Category Archives: Union Contracts

In a Dramatic Turn, an Arbitrator Finds that the Substitutes Act Does Not Prohibit Municipality from Shutting Down Ambulance Services

Contributed by Julie Proscia and Carlos Arévalo, May 25, 2018

In an unprecedented fashion, an arbitrator recently issued an award limiting the scope of Public Act 095-0490, otherwise known as the Substitutes Act. In doing so, the City of Mattoon successfully fought, through SmithAmundsen attorneys Julie Proscia and Carlos Arévalo, and won the right to close their ambulance service. So why is this award important? This award now serves as a basis for municipalities to be able to have the autonomy to review their scope of services and determine which services are best for their community as opposed to the scope of services being dictated by the union.

ambulance

Ambulance driving on street with lights and sirens on

The case, involving the City of Mattoon and the IAFF, started in July 2017 when after a months’ long internal and comparative evaluation, the city determined that due to rising operational, personnel and pension related costs, its ambulance service was no longer sustainable.  Accordingly, the city adopted a resolution seeking the future elimination of its ambulance service effective May 1, 2018, the expiration of the current contract. Once implemented, ambulance services would be solely performed by area private ambulance companies. Not surprisingly, the union filed a grievance attacking the city’s resolution primarily basing its challenge on the Substitutes Act, which was specifically incorporated into the contract. The city denied the grievance and, to no avail, sought to bargain the impact of its decision with the union.

During arbitration, the union argued that the Substitutes Act specifically prohibited the city from replacing qualified firefighters or paramedics with unqualified persons, and that only those who have gone through the appointment process before the City of Mantoon’s Fire and Police Commissioners are properly qualified. As a result, the union claimed, the ambulance service could only be performed by full-time firefighters belonging to the union. The Substitutes Act has been used as both a veritable sword and a shield by unions attesting that no non-bargaining unit members can ever be given work that is currently or previously performed by the unit. If successful, the union would have made it virtually impossible to ever eliminate a service.

The arbitrator rejected the union’s arguments and found that the “Substitutes Act imposes no limitation on the elimination of ambulance services in any municipality… [but] only prevents municipal fire departments from hiring persons “not qualified” for regular appointment…to be used as a temporary or permanent substitute for a municipality’s fire department.” Further, the arbitrator continued, “the Employer is not planning to hire unqualified or uncertified firefighters to staff the ambulance service. The Employer seeks to completely eliminate the city-operated ambulance service…There is no language in the Substitutes Act preventing private ambulance companies from providing ambulance services to municipalities.”

In rejecting the union’s arguments, the arbitrator weakened unions’ typical stance that they need not engage in bargaining pursuant to the Substitutes Act. This award establishes that municipalities are not as hamstrung by the act as unions suggest, and may pursue discontinuing services if doing so presents a more viable alternative to facing a financial crisis. While impact bargaining and other procedural hurdles associated with discontinuing services will still have to be addressed, municipalities now have the latitude to determine the scope of services that are most appropriate for their community.

 

Update: Janus Files Petition for Appeal to the Supreme Court Seeking to Overrule Abood

Contributed by Carlos Arévalo, June 14, 2017

As previously reported on March 29th, the fight against the Supreme Court’s 1977 decision in Abood v. Detroit Board of Education continues. On June 6, 2017, Mark Janus, an Illinois state employee who is required to pay agency fees to AFSCME Council 31 pursuant to the Illinois Public Labor Relations Act, filed a petition for a writ of certiorari seeking review of a seventh circuit decision that affirmed the dismissal of his complaint. The petition poses the following question to the Supreme Court:  should Abood be overruled and public sector agency fee arrangements declared unconstitutional under the First Amendment?

The State of Illinois and AFSCME have 30 days to file their response to Janus’ petition for review. The Supreme Court is expected to consider the petition in late September, when the Justices return from their summer recess. If review is granted, the case would likely be argued in early 2018, with a decision due approximately a year from now.

The Survival of Abood v. Detroit Board of Education, Part 3

Contributed by Carlos Arévalo, March 29, 2017

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Gavel and scales of justice

Exactly a year ago today in what now appears to be a temporary reprieve, the United States Supreme Court issued its decision in Friedrichs v. California Teachers Association.  An “equally divided court” affirmed the judgment of the 9th Circuit that “fair share” or “agency” fee provisions in public sector contracts were valid.  Up to that time, observers had anticipated that the Supreme Court would use Friedrichs to overturn its 1977 opinion in Abood v. Detroit Board of Education, which held agency fees were deemed proper if exacted for “collective bargaining, contract administration and grievance adjustment” but not for “ideological or political purposes.”  However, with the passing of Justice Antonin Scalia, the Supreme Court could not muster a majority and the status quo remained.

Fast forward to March 2017, and following Donald Trump’s victory in the race for the White House, we find ourselves in the middle of confirmation hearings to fill the Supreme Court vacancy with President Trump’s choice, Judge Neil Gorsuch, a conservative appellate judge from the 10th Circuit who, most would agree, will likely tip the scales in favor of overturning Abood.

Indeed, new cases are making their way through the system in an effort to put the fair share question back on the Supreme Court’s docket.  Just last week, the 7th Circuit affirmed a dismissal of a complaint in Janus v. AFSCME where Judge Posner noted that neither the 7th Circuit nor the district court can overrule the Abood decision.  Janus, which began as Rauner v. AFSCME, was first filed by Republican Illinois Governor Bruce Rauner shortly after his election. Northern Illinois District Judge Robert Gettleman dismissed Governor Rauner’s complaint noting that Rauner had “no personal interest at stake” as he was “not subject to the fair share fees requirement.”  To keep the lawsuit moving forward, and with the backing of the National Right to Work Legal Defense Foundation and the Liberty Justice Center, Mark Janus and fellow state employee Brian Trygg intervened in the case.

In February 2017, Ryan Yohn and a number of his fellow teachers filed a case in the Central District of California against the California Teachers Association following the Friedrichs blueprint and seeking to enjoin Defendants from requiring nonunion employees to pay agency fees.  And, in the Western District of Kentucky, a class action filed by teachers working for Jefferson County Public School Board of Education where plaintiffs allege that requiring union nonmembers to pay a “fair share” fee is unconstitutional is currently pending and moving forward.

As noted by Justice Elena Kagan during the Friedrichs oral arguments in early 2016, overruling Abood will impact “tens of thousands of contracts with [agency fee] provisions…affect[ing] millions of employees” across the country.  Clearly, we have not heard the last word on this issue and it will most certainly make its way up to the Supreme Court.  Stay tuned!

Check out our previous articles on Abood and the challenges to public sector agency fees:

Part One: Will Abood V. Detroit Board of Education Survive?

Part Two: Abood v. Detroit Board of Education Survives…for now?

Abood v. Detroit Board Of Education Survives…for now?

Contributed by Carlos Arévalo

Back in November of last year, I wrote about Friedrichs v. California Teachers Association, “one of five cases to watch” during the Supreme Court’s 2015 term according to Washington’s The Hill newspaper.

At the beginning of the term, many observers had anticipated that the Court’s conservative majority would use Friedrichs to overturn its 1977 opinion in Abood v. Detroit Board of Education, a case which upheld “fair share” provisions in public sector union contracts as dues properly exacted for “collective bargaining, contract administration, and grievance adjustment purposes” so long as their dues were not used for other ideological or political purposes. However, the passing of Justice Antonin Scalia caused Friedrichs to limp to the finish line without a winner even being declared. On Tuesday March 29th, the Court issued a one sentence decision that the judgment of the 9th Circuit was “affirmed by an equally divided Court.”

Gavel2During oral arguments on January 11th, Justice Samuel Alito questioned whether Abood was even workable, and challenged California Solicitor General Edward Dumont to draw a line between legitimate contract administration fees and lobbying fees, specifically pointing to Section 3546(b) of the California Government Code which provides that agency fees may be used for “the cost of lobbying activities designed to secure advantages in wages, hours, and other conditions of employment, in addition to those secured through meeting and negotiating with the employer.” On the other side of the argument, Justice Elena Kagan focused on the issue of overruling long-standing precedent that would impact “tens of thousands of contracts with [agency fee] provisions…affect[ing] millions of employees.” The path seemed cleared for a 5-4 decision in favor of striking down the fair share fees and overturning Abood until February 13th when news broke out that Justice Scalia had died while on a hunting trip in Texas.

Had the Supreme Court overturned Abood, it would have had a profound impact across the country’s twenty five states that permit compulsory “fair share” for teachers, firefighters, police and other public workers. Certainly, the decision is a reprieve for unions. The parties can petition for a rehearing. Pursuant to the Court’s rules, such a petition would have to be approved by 5 Justices, which is highly unlikely in light of the 4-4 vote in the decision. As a result, a new case may have to be filed and processed through the lower courts. Assuming the Republicans stay firm on their position to block Judge Merrick Garland’s nomination, this constitutional question will not be resolved until after the 2016 Presidential election and will rest squarely on the shoulders of the new Justice that is ultimately appointed and confirmed.