (IL LLRB 1999); City of
n3 Though I raised the question of whether the allegations raised by the complaint in this case should be deferred to the parties’ grievance and arbitration procedure, neither the FOP nor the City assert that deferral is appropriate. I therefore do not unilaterally defer this matter to the parties’ grievance/arbitration procedure.
n4 It is apparent from its post-hearing brief that the City believed that the FOP would argue that 1) the City violated the Act by failing to bargain over an ordinance it enacted providing for payment to the City by other employers for services rendered by FOP represented City police officers and 2) that the City violated the Act by implementing an FOP bargaining proposal concerning paid police details. As the FOP has made no such claims, they are not addressed herein.
n5 FOP has announced to its members that they will be subject to internal union discipline if they accept employment with the CPD to work traffic control at Soldier Field.
n6 One Unit 57 police officer, John Sershen, testified that he was happy to get assigned to Unit 57 because the hours were better and the work less physically taxing than running after criminal suspects.
n7 There were no Chicago Bear games at Soldier Field in 2002 as it was under reconstruction.
n8 On any given Bears game day some Unit 57 officers may have been assigned to provide traffic control at an event being held at another City sports venue.
n9 Police officer Thomas Scott testified that he would volunteer for Soldier Field Bears game duty because it was a break or change of atmosphere from his usual duty assignment. Scott also testified that seven to eight times a week there was an opportunity to volunteer for traffic control details at Soldier Field or other City sports venues.
n10 In 2003 the City also began using employees of its Department of Streets and Sanitation to perform work at Soldier Field events that was not performed prior to 2003. Prior to 2003, these employees were utilized to place traffic cones before and after Soldier Field events and assist in directing traffic.
n11 The proposal was based on a
similar plan already in existence in the City of
n12 Tim Fallon, a City police officer and current FOP grievance chairman, was involved in developing the Section 20.14 proposal. He testified that if the proposal were implemented some 70 police officers who previously worked Soldier Field Bears game as part of the district draw would remain on City-paid duty providing police services in their districts while another complement of officers would work traffic control at the game at a pay rate greater than their straight time but less than the time and a half overtime rate. Fallon also admitted that under Section 20.14 the City could still assign Traffic Control Aides to traffic control duty at Soldier Field.
Fallon testified that the Section 20.14 proposal would help
the City financially because it would allow more officers to be on the street
in the district and on detail duty at no cost to the City. He also testified
that the City ordinance passed on
n13 There is no record evidence that the City’s Auxiliary Police Aides are the same as its Traffic Control Aides.
n14 I differentiate subcontracting
from a situation best characterized as the transfer or reassignment of duties where
an employer and its employees still retain responsibility for and control over
the duties transferred or reassigned. See
n15 In this respect, this case does not present the same
factual situation as in City of Belvidere v. Illinois State Labor Relations
Board, 181 Ill.2d 191, 692 N.E.2d 295 14 PERI P. 4005 (1998). In
n16 In this regard this case is not
similar to City of
n17 In City of Chicago (Department of Health), 10 PERI P. 3031 (IL LLRB 1994), the language at issue specifically gave the employer the right to “contract out work for reasons of efficiency or economy”. In American Federation of State County and Municipal Employees v. Illinois State Labor Relations Board, 274 Ill.App.3d 327, 653 N.E.2d 1357, 11 PERI P. 4014 (1995), the employer had a right to lay off employees predicated on specific contractual language allowing the employer “to relieve employees from duty because of lack of work or other legitimate reasons”.
n18 Though the FOP did not raise this argument, it would appear that the City and the FOP have in fact bargained over the City’s right to subcontract Unit work, expressly limiting that right to circumstances when it is “essential in the exercise of police power”. Thus, the City has waived its right to subcontract Unit work in any other circumstances. Finding that the City has waived its right to act unilaterally as it did in this case is even clearer when this contract language is read in conjunction with entire agreement or “zipper” clause of the Agreement discussed below.