Pursuant to Section 20(b), the Act is only applicable to units of local government employing 35 or more public employees. Section 3(n) of the Act defines "public employee." If a governmental entity does not employ 35 or more public employees as defined in the Act, the Board does not have jurisdiction over that entity. This issue often arises in the context of whether summer employees, such as lifeguards, may be counted for jurisdictional purposes. See the discussion of short-term employee status below for a more detailed discussion of this issue.

The issue concerning whether a local government satisfies the 35 employee requirement was most recently addressed by the Illinois Supreme Court in Village of Winfield v. Illinois State Labor Relations Board, 176 Ill. 2d 54, 678 N.E.2d 1041, 13 PERI ¶4012 (1997). At issue was whether the Village Library's employees could be counted as public employees for the purpose of determining whether the Board had jurisdiction over the Village. The Board and the Appellate Court for the Second District had agreed that, despite the Library Board's considerable autonomy, the Village was an "employer" of the Library employees due to the Village's statutorily granted ability to affect Library funding. However, the Illinois Supreme Court reversed the appellate court order, reasoning that, because the Library, through its Board of Trustees, possessed exclusive authority over the terms and conditions of the Library employees' employment, the Village did not qualify as a joint employer of those employees. Therefore, those employees could not be counted when calculating the number of public employees. The supreme court noted that the Illinois Local Library Act, 75 ILCS 5/1-0.1, et seq., provided for the public election of the Library Board, rather than appointment by the Village, and vested the Library Board with broad powers to control and govern the Library. The court further found that the Village's duty to levy taxes for the Library was ministerial and that the Village was not involved in hiring, firing, promoting or demoting Library employees or in establishing their wages, work hours or other conditions of employment. The supreme court concluded that, without the Library employees, the Village employed fewer than 35 employees and dismissed the petition.

Since the Act's inception, judicial employers have challenged the Act's application to their employees on separation of powers grounds. Recently, a Chief Judge argued that the Illinois Supreme Court was a joint employer of probation officers and that the Board could not constitutionally exert jurisdiction over the court. In Chief Judge of the Eighteenth Judicial Circuit, 311 Ill. App. 3d 808, 726 N.E.2d 147, 16 PERI ¶4001 (2000), appeal denied, Docket No. 89291, (May 31, 2000), the Illinois Appellate Court for the Second District held that the Board had jurisdiction over the Chief Judge as the sole employer of the probation officers. The court upheld the Board's exertion of jurisdiction over the Chief Judge, relying primarily on the Illinois Supreme Court's decision in County of Kane v. Carlson, 116 Ill. 2d 186, 507 N.E.2d 482 (1987), to find that the Chief Judge could constitutionally be made subject to the Act. The court found no reasonable distinction between this case and the facts of County of Kane, which held that a chief judge, as a public employer of probation officers, could be made subject to the Act. The court also rejected the Chief Judge's argument that the Illinois Supreme Court was a joint employer of the probation officers at issue and that therefore the Board was without jurisdiction. The court held that the Chief Judge maintained significant constitutional and statutory authority and discretion over the probation officer's conditions of employment such that he must be determined to be their sole employer for purposes of the Act. The court noted that this holding was further supported by Orenic v. Illinois State Labor Relations Board, et. al., 127 Ill. 2d 453, 537 N.E.2d 784 (1989), in which the Illinois Supreme Court held that, in reconciling the Act with fundamental constitutional principles, the supreme court should not be considered an employer.

This section of the Act identifies the factors the Board should consider when asked to determine an "appropriate unit" for the purposes of collective bargaining. A fundamental inquiry is whether the petitioned-for unit shares a "community of interest" (i.e., similar personnel policies, hiring policies, fringe benefits, common supervision, wages, hours, etc.). The Act does not mandate that a petitioned-for unit be the most appropriate unit, only that it be an appropriate unit. In other words, the fact that a more comprehensive bargaining unit could be created does not affect the Board's analysis, unless the petitioned-for unit is an artificial or arbitrary selection of employee groupings. See City of Rolling Meadows, 16 PERI ¶2022 (IL SLRB 2000); Rend Lake Conservancy District, 14 PERI ¶2051 (IL SLRB 1998); see also, Downers Grove Community High School District No. 99, 1 PERI ¶1105 (IL ELRB 1985).

Section 10(a)(2) of the Act prohibits discrimination in regard to hire or tenure of employment or any term or condition of employment in order to encourage or discourage membership in or other support for any labor organization. This section of the Act obviously prohibits an employer from taking any adverse employment action against an employee because of his union and/or protected concerted activity. Similar issues arise under Section 10(a)(1) of the Act, which prohibits an employer from interfering with, restraining or coercing public employees in the exercise of the rights guaranteed by the Act.

To establish a prima facie case of unlawful discrimination under the Act, the charging party must show, by a preponderance of the evidence, that: (1) a public employee was engaged in union or other protected concerted activity; (2) the employer was aware of the nature of the employee's union or other protected concerted activity; and (3) the employer took adverse action against the employee for discriminatory reasons (animus toward the employee's participation in union activities). Since motive is a question of fact, the Board may infer antiunion motivation from either direct or circumstantial evidence. An employer's antiunion motivation may be reasonably inferred from factors such as: (1) an employer's expressed hostility towards unionization, together with knowledge of the employee's union activities; (2) proximity in time between the employee's union activities and the adverse employment action; (3) disparate treatment of employees or a pattern of conduct which targets union supporters for adverse employment action; (4) inconsistencies between the proffered reason for the adverse employment action and other actions of the employer; and (5) shifting explanations for the adverse employment action. City of Burbank v. Illinois State Labor Relations Board, 128 Ill. 2d 335, 346, 538 N.E.2d 1146, 1150, 5 PERI ¶4013 (1989).

If the charging party meets its burden, the employer must demonstrate that it would have taken the adverse action even in the absence of the employee's protected activities. The reasons proffered for the discharge must be bona fide and must not be pretextual. City of Burbank v. Illinois State Labor Relations Board, 128 Ill. 2d at 346, 538 N.E.2d at 1150. If the reasons are a "mere litigation figment" or were not relied upon, then the determination of pretext ends the inquiry. Id. Where the employer is found to have relied, in part, upon the proposed legitimate reasons for the discharge, the case is one of "dual motive" and the employer must show by a preponderance of the evidence that the employee would have been terminated notwithstanding his union involvement. Id.

In City of Burbank, the court determined that these standards achieve the appropriate balance between the employee's right to protection from an employer's antiunion hostility and the employer's right to discharge the employee for legitimate business reasons. Id.

Under the Act, a public employee has the right, upon request, to union representation at an investigatory interview if he reasonably believes the investigation will result in disciplinary action. State of Illinois, Department of Corrections (Gerald Morgan), 1 PERI ¶2020 (IL SLRB 1985); City of Chicago (Department of Aviation), 13 PERI ¶3014 (IL LLRB 1997). See also NLRB v. Weingarten Inc., 420 U.S. 251 (1975). When an employee asserts his right to union assistance, commonly known as a Weingarten request, the employer has three options: (1) grant the request; (2) discontinue the interview; or (3) offer the employee the option of continuing the interview unaccompanied by a union representative or forgoing the interview altogether, thereby dispensing with any benefit it may have conferred on the employee. If, however, the employer insists on continuing an investigative interview without permitting the employee to have union representation, the employer violates Section 10(a)(1) of the Act. Id. Additionally, if the employer proceeds to retaliate against an employee because he has raised or exercised his r statutory right to union assistance, the employer commits a separate violation of Section 10(a)(1) of the Act based on the retaliatory act. City of Highland Park, 15 PERI ¶2004 (IL SLRB 1999).

Until now, the Weingarten right has only arisen in the context of employees who are represented by a labor organization. However, the NLRB recently held that non-represented employees also have this right. See Epilepsy Foundation of Northeast Ohio, 331 NLRB No. 92 (2000). To date, the Board has not considered the application of the Weingarten right to unrepresented employees.

In City of Chicago (Department of Aviation), 13 PERI ¶3014 (IL LLRB 1997), the then-Local Board held that in cases alleging a violation of Weingarten rights, make-whole relief is warranted where: (1) the employer took the adverse action in order to punish the employee for asserting his statutory right to union representation; or (2) the employer's decision to discharge or discipline was "predominantly dependent upon" information obtained from the unlawful interview. The Board further opined that it would impose a cease and desist order, and sustain the employee's discipline or discharge notwithstanding the Weingarten violation, where the record demonstrates the employer possessed sufficient evidence of wrongdoing warranting imposition of discipline, independent of information obtained in violation of the employee's Weingarten rights. The Board declined to follow the approach announced by the NLRB in Taracorp Industries, 273 NLRB 221 (1984). In Taracorp, the NLRB held that the appropriate remedy for a Weingarten violation is a cease and desist order if the employee was disciplined or discharged for reasons other than his exercise of protected rights. The Board justified its divergence from the NLRB by contrasting the language of Section 10(c) of the Act with Section 10(c) of the NLRA, finding that the Illinois General Assembly had granted it broader remedial powers which allowed make-whole relief when necessary to effectuate the policies of the Act.

The Board most recently considered the Weingarten issue in State of Illinois, Department of Central Management Services (Department of Corrections), 16 PERI ¶2023 (IL SLRB 2000). There, the Board found that the Employer had violated six employees' Weingarten rights by ordering the union representative who accompanied each employee to an investigatory interview to remain silent during the interview. The Board held that the Employer's action precluded the union representative from assisting the employees and clarifying the facts under investigation, duties which both the Supreme Court and the NLRB clearly envisioned the union representative's role to encompass. See NLRB v. Weingarten, 420 U.S. 251 (1975); International Ladies' Garment Workers Union v. Quality Manufacturing Co., 420 U.S. 276 (1975); Greyhound Lines Inc. 273 NLRB 1443 (1985). The Board also rejected the Employer's argument that Weingarten rights do not apply to public employees in Illinois, finding that Illinois appellate courts, the State Board, the Local Board and the Illinois Educational Labor Relations Board had all held that public employees possess Weingarten-type rights, and that it would continue to apply the right to employees subject to its jurisdiction.

Under Section 10(a)(4) of the Act, an employer commits an unfair labor practice when it refuses to bargain collectively in good faith with a labor organization which is the exclusive representative of public employees in an appropriate unit. A public employer violates Section 10(a)(4) when it makes a unilateral change in a mandatory subject of bargaining without granting prior notice to and an opportunity to bargain with its employees' exclusive bargaining representative. Additionally, Section 7 of the Act provides that an employer must bargain in good faith with respect to wages, hours and other terms and conditions of employment not excluded by Section 4 of the Act. Section 4 provides that employers are not required to bargain over matters of inherent managerial policy. However, Section 4 requires good faith collective bargaining over the effects of managerial policy decisions that affect the terms and conditions of employment of bargaining unit members, even if the management policy itself is not subject to negotiation ("impact bargaining"). County of Cook (Juvenile Temporary Detention Center), 14 PERI ¶3008 (IL LLRB 1998); American Federation of State, County and Municipal Employees, AFL-CIO v. Illinois State Labor Relations Board, 190 Ill. App. 3d 259, 546 N.E.2d 687, 6 PERI ¶4004 (1989). Furthermore, it is well settled that impact bargaining must take place at a meaningful time before the contemplated action is taken. County of Cook (Juvenile Temporary Detention Center).

The purpose of mandatory bargaining is to enable the union to offer alternatives that may permit the employer to achieve its objectives without taking the contemplated action. First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981); Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203 (1964). The concept of mandatory bargaining is premised on the belief that collective discussions backed by the parties' economic weapons will result in decisions that are better for both management, labor and society as a whole. Cook County Hospital, 2 PERI ¶3001 (IL LLRB 1985).

The Illinois Supreme Court established a three-part test to determine whether an issue is a mandatory subject of bargaining. Central City Education Association v. Illinois Educational Labor Relations Board, 149 Ill.2d 496, 599 N.E.2d 892 (1992); see also, City of Belvidere, 181 Ill. 2d 191, 692 N.E.2d 295, 14 PERI ¶4005 (1998). The first prong of the test involves a determination of whether the issue involves wages, hours and terms and conditions of employment. If the answer to this inquiry is no, then the employer has no duty to bargain. If the answer is yes, then the second prong of the test must be fulfilled. The second prong involves the determination of whether the issue is one of inherent managerial authority. If the answer to this inquiry is no, the analysis ends and the matter is considered a mandatory subject of bargaining. If the answer is yes, the analysis proceeds to the third prong. The third prong weighs the benefits that bargaining will have on the decision-making process against the burdens that bargaining imposes on the employer's authority.

In Westinghouse Electric Corp., 150 NLRB 1574 (1965), the NLRB set forth several factors to be considered when determining whether an employer's unilateral action is a mandatory subject of bargaining. The Illinois Supreme Court adopted these factors in City of Belvidere. When determining whether an issue involves wages, hours and terms and conditions of employment, consider the following factors: (1) would the action involve a departure from previously established operating practices; (2) would the action affect the employees' conditions of employment; and (3) would there be a significant impairment of job tenure, employment security, or reasonably anticipated work opportunities for those in the bargaining unit if such an action was implemented. A change in the conditions 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. Id.

A determination of whether bargaining is required over a particular management decision depends on the specific facts of each case. City of Belvidere. The Board should consider the public employer's mission and the extent to which collective bargaining would interfere with its ability to implement public policy. Id. Another factor that should be considered in resolving the negotiability question is the practicality of bargaining in the given situation. Id.

Finally, it is well established that the traditional remedy in cases involving an unlawful unilateral change in employees' wages, hours and other terms and conditions of employment is an order that the employer rescind the policy change for the unit employees, bargain over the policy decision and its effects on the employees' terms and conditions of employment, and restore adversely affected employees to the status they occupied before the unilateral action occurred. County of Cook (Juvenile Temporary Detention Center), 14 PERI ¶3008 (IL LLRB 1998).

The duty to bargain is found in Section 7 of the Act. That section also provides that there is no duty to bargain collectively over matters " . . specifically provided for in any other law . . ." A conflict arises when an employee covered by a collective bargaining agreement wants to use the dispute resolution mechanisms incorporated in the agreement and the employer claims that it does not have to comply with that portion of the agreement when another law or mechanism, such as the Illinois Municipal Code or a municipal civil service commission, provides a different process and/or forum for the processing of dispute resolution matters.

The Illinois Supreme Court addressed this issue in Decatur v. American Federation of State, County and Municipal Employees, Local 268, 122 Ill. 2d 353, 522 N.E.2d 1219 (1988). The court held that, under Section 7, negotiation proposals that conflicted with other laws were not bargainable. It stated that the language of Section 7 was an "accommodation provision" that limits the duty to bargain. Id. at 362, 1223. However, the court also stated that the objectives of the Act would not be served by prohibiting parties from bargaining over any subject on which there was a state statute or a local ordinance. Id. at 364, 1224. The mere existence of a statute on a subject does not, without more, remove that subject from the scope of bargaining. Rather, it is necessary to consider the nature of the ordinance. For example, if a town has the ability under its home rule powers to amend or change the terms of an ordinance or another law, then it can bargain over such a change. The court also stated that it was necessary to determine how the particular collective bargaining proposal fit in with the purposes of the Act. The court then discussed the federal labor policy of favoring arbitration as a beneficial mechanism for the resolution of disputes arising from a collective bargaining agreement, and held that especially where the employer maintains home rule status, the mere existence of another law does not prohibit bargaining over such a proposal.

Recently, in Illinois Fraternal Order of Police Labor Council v. Town of Cicero, 301 Ill. App. 3d 323, 703 N.E.2d 559 (1998), the Illinois Appellate Court for the First District adhered to the home rule versus non-home rule distinction in determining negotiability. The court distinguished City of Markham v. State and Municipal Teamsters, Chauffeur & Helpers, Local 726, 299 Ill. App. 3d 615, 701 N.E.2d 153 (1998), where the court recently found that a non-home rule entity could not delegate to an arbitrator a police commission's statutory authority to hear employee disciplinary matters. The court concluded that since the City of Cicero was a home rule municipality, it had the authority to alter the Municipal Code procedures, and therefore could bargain over and agree to arbitration.

The Illinois courts have thus created a clear distinction between home rule and non-home rule entities, providing for the superiority of the Act's bargaining requirements for home rule entities and for superiority of civil service procedures for non-home rule entities.

The Illinois legislature recently addressed this issue via an amendment to the Illinois Municipal Code. Both the Illinois House and Senate overrode the Governor's veto of House Bill 1165, which amended the Code to allow municipalities to negotiate with labor organizations regarding arbitration processes to resolve disciplinary matters that are also covered by Police, Fire and Civil Service Commissions created under the Code. This bill makes it a mandatory subject of bargaining for home rule units and for those non-home rule units that have bargained such a provision into their collective bargaining agreements. For those non-home rule entities that have not bargained such a provision, this matter is a permissive subject of bargaining.

Under Section 10(b)(1) of the Act, a labor organization violates its duty of fair representation only by intentional misconduct in representing employees. To demonstrate intentional misconduct by a union within the meaning of Section 10(b)(1), a charging party must meet a two-part test. First, he must prove that the union's conduct was intentional, invidious and directed at him. Second, he must establish that the intentional action occurred because of and in retaliation for some past activity, or because of his status (such as race, gender, or national origin), or animosity between himself and the union's representatives (such as that based upon personal conflict or her dissident union practices). Murry v. American Federation of State, County and Municipal Employees, Local 1111, 305 Ill. App. 3d 627, 712 N.E.2d 874, 15 PERI ¶4009 (1999), aff'g, American Federation of State. County and Municipal Employees. Local 1111 (Murry), 14 PERI ¶3009 (IL LLRB 1998); Chief Judge of the 10^th Judicial Circuit (Robertson), 18 PERI ¶2014 (IL LRB-SP 2002); American Federation of State, County and Municipal Employees (Drain), 16 PERI ¶2012 (IL SLRB 2000); American Federation of State, County and Municipal Employees, Council 31 (Segrest), 16 PERI ¶2003 (IL SLRB 1999); American Federation of State, County and Municipal Employees. Local 1111 (Murphy), 9 PERI ¶3025 (IL LLRB 1993); Service Employees International Union, Local 25 (Breland), 7 PERI ¶3041 (IL LLRB 1991); Service Employees International Union, Local 73 (Milton), 7 PERI ¶3033 (IL LLRB 1991). To have a viable claim under Section 10(b)(1) of the Act, a charging party should allege this unlawful motive with a showing of fraud, deceitful actions or dishonest conduct by the union. Chief Judge of the 10^th Judicial Circuit (Robertson), 18 PERI ¶2014 (IL LRB-SP 2002); American Federation of State, County and Municipal Employees (Drain), 16 PERI ¶2012; American Federation of State. County and Municipal Employees, Council 31 (Segrest), 16 PERI ¶2003; American Federation of State, County and Municipal Employees Local 1111 (Murry), 14 PERI ¶3009.

In Chief Judge of the 10^th Judicial Circuit (Robertson), 18 PERI ¶2014 (IL LRB-SP 2002), the State Panel had the opportunity to explain the procedural steps and evidence necessary to establish a violation of Section 10(b)(1) of the Act. The Board chose to model its analysis upon the well-established standard utilized in cases which have arisen under Section 10(a)(1) of the Act, as intentional discrimination is required to prove both violations. See City of Burbank v. Illinois State Labor Relations Board, 128 Ill. 2d 335, 538 N.E.2d 1146, 5 PERI ¶4013 (1989); Sheriff of Jackson County v. Illinois State Labor Relations Board, 302 Ill. App. 3d 411, 705 N.E.2d 924, 15 PERI ¶4004 (1999), appeal denied, 184 Ill. 2d 574, 714 N.E.2d 533 (1999), aff'g, 14 PERI ¶2009 (IL SLRB 1998); City of Decatur, 14 PERI ¶2004 (IL SLRB 1997), aff'd by unpub. order, 15 PERI ¶4006 (1999); North Maine Fire Protection District, 16 PERI ¶2037 (IL SLRB 2000).

Thus, the State Panel held that, in duty of fair representation cases, the charging party must first establish a prima facie case by demonstrating, by a preponderance of the evidence: 1) that the employee has engaged in activities tending to engender the animosity of union agents, or that the employee's mere status, such as race, gender, religion or national origin, may have caused animosity; 2) that the union was aware of the employee's activities and/or status; 3) that there was an adverse representation action by the union; and 4) that the union took the adverse action against the employee for discriminatory reasons, i.e., because of animus toward the employee's activities or status. To prove the requisite causal connection between the employee's protected activities and the adverse representation action, the charging party should submit direct or circumstantial evidence establishing the union's unlawful motive.

Once the charging party establishes a prima facie case, the burden then shifts to the union to demonstrate that it would have taken the same action in the absence of the animus. Id. In other words, the union can escape liability if it proffers a legitimate explanation for its adverse representational actions and the Board ultimately determines that its explanation is not merely pretextual. Id.

In Chief Judge, the Board applied this standard and found that the charging party had established certain elements of her prima facie case. She proved that: she engaged in activities which engendered the animosity of Union agents; the Union had knowledge of these activities; one of the Union's agents harbored personal animosity toward her. However, Charging Party fails to satisfy her burden regarding the remainder of her prima facie case, because she did not establish that the Union took any adverse representational action against her for discriminatory reasons. In other words, the Board found that the charging party's case lacked the crucial causal connection between the Union agent's personal animosity and the actions taken by the Union, which were alleged to have disadvantaged her.

However, in Metropolitan Alliance of Police (Cunigan), the Local Panel applied the Robertson standard and found find that by refusing to arbitrate the charging party's suspension grievance because of his support for a rival union, the Union violated its Section 10(b)(1) duty of fair representation. The Local Panel found that the Union's admission of animus against the charging party for pursuing dissident union activities was clear, as was the fact that this animus motivated the Union's decision not to pursue the suspension grievance to arbitration.