The Illinois FOP Labor Council

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By Gary Bailey, Attorney - Friday, January 25, 2013

 

Can the employer refuse to arbitrate a grievance after the expiration of the collective bargaining agreement?

Most collective bargaining negotiations in the public sector continue past the expired term of the agreement.  As a result, the question arises as to whether the union and/or its members can enforce a contract that has expired.

This question has become increasingly important as more and more law enforcement officers bargain the right to have their discipline appealed through the grievance procedure rather than through a Board of Fire and Police Commission or Merit Commission.

On December 31, 2012, the Third District Appellate Court issued an opinion in Thompson v. Policemen’s Benevolent Labor Committee, et al answering this question.

The County of Bureau and the Sheriff of Bureau County entered into a collective bargaining agreement with the Illinois Fraternal Order of Police Labor Council, with a term of December 1, 2007 through November 30, 2010.  The agreement contained two pertinent provisions:

Any disciplinary action imposed by decision of the Merit Commission may be subject of a grievance pursuant to this Article and Article 13 (Suspension, Discipline and Discharge) of this Agreement.

The Agreement also contained this provision:

If negotiations for a successor agreement have not been completed by the expiration date of the agreement, this Agreement shall remain in full force.

In January 2011, after expiration of the collective bargaining agreement, the bargaining unit voted to change unions and replace the Labor Council with the PBLC.  As of the date this article was posted, the author believes the PBLC has not written a new agreement for the employees in the Bureau County Sheriff’s Department.

On February 21, 2011, the Bureau County Sheriff’s Merit Commission unanimously voted to terminate the employment of Dawn Dove, a law enforcement officer in the bargaining unit represented by the PBLC.  In response, the PBLC notified the Sheriff it was invoking the arbitration clause of the expired agreement and submitting Dove’s termination to arbitration.

The Sheriff filed a complaint for declaratory judgment in circuit court, alleging that the collective bargaining agreement no longer provided a right to arbitrate discipline because it had expired.  The Court granted the PBLC’s motion for summary judgment, but the Sheriff filed an appeal in the Third District Appellate Court.

The Appellate Court relied upon precedent set by the US Supreme Court in Litton Financial Printing Division v. NLRB, 501 U.S. 190 (1991), in which the Supreme Court held that if a collective bargaining agreement contains clear terms that certain benefits survive AFTER the agreement’s expiration, disputes regarding those benefits are subject to that agreement’s arbitration provisions.

Clearly, the Labor Council wrote language into the agreement that all the benefits in the contract were to continue after the agreement’s expiration.  In so doing, the Labor Council ensured that the disciplinary appeal process would survive the expiration date of the contract.  Regardless of the fact that the employees of the Bureau County Sheriff’s Department wanted to change their union, the Labor Council made sure these employees’ rights were guaranteed into the future.

There are some collective bargaining agreements that provide the contract no longer applies if there is a change in unions.  Such provisions are beneficial only to the incumbent union, which can then hold its members hostage against change.  In this case, the Illinois Fraternal Order of Police Labor Council wrote language that was beneficial to its members, even if they chose to change unions.

The Sheriff argued that the US Supreme Court precedent did not apply because the agreement was written and executed by the Labor Council, not the PBLC.  The Court, however, noted that the U.S. Supreme Court has long held that successor employers must honor the collective bargaining agreements signed by predecessor employers, thus agreements may survive even if parties to it change. 

In the present case, the agreement negotiated by the Labor Council did not provide that it was null and void if the employees chose a new exclusive bargaining representative.  The Court further noted that Section 9 of the Illinois Public Labor Relations Act does not provide that a collective bargaining agreement becomes void upon decertification.

This decision is not out of line with court opinions in other jurisdictions.  Recently, in Maryland, the highest court in the state issued a decision (Baltimore County FOP Lodge #4 v. Baltimore County, Maryland) reinforcing the legal idea that a dispute arising after the expiration of a collective bargaining agreement may still be arbitrable if the rights referred to in the grievance vested during the term of the agreement.  In Massachusetts, its Supreme Judicial Court established the same legal position in 1983 (Boston Lodge 264, Dist. 38, IAM&AW v. Massachusetts Bay Transportation Authority).

In Thompson, the Illinois Appellate Court for the Third District has established this important legal precedent for public employers and unions in Illinois to follow.  This precedent is extremely important given that most public sector negotiations continue well after the expiration of an existing collective bargaining agreement.

But it is pivotal that a collective bargaining agreement contain broad language that extends the benefits in the agreement past its expiration date in order for this precedent to be effective.  Furthermore, it is important that the union writing the language in your labor contract is looking out for YOUR interests and not sacrificing YOUR rights.

Editor's Note:  Mr. Bailey is an attorney with the Illinois Fraternal Order of Police Labor Council and received his undergraduate degree from Northwestern University and his juris doctor from Chicago-Kent College of Law.  He is a member of the Senior Partner Council at Chicago-Kent and is a Fellow in the College of Labor Employment Lawyers.