                                  2016 IL App (1st) 152478
                                       No. 1-15-2478

                                                                             FIRST DIVISION
                                                                             December 5, 2016


SKOKIE FIREFIGHTERS UNION, LOCAL 3033, )                  Petition for administrative review of
                                                 )        a decision and order of the Illinois
        Petitioner,                              )        Labor Relations Board, State Panel
                                                 )
v.                                               )
                                                 )
THE ILLINOIS LABOR RELATIONS BOARD, )
STATE PANEL; JOHN HARTNETT, JOHN                 )        Illinois Labor Relations Board
SAMOLIS, KEITH SNYDER, MICHAEL COLI, )                    Case No. S-CA-14-053
and ALBERT WASHINGTON, the Members of            )
Said Board and Panel in Their Official Capacity  )
Only; MELISSA MLYNSKI, Executive Director )
of Said Panel in Her Official Capacity Only; and )
THE VILLAGE OF SKOKIE,                           )
                                                 )
        Respondents.                             )


       JUSTICE SIMON delivered the judgment of the court, with opinion.
       Presiding Justice Connors and Justice Harris concurred in the judgment and opinion.

                                          OPINION

¶1     This review action stems from collective bargaining negotiations between the Skokie

Firefighters Union (Union) and the Village of Skokie (Village). While under the 2009-2010

collective bargaining agreement, the parties were working to formulate the successor agreement,

the 2010-2014 agreement. Negotiation and mediation for the 2010-2014 agreement failed to result

in compromise, so the Union invoked compulsory arbitration under the Illinois Public Labor

Relations Act (Labor Relations Act) (5 ILCS 315/1 et seq. (West 2012)). The arbitrator ruled in

favor of the Village, meaning that the provisions regarding promotions as set forth in the

2009-2010 agreement remained in effect for the 2010-2014 agreement. The Union filed an unfair
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labor practice complaint against the Village. The Illinois Labor Relations Board (ILRB) dismissed

the complaint on the Village’s motion, finding that the Village did not breach its duty to bargain in

good faith. This review followed. We reverse the Board’s decision and remand the cause to the

ILRB with directions to enter an order that the Village engaged in an unfair labor practice.

¶2                                        BACKGROUND

¶3     In June 2010, the Union and the Village were negotiating an agreement to succeed their

2009-2010 collective bargaining agreement. The parties could not agree on certain material terms.

The Labor Relations Act grants public employees the right to organize, but it prohibits firefighters,

among others, from striking. 5 ILCS 315/2 (West 2012). Instead, the Labor Relations Act gives

those employees a procedure to assert their grievances, engage in negotiation and mediation, and,

if no compromise can be reached, to compel arbitration. 5 ILCS 315/14 (West 2012). In this case,

negotiation and mediation failed, and the Union invoked compulsory interest arbitration.

¶4     Relevant to this review, the Union wanted changes to Article XXI of the agreement—the

article that sets forth the requirements and procedures for a firefighter to be promoted to the rank of

lieutenant. The Union wanted the collective bargaining agreement to contain some of the standards

set forth in the Fire Department Promotion Act (Promotion Act) (50 ILCS 742/1 et seq. (West

2012)) along with other modifications. In the 2009-2010 agreement, the Union and the Village had

agreed to different terms for promotions to lieutenant than those set forth in the Promotion Act.

¶5     Prior to the arbitration hearing, the parties exchanged settlement offers. In an offer dated

August 21, 2013, the Union detailed the changes it wanted regarding the standards and procedures

for promotions to lieutenant. The offer was made before the deadline for final prehearing offers,

but at the arbitration hearing, the Village objected to the arbitrator considering the Union’s offer,



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contending that the offer was beyond the scope of the parties’ prearbitration negotiations and that it

was submitted too late. The Village did not respond with a prehearing counteroffer on the issue.

The parties still dispute the ramifications of their respective prearbitration conduct.

¶6     Another issue is whether the promotion standards are mandatory or permissive subjects of

bargaining. Mandatory subjects of bargaining are those matters that neither party can refuse to

negotiate. Village of Oak Lawn v. Illinois Labor Relations Bd., State Panel, 2011 IL App (1st)

103417, ¶ 14. If an agreement cannot be reached, impassed mandatory subjects must be decided by

the arbitrator. Town of Cicero v. Illinois Association of Firefighters, IAFF Local 717 AFL-CIO,

CLC, 338 Ill. App. 3d 364, 370 (2003). On the other hand, permissive subjects of bargaining are

terms that the parties are not required to negotiate, but if one side proposes negotiation on those

matters, the other side may voluntarily negotiate. Lid Elec., Inc. v. International Brotherhood of

Electrical Workers, Local 134, 362 F.3d 940, 943 (7th Cir. 2004). A party cannot insist on

bargaining over a permissive subject to the point of impasse and negotiation can be cut off at any

time without recourse. See Board of Trustees of University of Illinois v. Illinois Education Labor

Relations Board, 244 Ill. App. 3d 945, 949 (1993). Permissive subjects of bargaining are not to be

decided by the arbitrator. 5 ILCS 315/14(h) (West 2012); 80 Ill. Adm. Code 1230.90(k), amended

at 27 Ill. Reg. 7456 (eff. May 1, 2003).

¶7      At the arbitration hearing, the Union maintained that the promotion standards are

permissive subjects of bargaining. In the past, the Union had agreed to terms other than those in the

Promotion Act and, thus, waived their statutory rights. This time, the Union insisted on its

statutory rights, and it argued that the arbitrator could not order the parties to maintain the status

quo under the 2009-2010 agreement because it would be ordering the Union to accept terms that



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were permissive subjects of bargaining that it was free to not accept. The Village, on the other

hand, argued that the promotion standards were not properly before the arbitrator because they

were not bargained for before arbitration.

¶8     The arbitrator ruled in favor of the Village. The arbitrator decided that the promotion

system was not broken so there was no reason for him to change the system that had been in place

in the previous collective bargaining agreements. The arbitrator did not make any finding

regarding the Village’s argument that the arbitrator lacked jurisdiction to decide the issue because

the Union did not raise the issue of promotion standards during negotiations. Instead, the arbitrator

simply decided that the status quo should maintain.

¶9     After the arbitrator’s ruling, the Union filed an unfair labor practice claim with the ILRB.

The Village filed a motion to dismiss the complaint. The ILRB dismissed the complaint, ruling

that the Village’s submission of a permissive subject of bargaining to the arbitrator did not amount

to an unfair labor practice. The Union petitioned for administrative review.

¶ 10                                         ANALYSIS

¶ 11   When an administrative agency’s decision involves a pure question of law, we review it de

novo. Carpetland U.S.A., Inc. v. Illinois Department of Employment Security, 201 Ill. 2d 351, 369

(2002). When reviewing purely factual findings, the agency’s findings and conclusions are

deemed to be prima facie true and correct and, thus, are reviewed under a manifest weight of the

evidence standard. 735 ILCS 5/3-110 (West 2012). Under some circumstances, however, the issue

presented cannot be accurately characterized as either a pure question of fact or a pure question of

law and, therefore, will be treated as a mixed question, subject to an intermediate standard of

review. Carpetland U.S.A, 201 Ill. 2d at 369.



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¶ 12    Here, there is no dispute over facts. The arbitrator and the ILRB made no findings of fact.

The ILRB dismissed the Union’s complaint on the basis that there were no issues of fact and that

the Union’s charge was insufficient as a matter of law, so de novo review is appropriate. However,

insofar as the case concerns a statute that the agency is charged with administering, we accord the

agency’s interpretation deference. See Medina v. Board of Education of the City of Chicago, 2014

IL App (1st) 130588, ¶ 17.

¶ 13    On review, there is no genuine dispute that the standards for promotion to the rank of

lieutenant are a permissive subject of bargaining. The Promotion Act states that it sets forth

minimum standards, but that the employer or the union members may waive the provisions

concerning promotion standards. 50 ILCS 742/10(d)-(e) (West 2012). And the Promotion Act

expressly cements the bargaining status of deviations from the Promotion Act’s promotion

standards, providing that “any such waivers shall be considered permissive subjects of

bargaining.” 50 ILCS 742/10(e) (West 2012). Neither party disputes that the subject matter of this

review constitutes a permissive subject of bargaining. The case concerns the differences between

the promotion criteria from the statute and the promotion criteria that are to end up as part of the

collective bargaining agreement, and the waiver of a statutory right is a permissive subject of

bargaining. Mt. Vernon Education Ass’n v. Illinois Education Labor Relations Board, 278 Ill. App.

3d 814, 820 (1996).

¶ 14    The Promotion Act sets the baseline standards that the union members are entitled to insist

upon for each agreement. The provisions of the Promotion Act are the default. Each time a

successor agreement is negotiated, the Union is free to take the position that the slate is wiped

clean and the criteria insist that the standards set forth in the Promotion Act be the starting point for



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negotiation. From there, the Union may waive its rights on its own accord. See City of

Bloomington v. Illinois Labor Relations Board, State Panel, 373 Ill. App. 3d 599, 612 (2007)

(Cook, J., dissenting) (explaining that the standards set forth in the Promotion Act are the

“default,” and from there the parties may go about negotiating changes). In the past, the Union and

the Village had agreed to promotion criteria different than what is set forth in the Promotion Act.

But the Union did not want to waive its rights for the upcoming 2010-2014 agreement, and neither

the Village nor the arbitrator has the ability to force those waivers.

¶ 15   Under the Labor Relations Act, permissive subjects of bargaining include matters that the

union has the right to insist on, such as the recognition of statutory rights. Wheaton Firefighters

Union, Local 3706 v. Illinois Labor Relations Board, State Panel (Wheaton Firefighters), 2016 IL

App (2d) 160105, ¶ 15. A party cannot insist on bargaining over a permissive subject to the point

of impasse. Board of Trustees of the University of Illinois v. Illinois Education Labor Relations

Board, 244 Ill. App. 3d 945, 949 (1993). Absent an agreement to the contrary, permissive subjects

of bargaining are not to be decided by the arbitrator. 5 ILCS 315/14(h) (West 2012); 80 Ill. Adm.

Code 1230.90(k), amended at 27 Ill. Reg. 7456 (eff. May 1, 2003). The Labor Relations Act does

not contemplate allowing an arbitrator to decide a statutorily designated permissive subject of

bargaining. Even though the Labor Relations Act is intended to foreclose strikes by police and fire

departments and provide an efficient procedure for the resolution of disputes (5 ILCS 315/2 (West

2012)), the General Assembly did not intend for the parties to designate all subject matter to the

arbitration process. The distinction between mandatory and permissive subjects of arbitration is in

place for a reason, and the arbitrator went beyond his authority by considering and deciding a

permissive subject, to the detriment of the Union.



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¶ 16   To be clear, the Village had no obligation to negotiate with the Union over this permissive

subject. But in the absence of negotiation, the Union is entitled to insist upon the baseline default

rights granted to its members in the Promotion Act. The Village cannot force a waiver of those

rights; it can only negotiate with the Union for a waiver as it had done in the past. Here, the waiver

was imposed through compulsory arbitration of a permissive subject—a result that overrides the

union members’ vested rights. The arbitrator cannot order the Union to accept any other rights or

obligations than those in the promotion statute which is what in effect happened by him ordering

the continued waiver of rights against the Union’s then-present will.

¶ 17   Two board decisions are featured prominently in the parties’ briefs and in the ILRB’s

decision: Village of Bensenville, 14 PERI ¶ 2042 (ISLRB 1998), and Wheaton Firefighters Union,

Local 3706 (Wheaton), 31 PERI ¶ 131 (ILRB State Panel 2015). The decisions essentially boil

down to a rule that “the mere submission to an interest arbitrator of a contract proposal pertaining

to a permissive subject of bargaining does not violate the statutory duty to bargain in good faith.”

Bensenville, 14 PERI ¶ 2042. In this vein, the Village argues that it did not commit an unfair labor

practice by merely submitting a permissive issue to the arbitrator. The Village’s position on review

capitulates that a permissive subject of bargaining was submitted to the arbitrator; the Village

simply argues that doing so does not constitute an unfair labor practice under Illinois law. The

Village also argues that the Union cannot demonstrate that it insisted to a bargaining impasse on

the subject, so the Union’s contention that the Village acted improperly in that way is insufficient

to substantiate a claim for an unfair labor practice.

¶ 18   Impasse is reached on a subject when neither party is willing to move from its respective

position. 51 C.J.S. Labor Relations § 233 (2016). In its answer to the complaint before the ILRB,



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the Village admitted that it began negotiations for a successor collective bargaining agreement and

that the parties commenced interest arbitration to address the outstanding issues. Under the Labor

Relations Act, arbitration is to be used to resolve impasses. See 5 ILCS 315/7 (West 2012); 5 ILCS

315/14 (West 2012). The parties did not agree on the promotion criteria during negotiations and

once they reached the arbitration hearing they were, as a matter of law, at impasse on the subject of

promotion criteria. Because the Union insisted on its statutory rights, the impetus was on the

Village to either negotiate for waivers or to accede to the statutory promotion scheme. Instead of

taking either of those acceptable paths, the Village allowed an impassed permissive subject of

bargaining to be put before and decided by the arbitrator.

¶ 19    At the arbitration hearing, the Union stated its position that the Village’s “proposal can’t be

properly before [the arbitrator] anyway” because the Village is asking the Union members “to give

up statutory rights that are set forth in the Fire Department Promotion Act.” The Union continued

by arguing to the arbitrator that “under the Public Labor Relations Act, you as an arbitrator only

have authority to address mandatory topics.” The Village acknowledged that “several provisions

in there would fall under the heading of permissive.”

¶ 20    Consistent with Bensenville and Wheaton, we take no issue with the general proposition

that merely submitting a permissive subject of bargaining to an arbitrator is not an unfair labor

practice. 1 Bensenville, 14 PERI ¶ 2042; but see id. n.8 (explaining that, in some jurisdictions, the

mere submission of non-mandatory subjects to an interest arbitrator constitutes a failure to

negotiate in good faith); Wheaton, 31 PERI ¶ 131. The parties are likewise free to submit a


        1
         We do, however, note that the parties dispute the correctness of the rule set forth in Bensenville
and Wheaton. This case does not give us occasion to decide the efficacy of that rule because the
circumstances here are sufficiently distinguishable.


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permissive subject to an interest arbitrator by agreement. Bensenville, 14 PERI ¶ 2042; Wheaton,

31 PERI ¶ 131. But when the arbitrator rules on the merits of a contested permissive subject over

objection and grants a status quo finding in favor of the employer, the rights of the union members

have been unlawfully infringed.

¶ 21   The distinguishing feature of Bensenville and Wheaton as opposed to this case is the

existence of prejudice. In both Bensenville and Wheaton, the holdings were based on the

proposition that, if a party objects to the consideration of a permissive subject and the arbitrator

does not consider it, the objecting party has no claim for an unfair labor practice because there is

no prejudice. Wheaton Firefighters, 2016 IL App (2d) 160105, ¶ 22. The reason that the mere

submission of a permissive subject was found not to be an unfair labor practice in those

circumstances is because if a party objects to the arbitrator’s consideration of a permissive issue,

then the arbitrator “ ‘shall not consider that issue.’ ” Id. (quoting 80 Ill. Adm. Code 1230.90(k),

amended at 27 Ill. Reg. 7456 (eff. May 1, 2003)). Thus, a party is not prejudiced by the submission

of the issue because interposing an objection precludes the arbitrator from considering and

deciding that issue. Id. ¶ 23 (“As the Union was able to remove the issue from consideration by

merely objecting to it, the Union was not prejudiced.”). But here, contrary to not considering the

subject, the arbitrator decided the issue on the merits in the face of the Union arguing that the

arbitrator lacked the authority to do so. The Union here was prejudiced by the Village’s conduct

because it caused the arbitrator to rule adverse to the Union on an impassed permissive subject.

¶ 22   Section 10(a)(4) of the Labor Relations Act makes it an unfair labor practice for an

employer to refuse to bargain collectively in good faith with a labor organization that is the

exclusive representative of public employees in an appropriate unit. 5 ILCS 315/10(a)(4) (West



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2012). When a public employer breaches its obligation to collectively bargain in good faith as

required by section 7 of the Act, it violates section 10(a)(4) and, derivatively, section 10(a)(1) of

the Act. Wheaton Firefighters, 2016 IL App (2d) 160105, ¶ 15. When an employer insists to

impasse on a permissive subject and its insistence results in prejudice to the union members’

established rights, the employer has committed an unfair labor practice. Midlothian Professional

Fire Fighters Ass’n, Local 3148, 29 PERI ¶ 125 (ILRB State Panel 2013). As alluded to in

Wheaton Firefighters, it is bad faith bargaining when one party has already indicated to the other

that it does not intend to relinquish its rights regarding a permissive subject of bargaining, and yet

the other party continues to press the issue and submit the issue to an interest arbitrator anyway.

See Wheaton Firefighters, 2016 IL App (2d) 160105, ¶ 23.

¶ 23   At the arbitration hearing and before the ILRB, the Village’s primary argument was that

the Union’s proposal should not be considered because it was not negotiated through the collective

bargaining process prior to the arbitration. Generally, before a matter can be decided through

compulsory interest arbitration, the parties must have negotiated and attempted to resolve the

matter first. 80 Ill. Adm. Code 1230.70, amended at 27 Ill. Reg. 7456 (eff. May 1, 2003). The

Village repeatedly argued that its position hinged on whether the Union’s proposal was “submitted

in a timely fashion so that the parties could engage in negotiations over it before it came to [the

arbitrator] in an interest arbitration context.” The arbitrator declined to address that argument and

focused on the substance.

¶ 24   The arbitrator did not rule that he lacked jurisdiction to decide the issue, nor did he ever

make any factual finding that the Union failed to adequately bargain on this topic prior to invoking

arbitration. No evidentiary hearing was held. There is nothing in the record that would allow us to



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make that adverse factual finding. The arbitrator ruled on the merits that status quo would prevail.

He did not make a finding that the Union, in fact, insufficiently bargained the promotion standards

prior to arbitration. In the arbitration ruling, on the issue of promotions, the arbitrator found for the

Village, granting its “offer” of status quo. The Village did not respond to the Union’s

prearbitration settlement offer (because it thought the relevant issue was improperly presented),

causing the arbitrator to take up the issue and decide it on the merits. In the arbitration award, the

arbitrator states that “the Village seeks to maintain the status quo.” He further stated in his order

that “the Village’s offer on promotions is therefore adopted.” The Village did not move the

arbitrator to vacate or modify the arbitration award. The Village likewise did not seek any

postdecision special finding that the Union’s bargaining offer was untimely.

¶ 25    This opinion should not be construed to express a denunciation of the Village’s bargaining

or arbitration tactics. Instead of addressing the mandatory/permissive issue, the jurisdiction issue,

or the prejudice to the union members, the arbitrator focused exclusively on the fact that the system

in place under the prior agreement was really not broken. The arbitrator rightly pointed out that

collective bargaining is best left up to the parties and that arbitrators should not get involved and

disturb the status quo when there are minimal or no grievances. The arbitrator’s practical

assessment is reasonable, but it is contrary to the law in this case. The result is that the Village and

the arbitrator combined to put a nonarbitrable issue into consideration with the resulting award

forcing the Union to waive statutory rights that it did not have to and did not want to waive.

¶ 26    The Village argues that “the Arbitrator’s conduct simply cannot be attributed to the

Village,” but it is inescapable that the Village putting the issue before the arbitrator and the

arbitrator exceeding his authority combined to deprive the union members of their rights. One



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could not happen without the other. The fact of the matter is that these firefighters have statutory

rights that they are fully entitled to insist upon. If they do so as they did here, neither the Village

nor an arbitrator may compel them to accept different rights than those guaranteed to them by the

General Assembly.

¶ 27   The Village seems to tacitly concede, though never outright say, that the arbitrator

exceeded his authority. The Village attempts to downplay the role that its own conduct had in the

parties arriving at this point and the fact that the error was invited. The Village refused to accept a

proposal that returned the firefighters to their statutory rights—a proposal that ensconced the rights

that the firefighters were unquestionably entitled to as a matter of law. The Village never

submitted a prearbitration settlement offer on the subject. Instead of recognizing the union

members’ vested rights, it asserted that if given the opportunity, it would submit a proposal that

was largely status quo. The Village, though, was not entitled to insist on anything. The Village was

obligated to accept the Union’s right to the statutory default promotion criteria and then, only

through negotiation, attempt to secure waivers. Though the arbitrator’s errors were one significant

cause, the Village’s conduct was instrumental in subjecting the Union to an unfair labor practice.

¶ 28   In addition to the foregoing, the fact that a permissive subject is included in one contract

does not make negotiations over that subject mandatory during the next negotiations. Allied

Chemical & Alkali Workers of America, Local Union No. 1 v. Pittsburgh Plate Glass Co.,

Chemical Division, 404 U.S. 157, 187 (1971). That is exactly what the arbitrator allowed to

happen in this case. He decided that since the subject had been negotiated and the system was not

broken, then it was his prerogative to keep the criteria the same for the successor agreement.

Because the parties did not bargain for any permissive modifications to the provisions of the



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Promotion Act this time around, the provisions in the Promotion Act are the default prevailing

criteria. The arbitrator cannot compel the Union to accept deviating terms and thereby force a

waiver of the union members’ statutory rights just because the Union did so in a previous

agreement and the system was not broken. Absent a negotiated waiver, the Village was not entitled

to seek, and the arbitrator was not entitled to grant, a status quo ruling on this permissive subject of

bargaining.

¶ 29    The Village argues that the only issue before the ILRB was whether submitting the

promotion issue to the arbitrator constitutes an unfair labor practice. But to construe this case so

narrowly is to avoid the reality of the situation. The permissive subject was presented to the

arbitrator, and the Village cannot blindly avoid the consequences of what followed. That is what

makes this case different from Bensenville and Wheaton which the Village so strongly relies upon.

Here, it is not just that the issue was put before the arbitrator, but that the consequence of the

Village’s conduct prejudiced the vested rights of the union members. See Wheaton Firefighters,

2016 IL App (2d) 160105, ¶¶ 22-23.

¶ 30    To summarize, the Promotion Act is clear. The statutory procedures and standards for

becoming a lieutenant can be modified only if the Union chooses to waive its members’ statutory

rights. 50 ILCS 742/10(e) (West 2012). Bargaining on those subjects is expressly permissive. Id.

The arbitrator cannot compel the firefighters to accept the Village’s proposal or the terms of the

previous agreement. The arbitrator cannot rule on the matter at all unless the parties agree to

resolve the issue in that manner. The Village’s submission of the subject to the arbitrator and its

refusal to accede to the union members’ clear statutory rights resulted in substantial prejudice and

constitutes an unfair labor practice.



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¶ 31                                    CONCLUSION

¶ 32   Accordingly, the decision of the Illinois Labor Relations Board is reversed. The cause is

remanded to the Illinois Labor Relations Board with directions that it vacate its order dismissing

the unfair labor practice complaint and enter an order that the Village of Skokie engaged in an

unfair labor practice.

¶ 33   Reversed and remanded with directions.




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